How Does the Executive Immigration Action Announced by President Obama Affect Employers?
On the evening of November 20th, President Obama announced that the Deferred Action program, initially offered only to young people who were brought to the United States as children, will be expanded significantly to undocumented individuals who:
- Have been physically present in the US for five years;
- Have a US Citizen or Permanent Resident child;
- Do not have a serious criminal conviction;
- Agree to pay taxes; and register for the program.
These individuals will not be granted Green Cards or a pathway to citizenship, but will be not be subjected to deportation and will be granted employment authorization on a temporary basis. According the USCIS, this program may benefit nearly 5 million individuals and will be effective approximately 180 days after the announcement, or in May of 2015.
At first glance, this relief seems to only benefit individuals and families; however, it should also benefit employers in certain industries that traditionally have large numbers of undocumented workers. Examples of industries that may be effected are among others: agriculture; construction, manufacturing, and hospitality. Even when employers complete an I-9 properly for employees, some fear that a raid or audit by Immigration and Customs enforcement may reveal that a certain percentage of their vital workforce is actually undocumented. In many cases would-be employees, desperate for the opportunity to feed their families, engage in identity theft and obtain real but stolen documents that allow them to obtain jobs in spite of their undocumented status. Businesses like this fear that an immigration enforcement action may eliminate their workforce and potentially shut down their business.
The executive action announced by President Obama will allow up to 5 million formerly undocumented individuals to come out of the shadows and become employment authorized without the fear of deportation. While this is good news for the individuals, it will present a dilemma for the employers when current employees come forward, admitting that they had previously engaged in identity theft at the time of hiring, but have now become employment authorized. Employers should consult with immigration and employment law counsel to set up policies for situations like this so that they can be handled in a consistent and lawful manner.