December 8, 2016
Assessment of Employer Concerns Over the Next Few years
1. DACA is likely dead. Current work permits may be allowed to expire without being withdrawn, but new and renewal DACA filings can be swept away with the stroke of the President’s pen. This may mean some of your employees may lose their work permits and you will not be able to continue to hire them.
a.DACA (Deferred Action for Childhood Arrivals) allows certain undocumented immigrants to the U.S. who entered the country as minors to receive a renewable two-year period of deferred action from deportation and eligibility for work authorization.
b.DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) and expanded DACA programs will likely never be implemented.
2.Unauthorized workers will likely be targeted at the workplace via ICE raids. As employers may recall, prior to 2009 ICE conducted numerous raids on employers as opposed to audits. It is believed that more raids will be forthcoming. Employers should be prepared for these raids by ensuring that a point person exists who can manage the situation and call our office if and when a raid is in progress. The President can authorized this change of policy without Congress.
3.E-Verify will become mandatory for all employers. While mandatory E-Verify will have to be legislatively enacted, for employers who are already active users of the system it might be less likely that a raid will occur.
4.Deportation may increase. Even though an employer may employ an individual prior to its E-Verify use and who presented what appeared to be a valid work authorization document, this individual could still be arrested and deported if he/she is illegally in the U.S.
We believe that President-elect Trump and a Republican Congress will be more business friendly, even in the immigration context. However, persons here illegally and companies that knowingly hire illegals, especially if they have any crimes, will be targets for removal and fines.
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May 25, 2016
Electronic verification continues to grow in popularity, both in private electronic I-9 systems and the government’s E-Verify software system. My prediction is that within 5 years E-Verify will be required of all employers, and many of the private electronic I-9 systems are built to flow into E-Verify very smoothly. Employers have to understand that there is no true electronic I-9 allowed under current law; rather we have the recent government fillable I-9 form (often called a SMART I-9) which must still be printed out and signed in wet ink as well private I-9 systems which must be printable exactly like a paper I-9. If I-9s are to be retained electronically, the employer must follow the regulatory standards for electronic retention of I-9s.
Basically, 3 worlds now exist: E-Verify users, private electronic form users, and paper users. The new form creates a 4th group – fillable form users. Now we have 2 different government I-9 forms: the fillable form with drop down menus and the same old printed paper form. Instead of creating a standardized data entry form for employers we now have confusion. The new fillable form creates material changes to the verification laws and bypasses the APA requirements of rule- making. Smaller firms using paper I-9s have different instructions and lists of acceptable documents from larger firms which may choose to use the fillable I-9 form. For example, the fillable form has an incomplete employment authorization list in content and instructions, and the “additional information” field is confusing.
So what should an employer do? We do think E-Verify is going to be the law of the land so it is best to go ahead and use it now regardless of size. The benefits include minimizing the acceptance of fraudulent documents and showing evidence of an intent to develop a culture of compliance. The detriments include a smaller number of applicants, Big Brother having a watchful eye on how you administer E-Verify, data mining the documents you accept, and referring cases over to ICE and OSC for audit and investigation (e.g. a large number of List A documents are accepted which may spur an OSC audit for treating non-citizens differently).
However, which is worse: having to work harder to locate and verify legally authorized workers (by using E-Verify) or losing half your workforce from an ICE audit after paying a sizable fine (by not using E-Verify)? Yes, the employer is between a rock and a hard place, but with a plan and training sculpted as a good risk management policy, and with knowledgeable attorneys available to help when needed, employers can weather the storm and the confusion which is equally faced by all.
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