Employers are eager for details about President Joe Biden’s proposal for immigration reform, and they’re hoping for a plan that will replace uncertainty with stability, according to attorneys who advise employers on immigration matters.
The plan calls for a multiyear path to citizenship for certain undocumented immigrants who were already in the United States at the beginning of the year, according to news reports. It would provide those undocumented individuals with temporary status for 5 years and then allow them to apply for green cards—permanent resident status. They then would be allowed to apply for citizenship 3 years later.
The path to citizenship would be shorter for recipients of the Deferred Action for Childhood Arrivals (DACA) program, who would be able to apply for green cards immediately. DACA is the program that allows eligible young people who came to the United States as children to receive a renewable period of deferred action from deportation. DACA recipients are authorized to work or attend school.
‘Biggest Problem . . . Has Been Predictability’
What might the Biden plan mean for employers? Attorneys who work on immigration related to employment hope a bill will eventually pass that will bring predictability and stability to the system.
“The biggest problem facing employers for the last four years has been predictability,” Todd P. Photopulos, an attorney with Butler Snow LLP in Memphis, Tennessee, says. “The last four years have been the most chaotic in my 22 years of advising employers on U.S. business immigration policy.”
Photopulos says policy changes that didn’t amount to actual legislation, but instead altered the way the system was handled, created problems. “These minor tweaks in policy were often unannounced, making it impossible for businesses to plan their business operations,” he says. Those tweaks meant employers were faced with losing employees, “many of whom had worked lawfully and been trained over many years.”
“Unpredictability and uncertainty are inconsistent with successful business planning,” Photopulos says. “Businesses and the lawyers that help guide them will welcome what we all hope will be a return to a more predictable period of U.S. immigration policy.”
The DACA program is one example of problems caused by unpredictability, Photopulos says, adding that unpredictability for the program’s long-term viability has created challenges for employers trying to develop and manage their workforce.
“It is incredibly hard to develop and manage a workforce when a business is uncertain whether employees will be allowed to remain in the country and continue working,” Photopulos says.
Access, Reliability Needed
Robert H. Cohen, an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio, also says employers are looking for immigration policies that provide stability and reliability as well as access to talent.
Regardless of whether employers are looking for high-skill employees or workers to fill low-skill jobs, they welcome policies that provide access and stability, Cohen says. Compliance has been difficult because “it’s a question of being able to apply intuitive rules,” he says. Employers need to know when they hire immigrants that they are authorized to work, and that authorization won’t be lost.
Recent years have seen the Trump administration imposing rules that courts ended up reversing, creating “a ping pong of court decisions” that led to anxiety and uncertainty, Cohen says.
Cohen works with employers seeking the kind of highly skilled employees that are allowed into the country on H-1B visas. A few weeks ago, the Trump administration published a regulation scheduled to take effect in March that changed how H-1B visas are granted. The rule created a selection system that is a “direct contradiction to the statute,” Cohen says, meaning it is likely to be enjoined, but it has created chaos nonetheless.
Biden Proposal Faces Opposition
Leigh Cole, an attorney with Dinse P.C. in Burlington, Vermont, says the Biden proposal “faces opposition from a strong minority in the divided Congress . . . so at this point it’s impossible to gauge the likelihood of passage” in its current form or with significant changes.
Cole says comprehensive immigration reform would be useful for employers to address deficiencies in the current system. Those deficiencies include lengthy processing times, backlogs for green cards, and employment-based visa categories that don’t match the needs of U.S. employers.
Elaine C. Young, an attorney with Kirton McConkie in Salt Lake City, Utah, says a path to green cards and citizenship for DACA recipients “would mean greater certainty for employers who currently employ these folks and want to continue to employ them without worrying that their employment authorization will periodically lapse or could be taken away, as has been the case the last few years.”
For other undocumented immigrants, the ability to get green cards “would be a sea change for employers, because there would be a larger available workforce for employers using E-Verify, holding government contracts, and otherwise seeking to comply with immigration laws,” Young says. E-Verify is the government’s system that allows enrolled employers to confirm the eligibility of their employees to work in the United States.
“On the other hand, these workers will now be able to lawfully work in any job for any employer, which means their interest in working in different industries or as self-employed workers will likely change,” Young says.
Young says she is interested in seeing what Biden’s immigration plan may mean for various employment-based immigration categories, including the H-1B visas. “Most employers who regularly hire noncitizen workers want some degree of predictability so they can plan their workforce and hire the best candidates, and this predictability has been lacking the last few years,” she says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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