Immigration Action Will Increase Immigrants’ Ability to Switch Employers

By Allen Smith Dec 10, 2014
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One change resulting from President Barack Obama’s immigration action that will be “a game changer for HR” is the increased portability for green card applicants, according to Robert Groban Jr., an attorney with Epstein Becker & Green.

Penelope Lechtenberg, an attorney with Hinshaw & Culbertson in Rockford, Ill., agreed. She explained that to obtain a green card:

  • First there must be a labor certification application—referred to as PERM—filed by the sponsoring employer making clear that there are no qualified available workers in the United States.
  • Second, the employer files an I-140 immigrant petition, showing the employer has the ability to pay the wages promised in the labor certification and on the I-140, and that the immigrant has the college degree needed for the position.
  • Finally, the immigrant files the I-485 adjustment-of-status petition.

Currently, the last step cannot be taken until the petitioning immigrant is at the front of the line for a green card and there is an opening for his or her country. The lines extend for years for immigrants from some countries, such as China, India, Mexico and the Philippines, Lechtenberg told SHRM Online.

That wait is as long as nine years for some. During the whole time, an immigrant must stay with the initial sponsoring employer, or else start back at square one with a new sponsoring employer.

Not so under the new framework, she explained. The I-140 and I-485 will be able to be filed at the same time, and after 180 days, the sponsored employee may switch to a new employer, as long as that employer is similar, Groban noted. No one knows what “similar” means, though, added David Grunblatt, an attorney with Proskauer in its Newark, N.J., office.

Immigrants from one country may particularly stand to benefit: “This is especially a big deal for Indians,” Lechtenberg said.

New Retention Issues

Groban said the change will affect whether a company will want to invest time and money in someone who may leave for another employer.

There will be new retention issues for HR, he noted, but it also “opens up a bigger pool” of recruitable talent since employers now can attract workers from other companies who formerly had to stay with their sponsoring employers through the entire green card process.

Spouses of sponsored employees—certain H-4s who currently are not work-authorized—will be able to apply for work authorization and be granted open-market employment under the immigration action as well, noted Mercedes Badia-Tavas, an attorney with Barnes & Thornburg in Chicago.

Under the new processes, “a plethora of Indian and Chinese workers will move on in a much sooner fashion. It probably will cause more competition,” said Matthew Dunn, an attorney with Kramer Levin in New York City.

STEM OPT Expansion

Employers can also expect to have new recruiting opportunities open up once Optional Practical Training (OPT) for science, technology, engineering and mathematics (STEM) students is expanded, according to Mark Koestler, an attorney with Kramer Levin in New York City.

Currently, the students get 12 months for OPT, plus 17 additional months if their employer is registered with E-Verify, Dunn noted.

OPT might be extended under the immigration action from two to four more years, Koestler said.

But while the immigration action will help employers recruit “top-notch brain power,” Dunn said the H-1B visa cap needs to be moved up from the current 85,000 to 100,000 with a market-based escalator to have more of an impact.

Employees Who Come Forward Now

More immediately, employers must decide how to deal with employees who come forward now, excited that they are seemingly protected by the expanded Deferred Action for Childhood Arrivals (DACA) or Deferred Action for Parental Accountability (DAPA) program—the only changes from the immigration action thus far that Greg Berk, an attorney with Sheppard Mullin in Orange County, Calif., called “concrete.”

It could take the government five to six months to get plastic permits in the hands of the expanded DACA and DAPA employees. Until then, employees will probably keep their originally falsified identifications secret and not come forward until they have work permits from the government, Berk predicted.

Under California law, employers can’t penalize employees who come forward with legalized status, even if preceded by fake documentation, and will have to jerry-rig their HR systems to retain employees’ seniority dates when they do come forward with legitimate work authorization documents, he noted.

But if an employee comes in now and says, “Thank God, the government finally answered my prayers,” and fesses up about the earlier fake documents without having any legal document to present, the employer will have to terminate the worker and ask him or her to reapply for an open position in order for the employer to be in good standing with U.S. Citizenship and Immigration Services, according to Groban.

I-9 enforcement has been more vigorous under the Obama administration than under President George W. Bush, Groban told SHRM Online, saying there have been “enormous fines” for noncompliance. Groban said if a business operates on a model of employing undocumented workers, the government will move to seize the company’s assets.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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