Last week, the White House announced a new administrative policy deferring deportation of certain undocumented immigrants who had been brought to the United States before reaching adulthood. The announcement also indicated that these individuals could become lawfully employed. This has implications for small business, since many small businesses are hiring and would like to take advantage of potential new sources of legal workers. There are, however, a number of questions yet to be answered. One of the best brief explanations of the issue has been prepared by David Burton, the General Counsel of the National Small Business Association.  NSBA is the nation’s oldest small business advocacy association, and maintains a rigorous non-partisan position. We thank David and NSBA for permission to share this article.

Deferred Action
The White House and the Department of Homeland Security (DHS) have announced a new immigration policy called “deferred action.” Under this directive, individuals who demonstrate that they meet the indicated criteria will be eligible for an exercise of prosecutorial discretion, called deferred action, on a case by case basis. To be eligible, a person must apply and must:
1. Have come to the United States under the age of sixteen;
2. Have continuously resided in the United States for a least five years preceding June 15, 2012 and have been present in the United States on June 15, 2012;
3. Be currently in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
5. Not be above the age of thirty.
The policy does not confer a path to citizenship or lawful permanent resident status.
Persons who meet these criteria are sometimes called “dreamers” by proponents of the policy because the proposed DREAM Act would provide lawful status to many of the same people.
According to DHS, individuals who receive deferred action may apply for and may obtain employment authorization from U.S. Citizenship and Immigration Services (USCIS) provided they can demonstrate an economic necessity for their employment under existing regulations. There are no additional details.
Presumably, DHS is referring to the ability to apply for an “Employment Authorization and Advance Parole Card for Adjustment of Status Applicants,” using Form I-485, which serves as an I-512 Advance Parole and an Employment Authorization Document (EAD).  This costs $1,070 and the person applying must have a basis for becoming a permanent resident.  The proposed policy does not appear to change what constitutes a basis for becoming a permanent resident or otherwise obtaining a work permit.  Thus, it is not clear that the new policy accomplishes anything for undocumented immigrants other than ensuring that they will not be deported for two years (upon application in a form to be determined within 60 days and at a cost to be determined).  If the new policy does not, as has been asserted by DHS, provide a “path to permanent residency,” then the EAD is not available under current law for persons who have entered the country illegally.

From an employer’s perspective there are many unanswered questions. They include:

1. Can those receiving deferred action be hired and, if so, what documents constitute proof that they are authorized to work?

2. What changes will be made to the I-9 employment verification process?

3. What does an employer do when a person who has received deferred action fails (as is likely) the E-verify verification process?

4. How long does a deferred action employment authorization last?  What must an employer do when it expires?  When are employers subject to civil or criminal penalties for retaining–or failing to retain–someone whose deferred action has expired?        

5. Is “economic necessity” based upon the prospective employee’s perspective, that of the “family” of the prospective employee, or that of the prospective employer?

6. When are employers subject to civil or criminal penalties for hiring someone who is eligible for or has received deferred action?

7. When are employers subject to civil or criminal penalties for failing to hire someone who is eligible for or has received deferred action?

8. Can an employer take into account the “temporary” nature of the work authorization when deciding among candidates?

To read the President’s remarks, click here.
To read Secretary of Homeland Security Janet Napolitano’s remarks and DHS’s Frequently Asked Questions, click here.
H2-B Visas
On January 19, 2011 the Department of Labor, Employment and Training Administration, issued a final rule regarding Wage Methodology for the Temporary Non-agricultural Employment H–2B Program. This rule would substantially increase the prevailing wage for purposes of the H-2B hiring process. To read this rule, click here.
Subsequently, Congress withheld funding for the implementation of this rule. Senator Richard Shelby (R-Ala.), Ranking Member of the Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies (Labor/HHS), during full committee consideration of the FY 2013 Labor/HHS appropriations bill, offered an amendment to again prohibit funding for implementation of this rule. The amendment passed by a vote of 19-11. To read about this development, click here.