There is a good deal of uncertainty among employers regarding the status of immigration reform efforts in Washington, D.C. At the same time, there already are a variety of laws and regulations at the federal and state levels that are implicated when employers engage in everyday activities such as verifying eligibility for employment. Moreover, very active federal agencies are charged with monitoring employer compliance and—in some cases—identifying evidence of noncompliance during audits or investigations related to the laws and regulations that already exist. Combined with the fact that many employment practices liability (EPL) policies may provide little or no coverage on immigration-related matters, this sensitive area can be a particularly risky one.
The immigration reform issue came to the forefront in late November 2014 when President Obama gave a speech regarding an executive action plan to fix the country’s “broken immigration system.” A good deal of confusion arose from there, however, regarding what was done and who, if anyone, was affected. The answers may be surprising.
While the president gave a speech and laid out a plan at that time, to date there has not been an executive order implementing it. There is no such order on the White House website. There is no such order recorded in the Federal Register, where such things are documented. This could be contrary to what many have heard or interpreted from reports on the subject.
Instead, the speech served as a directive for various agencies to set a course to try and implement a plan. As a result, there are a lot of details to be fleshed out. For many employers, the most important part of President Obama’s action plan is that it envisions expressly permitting almost five million presently illegal or undocumented immigrants to stay and work in the U.S. for up to three years if they meet certain requirements:
- They must have been in the U.S. for at least five years.
- They have to come forward and register.
- They have to submit biometric data (e.g., fingerprints).
- They have to pass a criminal background check.
- They have to pay an application fee and taxes.
- They must have a child who is a U.S. citizen (anyone born in the U.S.) or a lawful permanent resident who was born on or before Nov. 19, 2014.
However, even as envisioned, this portion of the action plan was not to be implemented for 180 days. That ends up being around May 19, 2015, and that’s just a target.
Additionally, the legal and political challenges already are underway, with more to come. Although nobody can predict the likely outcomes of such challenges, most would agree that they certainly are not going to speed things up. For example, a Texas federal court recently issued a temporary injunction against implementation of some of the action plan.
Another issue, too, is that, even if the action plan becomes effective, it still requires undocumented workers to take affirmative steps to obtain permission to work. Namely, the undocumented workers will have to come forward and make application. There is no way of knowing how many of these workers will decide to do that. Also, as planned, this all would be happening during a presidential election cycle, and there is the possibility that the next president could undo whatever has been done to that point.
Even as envisioned, the permission to work will be granted for only three years at a time, and it will not confer on a person legal immigration status. It simply gives them the temporary right to stay and work despite their status. What happens, then, to the people who take advantage of the program when their time runs out? And how must employers respond?
In light of these uncertainties, along with the lack of a guarantee that an application actually will be granted in a timely fashion, many undocumented workers may decide to stay in the shadows rather than out themselves, preferring to take their chances under the current system of relatively lax enforcement.
For employers and those in human resources who are concerned about how to administer the new requirements, the most accurate advice at this time may be to relax. These things probably are not going to happen for a while, if they do at all.
Furthermore, a stated goal of the current administration is to make it easy for these workers to get jobs, and part of that presumably would include removing barriers to them being hired. Along those lines, employers may expect to see the following if the plan is implemented:
- Newly documented workers under the action plan probably will be issued some kind of new identification, similar to a green card.
- Employers likely will have to locate and download a new I-9 form, complete with instructions.
- Employers likely will need to have a tracking system in place so that they know when the newly documented worker’s three-year work permit is up.
- Employers that encounter people who have been working for them under false identities and then come forward likely will be told that they cannot retaliate against the newly documented worker, despite the prior representations made to the employer.
- Employers will need to be careful not to run afoul of other anti-discrimination laws.
Of course, there are other immigration-related proposals out there that may supplement, amend, or totally replace President Obama’s current action plan. Or it is possible that Congress will pass a bill it views as better and that such a bill would be signed into law. The odds on that are not great, however. Nonetheless, employers should work with in-house or outside counsel to be careful to comply with existing laws and regulations. For those in highly monitored industries and states that are particularly concerned with these issues, it may be wise to monitor continually not only the developments, but also their risk management and EPL insurance-related strategies.