BNA Workplace Immigration Report. Executive Action Likely to Impact Employers Of Less-Skilled Workers, Practitioners Say. By Laura D.

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1 BNA Workplace Immigration Report Executive Action Likely to Impact Employers Of Less-Skilled Workers, Practitioners Say By Laura D. Francis Dec. 4 Although President Barack Obama's executive action on immigration contains nothing directly pertaining to lesser-skilled foreign workers, the action does have implications for their employers, practitioners said Dec. 3. Notice what's missing from the president's action, ImmigrationWorks USA President and Chief Executive Officer Tamar Jacoby said during a teleconference sponsored by the organization, which advocates for an immigration overhaul on behalf of small and mid-sized businesses. Jacoby said there are no fixes of any kind to the legal system for less-skilled immigrants, including the H-2A agricultural guestworker program and H-2B low-skilled, nonagricultural guestworker program. She added that, despite an overhaul of the Department of Homeland Security's immigration enforcement priorities, there also are no changes to the I-9 employment eligibility verification process, including E-Verify. In his Nov. 20 executive action, Obama took a kitchen sink approach to changes to highskilled immigration, Jacoby said. Those changes include allowing the spouses of certain H- 1B highly skilled guestworkers to work, providing additional visa opportunities for foreign entrepreneurs, expanding optional practical training and making it easier for H-1B workers with approved employment-based visa petitions to change jobs while waiting for a green card (8 WIR 753, 11/24/14). But she said the portion of the executive action that creates a new deferred action program for the undocumented parents of U.S. citizens and lawful permanent residents has the greatest potential to impact employers of lesser-skilled immigrants. The deferred action for parental accountability (DAPA) program, modeled on the deferred action for childhood arrivals (DACA) program, additionally requires that individuals have been in the country for at least five years and pass a criminal background check. Employees Not Always Authorized According to Jacoby, most employers hope and believe that their employees are authorized to work in the U.S., but we know that's not always the case.

2 Several attorneys participating in the teleconference were asked for advice in responding to a series of hypothetical scenarios employers could face if their workers are undocumented and apply for the DAPA program. First, Jacoby asked whether an employer should say something up front to its employees, and what action an employer should take if an employee says he or she is planning on applying for DAPA. Anthony Weigel of the Weigel Law Office in Grain Valley, Mo., said employers are more at risk of attracting the attention of Immigration and Customs Enforcement if they already have certain risk factors. Those risk factors include having already been audited by ICE, being a federal or state contractor and being located in a state that conducts its own immigration-related work-site enforcement, he said. Employers with other compliance issues such as having been the target of an investigation by the Department of Labor's Wage and Hour Division or Occupational Safety and Health Administration also could put them on ICE's radar, he said. Weigel pointed out that ICE has been very active in auditing employers' I-9 forms. We've got a lot of enforcement activity that I don't think's going to go away after the executive action, he said. Even for the average employer that doesn't have any risk factors, Weigel said he takes a conservative approach and would advise against preemptively saying anything to employees about DAPA. We've got a lot of enforcement activity that I don't think's going to go away after the executive action, according to Anthony Weigel of the Weigel Law Office. Employment Letters But Weigel acknowledged that DAPA will require applicants to prove that they have been in the U.S. for five years, and one of the ways of doing so is a letter from an employer stating that they have worked there. He said it would be helpful if the employer has a policy regarding requests for employment letters, which direct employees to contact a certain office and fill out a form. But Lynden Melmed of Berry, Appleman & Leiden in Washington cautioned that employers that don't already have such a policy shouldn't now establish one in response to the president's executive action. Instead, Melmed said, employers without such policies should consider posting notices that refer employees to local bar organizations or other groups that could help them with their applications. Weigel warned that employers with risk factors shouldn't post a notice. Weigel said an employer only is implicated under the Immigration and Nationality Act for knowing employment of an unauthorized worker, and someone who requests a letter stating that he or she has worked for the company isn't necessarily establishing that knowledge. Such letters are used for multiple purposes, including applying for loans and mortgages, he said. 2

3 Greg Siskind of Siskind Susser in Memphis, Tenn., pointed out that employers may wind up not having to provide documentation in support of a worker's DAPA application. He said his experience from DACA is that most workers leave a paper trail establishing their presence in the U.S., and can get the information they need from sources other than their employers. In fact, Siskind said, he advises immigrant clients who are applying for DACA not to seek documentation from their employers if they can avoid it. Documentation Related to Children Siskind added that, because DAPA is aimed at parents, there likely will be a paper trail associated with their U.S. citizen or lawful permanent resident children, such as school and health records. Therefore, he said, it is unlikely that applicants for the program will have to rely on their employers to prove their presence in the U.S. Weigel pointed out, however, that it could be as much as a year before undocumented immigrants actually receive employment authorization documents under DAPA. That raises concerns about employees who have applied but not yet been approved. He suggested that the Department of Homeland Security consider providing interim work authorization for undocumented employees who show receipts indicating that their DAPA applications have been accepted for processing. Leon Sequeira, a solo practitioner in Kentucky, said one wrinkle is the employee who alerts an employer that he or she has applied for DAPA and later is denied. He said he doesn't know what would be considered a reasonable period of time to wait for a decision on a DAPA application, but at some point the employer either will have to fire the employee or run the risk of knowingly employing an unauthorized worker. Fragomen attorney Patrick Shen said he would strongly discourage refusing to hire a DAPA recipient on account of uncertainty about the program's future. Guidance on New Identities The second scenario Jacoby presented was an employee who has been approved under DAPA and admits to the employer that he or she has been using a fake identity in order to work. The employee now wishes to work lawfully using his or her real name and new EAD. Melmed said this scenario isn't unique to DAPA or even DACA, and happens on a regular basis when undocumented immigrants gain legal status through other means. He said DHS guidance issued after the launch of the DACA program makes the answer straightforward. Under that guidance, Melmed said, employers should complete a new I-9 form with the employee's new Social Security number and identification information, but retaining the original hire date. The new I-9 form should be attached to the old I-9 containing the false identity, he said. Employees who present new information also should be run through E-Verify if the employer participates in the program, Melmed said. He said a tentative nonconfirmation a mismatch between the employee's provided information and that contained in government records can't be ruled out, but is unlikely considering that someone recently approved under DACA or DAPA should have current information maintained by the DHS. 3

4 Melmed said if an employer follows that guidance, it will be in a pretty good spot to defend itself against charges stemming from an I-9 audit. Patrick Shen of Fragomen, Del Rey, Bernsen & Loewy in Washington said employers with strict honesty policies may wind up having to terminate employees who reveal that they lied about their identities. The Immigration Reform and Control Act, which legalized many undocumented immigrants in the country at the time, contained a specific prohibition against employers taking action against beneficiaries under the law, Shen said. No such prohibition came with Obama's executive action. However, he added that there may be employers with a large portion of their workforce that come forward with new identities under DAPA. The question is whether the employer is willing to lose a significant portion of its workforce in order to comply with its honesty policy, Shen said. He recommended that employers in such cases work with counsel to change their honesty policies rather than engaging in inconsistent enforcement, which can lead to discrimination claims. Past Is Not Erased' Louis Moffa of Montgomery McCracken Walker & Rhoads in Cherry Hill, N.J., said the past is not erased just because a worker who previously was undocumented now has work authorization, meaning that the employer did hire someone who was unauthorized. He said additional guidance from the DHS would be helpful in this area. At the same time, Moffa said an employer's correction of previously false identity information helps to establish that it didn't knowingly hire an unauthorized worker to begin with. Siskind agreed that the DACA guidance was helpful, but he said more is needed. He suggested that the DHS may provide more detained guidance on the DAPA program because it impacts a larger population. Even though Obama has stressed that his executive action is revokable at any time, Siskind said it would be unlikely that he or a future president including a Republican would terminate the DAPA program immediately. He added that any uncertainty about DAPA recipients' future status isn't a reason not to hire someone with an EAD granted under the program. Under the Immigration and Nationality Act's anti-discrimination rules, valid work authorization documents can't be rejected just because someone isn't a citizen or lawful permanent resident, Siskind said. He said hiring could be a big issue following the launch of DAPA because there will be a lot more mobility among jobs once formerly undocumented workers get EADs. Shen agreed, saying he would strongly discourage refusing to hire a DAPA recipient on account of uncertainty. Although those workers may not bring a lawsuit, he said the Justice Department's Office of Special Counsel for Immigration-Related Unfair Employment 4

5 Practices can and does prosecute employers that engage in document abuse, or the rejection of facially legitimate work authorization documents. Advance Parole Leading to Green Cards? Siskind also mentioned the potential importance of the portion of the executive action on advance parole, a travel document that allows undocumented immigrants to leave the U.S. and not be subject to the three- or 10-year bar from re-entry. The bars normally prevent an undocumented immigrant who leaves the U.S. from returning lawfully for either three years or 10 years, depending on how long he or she was in unauthorized status in the U.S. Advance parole allows the immigrant to be treated as if he or she hasn't actually departed the country. Although Siskind said immigrants normally need good reason to request advance parole, he thinks many who are approved under DAPA will qualify. That means, he said, there is the possibility that DAPA recipients will be able to leave the U.S. on advance parole, return, and apply for a green card through regular channels, including employer sponsorship. Siskind said that situation already is playing out for some immigrants approved under DACA. Although employers will have to foot the bill to sponsor an employee for a green card, it is something they may have to consider if they want to retain valuable employees, Siskind said. The additional mobility that DAPA will provide will allow those workers to find an employer that will sponsor them, he said. But Jacoby pointed out that current law only provides 5,000 EB-3 visas for low-skilled workers per year, even if employers do petition for their green cards. Siskind said the bigger issue is going to be an increase in the wait times for such visas, and that is where Congress will need to step in and increase the annual cap. He said, however, that the backlog could be alleviated by some of the suggestions that come out of an interagency working group convened as part of Obama's executive action. One of the possible changes being floated is the recapture of unused green cards from previous years so that they can be used in subsequent years, Siskind said. He said that may not help low-skilled workers much, as those unused visas will filter first through the EB-1 and EB-2 visa categories for high-skilled workers. 5