Tag Archives: Immigration

How Will the End of the Deferred Action For Childhood Arrival (DACA) Affect Employers?

Contributed by Sara Zorich, September 14, 2017

On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”

Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without documentation, yet met several guidelines, could request consideration of deferred removal proceedings and request authorization to live and work in the United States legally. Currently, the program shields around 800,000 young undocumented immigrants from deportation and allows them to work legally.

U.S. Citizenship and Immigration ServicesU.S. Citizenship and Immigration Services (USCIS) issued new guidance on their website as of September 5, 2017 regarding initial DACA requests and DACA renewals. Here are the key points to note:

  • DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement
  • No new DACA applications will be considered, but applications filed by September 5, 2017 will still be processed
  • Current DACA recipients whose permits and or work authorization expires between now and March 5, 2018, have until October 5, 2017 to apply for renewal of these benefits

In light of this change, employers are recommended to review their Form I-9’s and identify any individual whose work authorization is going to expire on or before March 5, 2018. Employers should notify these employees of the date their work authorization will expire and remind them that the company cannot continue to employ the employee past this expiration date unless the employee is able to provide proof of continued work authorization. To reiterate, any DACA renewals must be filed no later than October 5, 2017 or USCIS will not process them. Read the USCIS announcement for details.

However, some Employment Authorization Document (EAD) categories (other than DACA) have been granted a 180 day automatic extension to the employee’s work authorization deadline. Visit the USCIS website for more information on the eligibility requirements for the Automatic Employment Authorization Document (EAD) Extension. Thus, employers must be careful to follow the applicable guidelines when addressing the proper end date of an employee’s work authorization and reauthorization requirements.

Final Takeaway: Employers must understand that they MAY NOT discriminate and cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.

We anticipate that Congress may now attempt to fast track some type of immigration reform related to those persons that were formerly covered under DACA, but only time will tell.

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

 

Immigration Updates

Contributed by Sara Zorich

Since Congress has recessed for the holiday break, no immigration reform bills and/or comprehensive immigration reform bill is slotted for vote in 2013.  It appears that there will be a major push for the topic to be addressed during 2014.  We anticipate that mandatory E-Verify will be a component of any immigration bill passed, thus all employers must be cognizant of pending immigration reform.  We will keep you updated of the developments in 2014.

December has been a busy month for E-Verify updates.  The U.S. Citizenship and Immigration Services (USCIS) issued a number of announcements regarding updates to E-Verify policies and procedures:

  • There is a new page for employers on E-Verify that explains the role of E-Verify Monitoring and Compliance. (http://www.uscis.gov/e-verify/employers/monitoring-and-compliance) Employers should review this information and note that their usage of E-Verify is being monitored.  Suspected misuse or abuse of the program is being referred to appropriate agencies for enforcement.  Misuse/abuse of the program could lead to an employer to incur fines, back wage payments and/or debarment from the program.
  • On December 8, 2013, E-Verify released new Memorandums of Understanding (MOU) for those employers participating in E-Verify.  The revision date noted on the new MOUs is June 1, 2013.  The effective date of the MOU for new users is December 8, 2013.  Existing E-Verify employers/users do not need to execute a new MOU but are bound by the new or revised MOU that applies to their access method.  The effective date of the new MOU for existing users is January 8, 2014.  A copy of the new MOUs can be found at: http://www.uscis.gov/e-verify/publications/memos/publications-memorandums. Employers are encouraged to review the new MOU applicable to them to ensure they are aware of their new and continued obligations under the E-Verify program.
  • The E-Verify participation posters have been modified, requiring less ink while printing.  Employers currently enrolled in E-Verify do not need to print these new posters so long as they printed and have the prior versions posted in their workplace.  New employers signing up to E-Verify will be prompted to download, print and post the English and Spanish Notice of E-Verify Participation and the Office of Special Counsel Right to Work posters after enrollment and completing the online tutorial. Employers can access the posters after logging in to E-Verify.

DOMA is Dead – Implementation of the Supreme Court Ruling in U.S. Immigration

By Jacqueline Lentini McCullough

On June 26, 2013, the Supreme Court unequivocally affirmed there is no legitimate reason for the federal government to discriminate against married couples based on sexual orientation. The Defense of Marriage Act (DOMA) of 1996 defined marriage as a legal union between a man and a woman. The implication of the Supreme Court’s historic decision in the immigration context is that the U.S. must treat married gay and lesbian couples the same way it treats married heterosexual couples.

While many details of how the immigration process will be implemented are still uncertain, U.S. Citizenship and Immigration Services (USCIS) published Frequently Asked Questions (see www.uscis.gov) regarding same-sex marriage on July 2, 2013. A same-sex marriage can now be the basis for an immigrant visa for a spouse married to a U.S. citizen. In evaluating the petition, USCIS will look to the law of the location that the marriage took place to determine if it is a valid marriage for immigration purposes. The law of the state of residence must also be taken into account. Further fact specific circumstances may develop as federal immigration benefits are applied.

Immigration Reform Bill Revealed and the Debates are On…

Contributed by Sara Zorich

Last week the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced.  Since then, there have been a series of congressional hearings to discuss the provisions of the Act.  It is clear from the hearings that there are strong opinions on the bill from many communities that would be affected.  In general, the bill proposes sweeping reform to the country’s broken immigration system.  A summary of the main sections covered by the bill is as follows:

  • Border Security – improving border security including increased surveillance and patrol
  • Legalization and Legal Immigration – work authorization and path to citizenship for individuals currently in the United States with unlawful status; requirement to pay back taxes as part of the application process
  • Legal Immigration – overhaul of the current system for family and employment based immigration
  • Mandatory E-Verify and Increase/Additional Penalties – all employers would be required to use the E-Verify system for employment verification in addition to the Form I-9 within the required phase in periods; employers with more than 5,000 employees would be phased in within 2 years, employers with more than 500 employees will be phased in within 3 years and all employers within 4 years; significant fines from $3,500 – $7,500 per worker for knowingly hiring or continuing to employ unauthorized aliens and fines for failure to comply with E-Verify use requirements; establishes the potential for an electronic Form I-9 in conjunction with E-Verify
  • H-1B Visa Reform – increasing the current cap for the H-1B visa category, additional regulations aimed to curtail alleged H-1B abusers by requiring “H-1B dependent employers” to pay significantly higher wages and modification of application/posting requirements for all H-1B employers
  • New W-Visa Program for Lower-Skilled Workers – new visa category for foreign workers to perform services or labor for registered employers in registered lower skilled positions; the number of visas in this new category would fluctuate annually and is dependent on unemployment rates, job openings, bureau recommendations and additional data
  • Agricultural Job Opportunities – current undocumented farm workers will have an opportunity to obtain legal status

Employers should be aware that the congressional hearings have begun and nothing in the current bill is set in stone.  The bill is certain to go through rounds of revisions before it is set for any vote before the Senate or the House of Representatives.  However, at least thus far, mandatory E-Verify is a pillar of the bill and its continued inclusion seems certain.

Since, in recent years, the government has only increased its enforcement of I-9 and immigration compliance, employers should consider reviewing their current processes and policies in advance of any implementation of mandatory E-Verify.  Further, as a reminder, employers MUST utilize the new Form I-9 (Rev. 03/08/13)N no later than May 7, 2013.  Starting on May 7, 2013, employers are not allowed to use prior versions of the Form I-9 for employment verification of new employees.

Who’s creating jobs now? Stall in U.S. Immigrant Entrepreneurship

Contributed by Jacqueline Lentini McCullough

According to a study released last month by the Ewing Marion Kauffman Foundation, the U.S. is experiencing a steady decline in the percentage of immigrant founded start-ups. Nationwide, the percentage of immigrant founded start-ups declined from 25.3 to 24.3 percent since 2005. In Silicon Valley, the situation is even more pronounced with the percentage of immigrant start-ups declining from 52.4 to 43.9 percent since 2005. If immigrants cannot successfully be employed by the companies they create, the incentive to keep the company located within the U.S. diminishes.

According to the Kauffman Foundation’s research findings, a byzantine immigration system and unfriendly environment in the U.S. is at fault and creates a “reverse brain drain” in the U.S. The research findings were conducted by Vivek Wadhwa, an Indian immigrant and academic researcher who recently released a book on the subject entitled, “The Immigrant Exodus: Why America is Losing the Global Race to Capture Entrepreneurial Talent.” According to Mr. Wadhwa’s book, the U.S. is experiencing an unprecedented halt in high-growth start-ups founded by immigrants. Without  immigration policy changes addressing the issue of limited green cards for skilled foreign nationals, the U.S. will continue to lose key job creators.  Mr. Wadhwa has launched a website funded by the Kauffman Foundation, http://www.immigrantexodus.com, as a resource for journalists and immigrant entrepreneurs.

Indian foreign nationals in the U.S. currently comprise the highest number of U.S. businesses founded by immigrants within the last six years at 33.2 percent.  Indians created more engineering and technology firms than immigrants from the next nine immigrant-founder countries combined. The remaining countries include the following: China (8.1%), the United Kingdom (6.3%), Canada (4.2%), Germany (3.9%), Israel (3.5%), Russia (2.4%), Korea (2.2%), Australia (2.0%), and the Netherlands (2.0%). Immigrant founders are most likely to start companies in the innovation/manufacturing related services, and software industries, employing approximately 560,000 U.S. workers. These industries combined generated an estimated $63 billion in sales from 2006 to 2012, emphasizing the importance of high-skilled immigrants to U.S. economic expansion.

Not surprisingly, while the U.S. is experiencing immigrant start-up stagnation, India and China are seeing the rates of start-up companies increasing.

USCIS Extends Expiration Date of Current I-9 Form

Contributed by Sara Zorich

On August 13, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that employers should continue to use the current Form I-9 available until further notice.  Employers can find the current I-9 Form at http://www.uscis.gov/files/form/i-9.pdf.  USCIS has indicated that this current form should continue to be used even though there is an expiration date of August 31, 2012 on the form.

In March 2012, USCIS published a proposed revision to the Form I-9 and accepted comments from the public on the proposed revisions through May 2012.  However, USCIS has not accepted the new form and is instructing all employers to continue using the current I-9 form until further notice.