Congress’ “Mission Accomplished” Immigration Moment – For Employers, Now What?
In June of 2013, after extensive bi-partisan work, the U.S. Senate passed S. 744, its vision of enforcement-rich comprehensive immigration reform. Many were hopeful as attention shifted to the U.S. House of Representatives to act. In early-July 2013, House Speaker Boehner stated, “The House is going to do its own job in developing an immigration bill.” Months later, in late-January 2014, the Speaker released his Standards for Immigration Reform. After continued delay on advancing immigration reform legislation, Congress was recently forced to respond to the growing migration of Central American children and the need to fund government agencies, but the Senate failed to advance a directed solution and the House approved an inadequate, still-born bill.
Congress closed out its work schedule with the House passing a bill calling for the end of the Administration’s stop-gap measure affording deferred action on deportation for young people residing in the U.S. since June 15, 2007 (“DACA”), first authorized in 2012 and extended in 2014. This last act was the capstone of Congress’ work on immigration for 2014 and marked a dramatic shift in bi-partisan support for legislative action similar to DACA over the last six years.
Given that the House failed to meaningfully act, the Administration promises to take further action, most likely to extend the policy of deferred action. The scope and form of that action remains uncertain. Presuming the Administration’s actions substantially increase the number of individuals granted a temporary reprieve from detention and proceedings, the key question for employers is whether or not these people will have the ability to legally work in the U.S.? The impact of the answer will be significant.
If expanded deferred action includes the grant of work authorization, employers should be prepared to deal with the same issues associated with DACA beneficiaries. Employers will be presented with new or different documents that indicate an employee’s legal name and status, which may differ from current records. The USCIS’s guidance relating to DACA directs employers in certain cases to complete new I-9 forms and run existing employees through E-Verify. If an employer discovers a substantial number of its workers have benefitted from a new, expanded program, the government will likely know about it from the USCIS applications and new E-Verify data. Employers with a substantial number of newly-authorized workers may be likely targets for ICE audits. Both affected employers and employees will be reliant upon either Congress’ action to reform immigration laws, or the uncertainty of the next Administration’s actions when the temporary periods of status and work authorization expire.
As challenging as expanded deferred action with work authorization would be for employers, it would be much worse if beneficiaries are not granted work authorization. The government would almost certainly receive a steady flow of employer information from individual applicants, so the risk of an ICE audit or investigation would likely increase. If the byproduct of expanded deferred action results in ICE training more personnel for I-9 audits, the volume of audit activity could increase, with all that it would entail.
All of this uncertainty comes at a time when employers are increasingly hiring for a wide variety of jobs in our economy. Therefore, it is critical that any expansion of grants of deferred status provide individuals with work authorization. A failure to do so would compound the impact of Congress’ actions and inactions. To the extent that DACA has been a success, a key component of that has been granting both status and the ability to work legally in the U.S.
In the interim period, employers should keep their focus on developing and maintaining solid I-9 and E-Verify processes and procedures. It will likely be a bumpy ride for the next couple of years in this area of compliance. Hang in there.