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Employers must undergo balancing act during implementation period
Nearly five million undocumented immigrants residing in the United States would be eligible for work authorization under an executive action announced by President Barack Obama.
Announced Nov. 20, 2014, the president’s actions will allow almost half of the nation’s estimated 11-12 million undocumented immigrants three years of deportation relief and work authorization. While experts agree that U.S. employers will benefit from a suddenly larger labor pool, HR will have to be very careful to ensure compliance with employment verification requirements during the implementation period. “It’ll be a balancing act,” said David Grunblatt, partner and head of the Immigration & Nationality Group at law firm Proskauer. “Employers will be caught between a rock and hard place, as they have to be final arbiters on what the law is when employees present themselves as undocumented,” he said.
The president’s plan also included several policy initiatives aimed at “streamlining” the employment-based immigrant visa system, such as long-awaited guidance clarifying “specialized knowledge” for L-1Bs, H-4 spouse work authorization, increasing worker portability for those waiting for a green card, expanding opportunities for foreign students and entrepreneurs, and modernizing the labor certification process for employment-based visas.
“The president should be lauded for unveiling many positive employment-based initiatives,” said Angelo Paparelli, partner in the Business Immigration Practice Group of Seyfarth Shaw, based in Los Angeles and New York. “These will go a long way to improving America’s dysfunctional immigration system, but the unveiling omits key provisions and reveals just how daunting the challenge of implementation will be,” he added.
The announcement drew sharp criticism from congressional Republicans, who said the unilateral move has destroyed hopes for a legislative overhaul of the immigration system. House Judiciary Committee Chairman Bob Goodlatte, R-Va., announced that his committee will hold a hearing on the president’s action Dec. 2, 2014.
Deportation Protection Expanded
The president’s plan will offer over four million undocumented individuals relief from deportation and provide them the opportunity to apply for temporary work authorization under a program called Deferred Action for Parental Accountability (DAPA). Undocumented parents of U.S. citizens and legal permanent residents would be able to legally live and work in the U.S. for a period of three years, if they have lived in the country for at least five years, since Jan. 1, 2010.
Details about eligibility requirements for DAPA and how to apply will be finalized within the next six months but eligibility will include registering, submitting biometric data, passing a criminal background check and agreeing to pay taxes. What types of crimes would render someone ineligible and what is meant by paying taxes was left unclear.
The U.S. Citizenship and Immigration Services (USCIS) expects to begin accepting applications for DAPA May 19, 2015. Deferred action will grant beneficiaries Social Security numbers and work permits, but not permanent legal status or a pathway to citizenship.
The new deportation protections are a year longer than under an existing program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA). Obama said that the DACA program also would be revised to provide three years of relief and that the program would be expanded by moving the cutoff date by which one must have arrived to be eligible to Jan. 1, 2010, from June 15, 2007, and eliminating the upper age limit on qualifying, provided the applicants entered the U.S. as children.
The White House estimates about 270,000 people will qualify under the expanded DACA program, bringing the total number of people eligible for that program to about 1.5 million. USCIS will begin accepting applications for the expanded DACA Feb. 18, 2015.
The plan does not include any relief for parents of DACA recipients, nor childless undocumented immigrants.
“The deferred action is the splashiest part of the announcement,” said Kim Thompson, partner in the Atlanta office of Fisher & Phillips and chair of the firm’s Global Immigration Practice Group. “For certain industries more than others, this will be crucial. But all employers will have access to a greater pool of workers,” she said.
Industries such as agriculture, food processing, construction and landscaping will be hugely impacted, experts agreed.
The enforcement mechanism to keep undocumented workers out of the workforce would remain unchanged, however, creating uncertainty during the program’s implementation time frame. Federal immigration enforcement officers will be given new instructions about who they should target for deportation and who they shouldn’t, according to Immigration and Customs Enforcement (ICE). But until work authorizations are processed for eligible beneficiaries, employers will have to maintain vigilance about not employing people that lack the legal right to work. And more than half of undocumented workers currently in the country will still not be covered under this deferred action.
“The most glaring omission involves the lack of any discretionary deferral of enforcement against employers who become aware that employees are eligible for or have applied for DAPA benefits,” said Paparelli. “I foresee a long, rough patch ahead for employers, from now to the end of 2016, before businesses can access this huge but presently unauthorized workforce.”
The timeframe for completing the new pending workload depends on a variety of factors, according to USCIS. “Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt,” the agency said.
“I don’t expect you’re going to see employment authorization documents issued to beneficiaries until late next year,” said Thompson. “USCIS won’t accept applications until May. The agency takes at least 90 days to process those applications. With four million applications coming in, it won’t happen right away,” she said.
Meantime ICE “can and likely will continue its worksite enforcement of the I-9 compliance regime,” said Paparelli. “The DAPA beneficiaries could be out of a job because, long before work permits are issued, ICE may inspect employer records and notify employers of unauthorized workers whose employment must be terminated,” he said.
ICE will proceed with their audits and inspections and will expect employers to terminate individuals not authorized to work, agreed Thompson. “But we might see ICE willing to work with employers if individuals flagged in an audit are identified for this deferred action, she qualified. “ICE may work with employers and provide a pass, or some period of time for the eligible worker to apply for the benefit instead of requiring termination. It’s possible,” she said.
What if an employee self-identifies after receiving authorization? “This will present a dilemma for the employer,” said Grunblatt. “Should employers update their records and continue to employ the individual, or terminate them for falsification of records? We’ll need more guidance on how employers are expected to update I-9s or complete new I-9s for these employees.”
Susan Cohen, founder and chair of the immigration practice at Mintz Levin in Boston, cited an ICE FAQ that instructs employers that it is permissible to accept new identity documents and continue to employ the individual. “If they self-identify before receiving work authorization, however, employers have an obligation to take them off their payroll,” she added.
“I am worried about how we deal with individuals who self-identify to take advantage of the program, and the impact on employers waiting for them to apply for the benefit that will allow them to work legally,” said Thompson. “Employers will be put in a position where they are required by law to terminate what might be a good, long-tenured employee because they self-identified too soon.”
Thompson advised human resources professionals to communicate the announcement to their workforce in a neutral manner, if at all. “Say that it may benefit ‘someone you know,’ without pointing people out, to stay removed from knowing about a person’s undocumented status,” she said. “If someone comes to HR and starts to talk about the announcement or the program, refer them to immigration attorneys or to the USCIS website, but don’t talk about it, because you will then be put on notice about that person’s status. It’s a dangerous position for employers, trying to help longtime workers and also protect themselves.”
There’s another area of concern buried deep in the White House announcement that employers should know about, said Paparelli. The sentence references an inter-agency working group exploring “ways to ensure workers can avail themselves of their labor and employment rights without fear of retaliation.” The throwaway mention is “likely enhanced worksite enforcement efforts arising from the administration’s decision to develop greater cooperation between and among ICE, the Department of Labor’s Wage and Hour Division, the National Labor Relations Board and the Justice Department’s Office of Special Counsel for Unfair Immigration-Related Employment Practices,” he said.
Business, Employer Reaction
The U.S. Chamber of Commerce offered a muted reaction to the president’s announcement, saying that the only way to reform the immigration system was through legislation that would include reforms to the H-2 programs that deal with workers in agriculture, construction and service industries, employment verification and border security.
The Council for Global Immigration and the Society for Human Resource Management issued the following statement: “We appreciate the president’s continued dedication to immigration reform. However, creating a system that works for employers requires the president and Congress to work together. We call on our nation’s leaders to enact reforms that will allow U.S. employers to recruit and retain top world talent and provide tools to ensure the hiring of a legal workforce. Our economy will truly benefit when they have fixed a broken immigration system that has stifled growth and caused problems for U.S. employers trying to compete globally.”
Roy Maurer is an online editor/manager for SHRM.
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