This week, Congress is poised to act on a broad appropriations measure to fund most federal government programs through the end of fiscal year 2015. Some Department of Homeland Security (DHS) measures, though, will only get funded to early 2015. As such, over the next few months, House and Senate Republicans will continue to grapple over what to do about President Obama’s recent immigration actions.
The actions in question surround a series of executive orders announced by the president Nov. 20 that will shield an estimated 5 million illegal immigrants from deportation proceedings. Around 4 million of these immigrants will qualify for deferred action under a new program, the Deferred Action for Parental Accountability (DAPA), which authorizes those who have been in the country for at least five years and whose children are citizens or legal permanent residents to stay and obtain a work permit valid for three years. The president’s action will also expand his version of a DREAMer program, the Deferred Action for Childhood Arrivals (DACA) program, by approximately 270,000 additional immigrants.
There are many important questions surrounding the president’s action. One question is whether the deferral of prosecution for a class of like-situated people—as opposed to individuals on a case-by-case basis—violates the immigration law. Another question is whether the president’s decision to provide for work authorization for this group of individuals goes beyond his executive authority and violates immigration law. Additionally, 17 states have filed federal lawsuits, alleging among other claims that the president’s action will injure state residents. Other practical questions remain as well, such as how the estimated 4 1/4 million illegal immigrants are going to get their DAPA and DACA paperwork processed by DHS in a timely manner when no outright funding exists through Congress for such processing. Yes, the president’s administration can internally reallocate resources among his agencies, but it can be difficult — agencies, by and large, are also supposed to submit a “reprogramming” request that must be approved by the heads of the funding committees, House and Senate Appropriations, when large amounts of money are to be redistributed. To date, none of this has happened.
So what does all this mean for employers? In short, it means uncertainty as to employers’ obligations and protections under the federal Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act (LAWA), both of which prohibit employers in Arizona from knowingly or intentionally hiring illegal immigrants.
First, the rules have not taken effect yet, and applications for deferred action and work authorization under the new rules are not currently being accepted by DHS. The implementation schedules are months away, there are many of them, and more processing delays could result from insufficient DHS funding, lack of processing expertise, and other unforeseen complications. As such, it will be well into 2015 before immigrants, who might qualify as work eligible under DAPA or the new DACA orders, will have their applications processed let alone receive deferred action and authorization to work.
Second, the president’s action is not permanent legislation. At best, it is temporary, and, at worst, temporary and, for many, confusing. Even if an immigrant is currently DAPA or DACA eligible, a new presidential administration could reverse or alter the rules in a way that disqualifies him or her from being authorized to stay and work, or that threatens the legality of his or her continued employment. Moreover, it is unclear whether, at the end of an immigrant’s three-year deferred action and work authorization, the immigrant’s employer has continued obligations to re-verify that immigrant’s status.
Last, even though it is unlikely that employers will face immigration prosecution for hiring or retaining DAPA- or DACA-eligible employees (at least during the three-year authorized work period in the president’s order), IRCA and LAWA remain current law and employers are right to want to be especially careful about assisting employees who are applying. This is especially true in the case of employees who do not, in the end, qualify for deferred action or work authorization. Concerns about potential new discrimination claims are also of concern for employers. For example, employees with status under DAPA or DACA who are fired for some reason unrelated to immigration may be tempted to bring a claim grounded in IRCA’s prohibition on discrimination based on citizenship status. In addition, employers who have “honesty policies” and who have fired any employees under those policies might face discrimination claims that such “honesty policies” have not been applied uniformly, particularly if an employee working pursuant to authorization under DAPA or DACA lied about his or her identity to get the job and was not fired when the lie was uncovered.
President Obama’s orders do not include a “safe harbor” from prosecution for employers who are in good faith trying to comply with this new immigration policy (most versions of the comprehensive immigration reform bills worked on in recent years did). Since these issues haven’t been worked through by the president’s administration, this leaves employers to serve as the front line and to be responsible for dealing with the practical realities attendant to implementation of the president’s action.
– Elizabeth Maier, former legislative director and immigration policy advisor to Sen. Jon Kyl, is now a policy director at Brownstein Hyatt Farber Schreck in Washington, D.C.