I hope everyone is staying warm!

Please enjoy Friday’s edition of my Compliance News Flash with blurbs about:

  • California’s new immigration law which applies to employers
  • EU-U.S. Privacy Shield
  • Changes to background investigations by the National Background Investigations Bureau and Department of Defense
  • An update to New Jersey’s Ban the Box law
  • The return of Congress

Click here to read the Compliance News Flash.

Additional Executive Orders (“EO”) are apparently circulating among administration officials, including more related to immigration and one specifically related to business immigration. It is unclear when or exactly what President Trump will sign but one such draft order is entitled “Executive Order—Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The scope of this EO, as presently drafted, will affect foreign worker visa programs (e.g., workers in E, H-1B, H-2A and L status).  It also affects the J-1 exchange visitor program and student visa reform, and orders L-1 site visits.  These are just some highlights of what such this EO could cover.

The focus of this particular EO is to prioritize “the protection of American workers…and the jobs they hold.” The EO requires the Security of Homeland Security to, within 90 days, review all regulations that allow foreign nationals to work in the United States to determine if they are in the national interest or should be rescinded.

Of greatest interest for purposes of this blog is what it says about E-Verify – “within 90 days of the date of this order, submit to the President a list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify.” Could this mean something akin to the situation where in order for an employee to apply for an extension of their work authorization under STEM OPT their employer must participate in E-Verify?

This E-Verify mandate is in line with then presidential candidate Trump’s “10 Point Plan to Put America First.”  Point #9 was, “Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.”  For this point to be fulfilled, President Trump is pushing for an expansion of the E-Verify program.  Which, by the way, an expansion of E-Verify to make it mandatory is not necessarily a controversial item on Capitol Hill.  I expect that legislation will be taken up this year on Capitol Hill making E-Verify mandatory for all employers in the United States.

As the President’s executive action on immigration rolls out, employers are wondering when they will start to see work permits issued to those covered by the President’s actions.  The short answer is: earliest would be springtime and more likely summer.  Two elements of the executive action on immigration are, an expansion of the Deferred Action for Childhood Arrivals (DACA) program and creation of a new program for undocumented immigrants in which they will also receive a work permit.  The latter being Deferred Action for Parental Accountability (DAPA), which is for those individuals living in the United States, without legal immigration status, who have been here at least five years and have a U.S. citizen or lawful permanent resident child.  There are more requirements than that, but that’s the gist of DAPA.

Individuals who qualify for DACA and DAPA will be issued a work permit, valid for three years. Which means, potentially, up to 5 million individuals who will now be able to lawfully work in the United States.  For more on the President’s executive action on immigration click here.  For individuals wanting to know more about this administrative relief and legal assistance, check this website out.

But wait!  Up on Capitol Hill they don’t like what the President is doing because any changes to immigration laws fall in their bailiwick.  Never mind they have had years to address immigration reform but can’t pass a comprehensive measure.  Notwithstanding, you need to pay attention to what is happening in Congress and the impact it could have on the President’s executive action on immigration.

This week the House of Representative’s voted 236-191 to pass H.R. 240, the Department of Homeland Security (DHS) appropriations bill.  Note that this is a must pass bill as funding for DHS expires February 27th.

The House made in order five amendments that defund the President’s executive actions on immigration.  The House passed (237-190) the Aderholt/Mulvaney/Barletta amendment, which would prevent any funds appropriated by H.R. 240 from being “used to implement, administer, enforce, or carry out (including through the issuance of any regulations) any of the policy changes set forth in” memoranda underlying and detailing the President’s executive action on immigration, or any future “substantially similar policy changes.”  The House also passed (218-209) the Blackburn amendment to prohibit funding from H.R. 240 for granting deportation relief to new, renewing, or previously denied applicants under DACA.  Democrats offered a motion, which was defeated, to send H.R. 240 back to committee to remove the immigration-related provisions and to add $300 million for fusion centers that coordinate local, state, and federal threat information.  Sen. John Thune (R-SD), leader of the Senate Republican Caucus, called the bill “the beginning of the process” for the Senate.  Some suggest that the Senate will not consider the bill much until February, focusing instead on the Keystone XL pipeline for much of the rest of January.  Thune added that the Senate amendment process will be “an effort to try and find six Dems to get to 60 [votes] on something that we could send back to the House that they would be able to take up and pass.”  Democrats want a “clean” bill that would avoid a lapse in DHS appropriations without immigration-related amendments.  CQ reports that Speaker Boehner (R-OH) has not ruled out such a possibility, saying his primary interest is to fund DHS and his secondary interest is in preventing the president’s “executive overreach.”  House Judiciary Committee Chairman Robert Goodlatte (R-VA) announced his agenda today, saying his primary interest on immigration is to prevent the president from implementing his executive action on immigration.

Tonight President Obama will address the nation at 8 pm EST on his executive authority on immigration.  The major networks (NBC, ABC, and CBS) are not planning to air the President’s speech this evening.  CNBC reports, “Obama’s speech comes during sweeps week, where networks need to highlight their most popular programming.”

The President is expected to lay out the action he believes he has the authority to take with regard to individuals unlawfully present in the United States as well as to address issues around high skilled workers, border security and possibly other areas.  The President will likely talk about his “prosecutorial discretion” allowing him to defer the deportation of up to 5 million undocumented individuals.  To be clear, this is not a substitute for comprehensive immigration reform, and the President has made that clear.

Yesterday the President spoke from the Oval office about tonight’s announcement.  Listen here.

Tune in for more on this after the President’s announcement tonight.

It’s finally here.  The Gang of 8 introduced a comphrehensive immigration reform bill this week, the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744).  Here are some key items to note:

  • The bill is controversial and for the most part, everyone seems to be complaining about it. 
  • The Senate Judiciary Committee will hold hearings on the bill tomorrow and Monday.
  • The Senate Judiciary Committee expects to hold a mark-up of the legislation in May, and assuming it is voted out of Committee favorably, it could see floor action in June.
  • The House of Representatives may/may not introduce its own measure as they are certainly work on their own measure.
  • The bill covers the following major areas: Border Security, Legalization, Interior Enforcement, Reforms to Non immigrant Temporary Visa Programs).

As an employer I would be reading many sections but one I will highlight here includes the interior enforcement provisions and the section entitled “Employment Verification System”.  I”m looking at the fact that the legislation mandates use of E-Verify by employers over a period of time.  Good news is that it pre-empts state or local laws, ordinances, policies or rules relating to the “hiring, continued employment, or status verification for employment eligibility” of undocumented individuals.  However, it does allow a state or locality to continue to exercise its authority over business licensing and similar laws as a penalty for failure to use E-Verify.  Which means that if this bill becomes law, your business license will be tied to your use of E-Verify.

Use of E-Verify, or the Employment Verification System as the bill calls it, will be rolled out as follows:

  • Employers in critical infrastructure — one year after publishing of the regulations to implement the relevant section in the law, the government will be able to mandate use by such employers;
  • Employers with 5,000+ employees must participate two years after the publishing of regulations;
  • Employers with 500+ employees must participate three years after the publishing of regulations; and,
  • All other employers must participate within four years after the publishing of regulations.

In a twist, the E-Verify mandate covers use by employers of the system for new hires as well as current employees with temporary work authorization which expires.  The latter would be a new requirement as presently E-Verify is only for new hires and in limited circumstances, such as for federal contractors only, it applies to existing employees.

This is a massive bill — 844 pages to be exact — and therefore stay tuned as I review other sections and share those with you.  For now remain calm and carry on.

Representative Steve Cohen, a Democrat from Tennessee, has introduced H.R. 645 in the House of Representatives.  The legislation would amend the Fair Credit Reporting Act (FCRA) to prohibit employers from using credit reports in the hiring process as well as prohibit the use of credit reports for the purpose of making adverse employment decisions.  The only exceptions to this would be for jobs which require a security clearance, are with state or local government, or for certain individuals working in the financial industry (i.e., supervisory, managerial, professional, or executive positions).  The legislation is short sighted and employers should be concerned about it as checking a prospective employee’s credit history as part of a background check is relevant to determine the possibility of risk to the financial health of a business or its customers.  Rep. Cohen has introduced this legislation in multiple Congresses and the legislation continues to miss the mark as generally employers only use credit reports in situations where they feel that someone’s credit history is relevant to the position in question. If this legislation passes, it means employers would not be able to consider one’s credit history as part of a background check by a background screening company for lawyers, cashiers, pharmacists, NBA referees, executives in non-financial institutions, jewelers, academic financial aid offices, Human Resources employees, procurement employees and so on. 

Check out the bill and see if your representative is a co-sponsor of the bill as so far the legislation has 29 co-sponsors.  The bill, the Equal Employment for All Act is pending in the House Financial Services Committee.  You can contact your member of Congress to share your concerns about the legislation by calling the Capitol Hill switchboard at 202-224-3121 and asking to be directed to your members office.

Admittedly, this is a bit wonky, but for those you tracking this sort of thing I have news to report.  The E-Verify program, which was due to expire (gasp!) at the end of this month, has been extended.  Congress got its act together and passed a three year extension (or re-authorization) of the E-Verify program.  This means employers using the E-Verify program will be able to continue using the program until September 30, 2015

Initially the legislative language would have permanently reauthorized the E-Verify program.    However, with no agreement, Congress settled for three years.  The Senate approved the bill in early August and the House approved it this month.  Now off to the President for signature.   If you would like to read the text of the legislation, the bill number is S. 3245.  The official title of the bill is, “A bill to extend by 3 years the authorization of the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program.”  In addition to extending the life of the E-Verify program, the legislation extends other programs like the Conrad 30 program for foreign physicians in medically underserved areas.

As you may have heard by now, the Obama Administration decided to act on the issue of children brought to the United States who have gone on to have otherwise productive lives only to realize as they got older that they are unlawfully present in the United States.  The U.S. Congress wasn’t acting on the DREAM Act, so the Administration did.  The Administration announced that it would grant Deferred Action status to those brought to the United States prior to the age of 16, who are presently no older than 30, and currently in school, have graduated or obtained a GED, or are an honorably discharged veteran of the Coast Guard or Armed Forces.  Upon approval, these young people will receive a reprieve from deportation for two years and be eligible for work authorization.  That’s the gist of the program. 

Why does this matter to you as an employer?  Namely, if such an individual comes to you and says they need a letter to prove they have continuously resided in the United States since 2007 to present, this simple request opens up a can of worms.  Now you potentially know that the individual is not authorized to work and until they receive a work permit through the program, the general rule would be that they must be terminated.  Also, some are wondering out loud whether an employer who decides to write a letter on behalf of a Deferred Action applicant will expose themselves to an investigation by Immigration and Customs Enforcement (ICE) regarding their form I-9 practices and compliance.  Bottom line — if you receive an inquiry from an employee, or employees, regarding a letter of support for their application, speak with an immigration attorney knowledgeable with form I-9 issues before doing so. 

Additionally, for those eligible for Deferred Action, some states are being a bit mean-spirited and saying that even though the federal government is going to temporarily legalize their status, they are not going to issue them state benefits such as driver’s licenses or identification documents.  To date, those states are:

  • On August 15th, Arizona Governor Jan Brewer issued an Executive Order (2012-06) entitled, “Re-Affirming Intent of Arizona Law in Response to the Federal Government’s Deferred Action Program.”  Essentially Governor Brewer is stating that Arizona will not issue public benefits to those who receive work authorization and a work permit under the Deferred Action program, such as a driver’s license or identification card.   
  • On August 16th, Texas Governor Rick Perry sent a letter to Texas Attorney General Greg Abbott and Texas state agencies, “to ensure that all Texas agencies understand that Secretary Napolitano’s guidelines confer absolutely no legal status whatsoever to any alien who qualifies for the federal ‘deferred action’ designation.”  Perry concluded, “these guidelines do not change our obligations under federal and Texas law to determine a person’s eligibility for state and local public benefit. Federal law prohibits conferring such benefits to most unlawfully present aliens, absent a state law to the contrary.”
  • On August 17th, Nebraska Governor Dave Heineman announced that “President Obama’s deferred action program to issue employment authorization documents to illegal immigrants does not make them legal citizens.” Heineman concluded, “Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.”

Department of Homeland Security (DHS) Secretary Janet Napolitano testified recently before the House Judiciary Committee regarding DHS’ efforts with respect to the enforcement and administration of our nation’s immigration laws.  Secretary Napolitano testified about criminal aliens, prosecutorial discretion, detention reform, enforcement along the borders, comprehensive immigration reform and of course, worksite enforcement, which in her written testimony has the header — “Deterring Employment of Aliens Not Authorized to Work”.

Highlights of Secretary Napolitano’s testimony regarding worksite enforcement:

  • DHS has eliminated high-profile raids of employers regarding their compliance with forms I-9.
  • DHS is instead promoting compliance with worksite-related laws through criminal prosecutions of egregious employer violators, form I-9 inspections, civil fines, and debarment, as well as education and compliance tools.
  • Since January 2009, Immigration and Customs Enforcement (ICE) has audited more than 8,079 employers suspected of knowingly hiring workers unauthorized to work in the United States, debarred 726 companies and individuals, and imposed more than $87.9 million in financial sanctions.
  • Employer enrollment in E-Verify, the electronic employment eligibility verification program managed by U.S. Citizenship and Immigration Services (USCIS), has more than doubled since January 2009, with more than 385,000 participating companies representing more than 1.1 million hiring sites.
  • More than 17 million queries were processed in E-Verify in Fiscal Year 2011, allowing businesses to verify the eligibility of their employees to work in the United States.

Assuming the Administration backs up its words with action, a much needed remedy will soon be available for certain individuals brought to the United States as children and who, for all intents and purposes, know no other country as home other than the United States.  In addition, these now young adults will be provided work permits and be able to not only remain in the United States lawfully but present such document to employer’s for employment purposes.   This is a start but it’s not a perfect solution as these individuals are only granted a two-year reprieve and no certainty that they will be able to remain permanently.

For those of you who monitor the “goings on” of Capitol Hill, this is basically the Administration administratively implementing the DREAM Act…sort of.  Democrats love the move, Republicans hate it. Maybe if they stopped politicizing everything on Capitol Hill and just got on with the business of passing legislation they wouldn’t be in the position they are now.  But I digress.  If you want to read the text of the legislation of the latest version of the DREAM Act (H.R. 1842 and S. 952) do note that the Democratic sponsored versions have been the front runners in this regard, with Senator Mario Rubio of Florida recently offering a competing version, although he has yet to officially introduce a bill in the U.S. Congress.

The policy, announed today, in a Memorandum from Secretary Janet Napolitano will do the following:

  • Exclude qualifying undocumented immigrants under the age of 30 from removal proceedings or deportation if they do not pose a national security risk.
  • The “deferred action” policy affects individuals who were brought to the United States under the age of 16 and have no legal status here if they: (1) have resided in the United States for at least five years and are still present; (2) have not committed a felony or serious crime; and, (3) are currently students, high school graduates or honorably discharged veterans of the Armed Forces or Coast Guard.

This policy is a VERY big deal!  It’s also the right thing to do.  One word of caution, if you think you may qualify under this policy, or you know someone who you think may qualify, please seek counsel only from a reputable immigration attorney.  Do not pay crazy amounts of money to “notarios” with only a promise of a work permit. For information on how to avoid being scammed click here for information from U.S. Citizenship and Immigration Services and also the American Immigration Lawyers Association’s website.