Immigration Issues Remain Unresolved

By John Scorza Mar 26, 2015
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Congress can’t get it together on immigration, courts are blocking major White House actions and the Obama administration is keeping employers waiting for regulatory guidance. On all fronts, key employment-related immigration issues are up in the air.

In Congress, legislative action is stalled on increasing the cap on H-1B visas—temporary visas for highly educated foreign professionals. Employers are expected to file as many as 200,000 H-1B visa applications starting April 1, but only 85,000 visas will be available, according to Rebecca Peters, director and counsel for legislative affairs at the Council for Global Immigration (CFGI).

A Senate bill would adjust the cap on H-1B visas based on market demand. CFGI favors that approach, said Peters, who moderated a March 23 session at the Society for Human Resource Management’s 2015 Employment Law & Legislative Conference in Washington, D.C. But she didn’t hold out much hope for the bill to be enacted, citing the political divisions within Congress.

“Getting anything done on a bipartisan basis is going to be a real challenge,” Peters remarked.

President Barack Obama doesn’t have the authority to raise the H-1B visa cap. But, as the result of executive actions on immigration that Obama announced in November 2014, some spouses of H-1B holders will become authorized to work. About 180,000 spouses of high-skilled foreign guest workers who are awaiting a green card will be allowed to file for work authorization in the United States beginning in May 2015.

Other executive actions from Obama are on hold, including programs that would provide temporary relief from deportation and work authorization to millions of undocumented migrants who have strong family ties to the United States. The Deferred Action for Childhood Arrivals (DACA) program would benefit people brought to the United States as children, while another program would provide relief to parents of children who are U.S. citizens or legal permanent residents.

These programs are being challenged in court and their future is uncertain. If they’re tied up in court for the last two years of Obama’s term, they might never be implemented. “The clock might be running out on the Obama administration,” Peters said.

But if the programs take effect, employers will need to verify the immigration status of their entire workforce and prospective employees. “It’s important for us as HR professionals not to make any assumptions about anyone’s status,” said Elena Anderson-de Lay, director of mobility and visa services at The Brookings Institution. She suggested that E-Verify—a federal Internet-based system that allows businesses to determine employment eligibility—could give employers some security against hiring illegal workers.

Congress could make E-Verify mandatory for employers, Peters noted. “If anything has a chance of moving forward this year, it’s probably E-Verify,” she said.

Obama’s executive actions also called for the implementation of a “Trusted Employer” program designed to streamline immigration-related paperwork. The program, which CFGI supports, could eliminate duplicative filing requirements and government review of immigration documents from employers that have a proven record of compliance with immigration laws and regulations. The regulations are being finalized by the White House, and there’s a good chance they’ll contain deference to trusted employers, said Justin Storch, manager of agency liaison at CFGI.

“It will make everything so much more predictable and manageable,” Anderson-de Lay said.

John Scorza is associate editor of HR Magazine.

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