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Immigration reform: what employers should watch for

While there appears to be real momentum to pass a comprehensive bill to reform the nation’s immigration system, employers should also be aware of some smaller-scale developments and proposed changes in immigration law. 

Headlines on immigration reform talk about the push for legislation strengthening border security, targeting employers who hire illegal immigrants, making it easier to sponsor foreign workers under special visas, and providing a path to citizenship for the millions who are undocumented.

However, in addition to keeping an eye on these “larger” issues and how they may impact the workplace, employers should be aware of the Deferred Action for Childhood Arrivals program, potential regulatory changes to current visa programs, the release of an updated Form I-9, and the pending automation of Form I-94.

Deferred Action for Childhood Arrivals

In June 2012, the Obama administration announced that it would allow certain young immigrants who are in the country illegally but came to the U.S. as children to be given a reprieve from deportation.

Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those who qualify to stay in the U.S. without fear of deportation for two years, subject to renewal, and to apply for employment authorization.

Thus far, more than 450,000 undocumented immigrants have applied to U.S. Citizenship and Immigration Services, or USCIS, under the program, and more than 245,000 applications have been approved.

While DACA is beneficial for eligible undocumented immigrants, it creates some thorny issues for employers. For example, to qualify for the program, applicants must show that they have been physically present in the U.S. Many employers worry that if an employee applying for DACA provides earnings statements or other employment documentation to establish his presence in the U.S., the employer will be exposed as having hired an unauthorized foreign worker, even if unwittingly.

Although DACA provides confidentiality protections, they are somewhat ambiguous and do not necessarily prohibit USCIS from sharing information with other government agencies. Thus, it is conceivable that an employer could face an I-9 audit by Immigration and Customs Enforcement when an employee submits such documentation.

Further, if an employer learns that one of its employees is applying for DACA, the employer will then have knowledge that the employee may not have current authorization to work in the U.S.

In such instances, unless the individual is able to provide documentation of current work authorization, the employer likely will be required to terminate the individual’s employment, at least until he has obtained employment authorization under DACA.   

In other cases an employer may become aware of an employee’s prior lack of employment authorization when the employee presents a new employment authorization document obtained through DACA.

In such instances, the employer generally may continue to employ the individual, as he will have obtained valid employment authorization. However, if the employer has an “honesty” policy providing that employees may be terminated for misrepresentations made during the application process, then the employer may need to consider whether to terminate this individual’s employment.

Of course, it is critical that such policies be applied consistently to avoid any potential discrimination claims. (For example, before taking any action, it is important to review past practices with respect to taking action against employees who were not honest during the application process.)

Possible expansion of visas for high-tech workers

Another potential change that could benefit employers involves proposed additional visas for certain highly skilled workers.

Although Congress failed to pass legislation introduced last year by Republican Sen. Lamar Smith that would have created new visa categories for foreign nationals earning graduate degrees in the sciences, technology, education or mathematics from American universities, this general concept still has momentum.

For example, a bipartisan Senate group (known as the “Gang of Eight”) working on a comprehensive immigration reform proposal is expected to include a provision that would make it easier for employers to hire highly skilled foreign workers by increasing the number of H-1B visas that could potentially be granted to employers.

An H-1B visa allows a foreign worker in a “specialty occupation” — generally, a professional job requiring at least a bachelor’s degree — to work in the U.S. for a petitioning employer.

Critics of the H-1B program contend that expanding it could perpetuate illegal practices such as “benching,” which occurs when an employer hires an employee on an H-1B visa but fails to provide work or to pay the employee the required amount.

A 2008 study by USCIS concluded that a significant number of H-1B petitions have involved such fraud. While USCIS has sought to crack down on benching and related practices, critics assert that the current system should be cleaned up before any expansion to the H-1B program is enacted.

Nonetheless, if a measure expanding the H-1B program passes, it may become easier for employers in high-tech fields to hire and retain foreign workers.

Proposed regulatory changes for certain non-immigrant visas

In addition, regulatory changes may be on the way that could ease an employer’s burden when petitioning for authorization to hire foreign workers on certain temporary work visas. The Department of Homeland Security has issued a proposed rule that would implement some potentially significant changes.

In particular, the proposed rule would allow foreign nationals on E-3 and H-1B1 visas to continue working for up to 240 days while a petition for an extension of their visa status, and the employment authorization that accompanies that status, are pending. (E-3 and H-1B1 visas are temporary visas, created by free-trade agreements, that allow certain professional workers from Australia, Singapore or Chile to work in the United States in specialty occupations.)

Currently, foreign nationals on H-1B visas are permitted to continue working for up to 240 days while a petition for an extension of their employment authorization and visa status are pending, so this proposed rule would align holders of E-3 and H-1B1 visas with holders of H-1B visas.

Additionally, the proposed rule would expand the range of evidence that may be submitted in support of researchers and professors who are applying for permanent residence under the “Outstanding Researcher” category.

While the proposed rule is still in its initial stages and pertains only to limited sections of the immigration regulations, it nonetheless may be a glimmer of larger changes that are to come if comprehensive immigration reform passes.

Related developments

Revised Form I-9: On March 8, USCIS released a revised version of the Employment Eligibility Verification Form I-9, which is used to verify individuals’ eligibility to work in the U.S. Employers must use the revised Form I-9 for all new hires and re-verifications occurring after May 6.

Through May 6, employers may continue to use the previously accepted versions of Form I-9 (which include those versions with revision dates of Feb. 2, 2009, and Aug. 7, 2009).

The changes to Form I-9 are relatively minor, including improved instructions, a revised layout, and new data fields for the employee’s email address, phone number and foreign passport information.

Nonetheless, employers that fail to use the proper version of the form could face penalties in the event of an audit by Immigration and Customs Enforcement, including fines ranging from $110 to $1,100 per incorrect Form I-9. Thus, employers should begin using the new form as soon as possible, and by no later than May 7.

Automation of Form I-94: Finally, on March 21, U.S. Customs and Border Protection, or CBP, announced its submission to the Federal Register of a rule to automate the Form I-94 Arrival/Departure Record.

Currently, Form I-94 is a paper form, given upon entry to the U.S., which provides foreign visitors with proof that they have been lawfully admitted to the country. Once the process has been automated, a paper Form I-94 will no longer be provided at entry.

Travelers wishing to obtain a hard copy of their Form I-94 will be directed to the CBP website (www.cbp.gov/I94) to print a copy of the form. The website link will go live 30 days after the rule has been published in the Federal Register. Automating the Form I-94 is expected to save an estimated $15.5 million a year.

Recommendations for employers

In light of these developments, there are a number of steps that employers who hire foreign nationals should take.

First, employers should promptly contact experienced counsel if they learn that an employee is not currently authorized to work in the U.S.

Second, employers should revisit their nondiscrimination and honesty policies to ensure that they are not treating foreign nationals with employment authorization differently than U.S. workers.

Third, employers should continue to use Form I-9 when hiring new employees, including both foreign nationals and U.S. workers. However, employers should begin using the new Form I-9 for all new hires and re-verifications by no later than May 7.

Finally, employers are advised to continue monitoring the news for further developments in immigration law.

William E. Hannum III is managing partner and Julie A. Galvin is immigration counsel at Schwartz Hannum in Andover, Mass. The firm represents management in labor and employment law matters, including litigation and business immigration, and educational institutions on education law matters.

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