Immigration Update: Deferred Action and H-2B Visas

June 20, 2012

Immigration reform has been the center of public debate in recent weeks with the White House announcing a new imigration policy, “deferred action,” wherein they likely will not pursue deportation for certain illegal immigrants. Additionally, a Senate Appropriations Subcommittee approved an amendment that would ease the H-2B visa process.

Deferred Action

The White House and the Department of Homeland Security (DHS) have announced a new immigration policy called “deferred action.”  Under this directive, individuals who demonstrate that they meet the indicated criteria will be eligible for an exercise of prosecutorial discretion, called deferred action, on a case by case basis.  To be eligible, a person must apply and:

  • Have come to the U.S. under the age of sixteen;
  • Have continuously resided in the U.S. for a least five years preceding June 15 and have been present in the U.S. on June 15;
  • Be currently in school, have graduated from high school, have obtained a general education development certificate, or have been honorably discharged from the Coast Guard or Armed Forces of the U.S.;
  • Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
  • Not be above the age of thirty.

The policy does not confer a path to citizenship or lawful permanent resident status. Persons who meet these criteria are sometimes called “dreamers” by proponents of the policy because the proposed DREAM Act would provide lawful status to many of the same people. According to DHS, individuals who receive deferred action may apply for and may obtain employment authorization from U.S. Citizenship and Immigration Service provided they can demonstrate an economic necessity for their employment under existing regulations. There are no additional details.

Presumably, DHS is referring to the ability to apply for an “Employment Authorization and Advance Parole Card for Adjustment of Status Applicants,” using Form I-485, which serves as an I-512 Advance Parole and an Employment Authorization Document (EAD).  This costs $1,070 and the person applying must have a basis for becoming a permanent resident.  The proposed policy does not appear to change what constitutes a basis for becoming a permanent resident or otherwise obtaining a work permit.  Thus, it is not clear that the new policy accomplishes anything for undocumented immigrants other than ensuring that they will not be deported for two years (upon application in a form to be determined within 60 days and at a cost to be determined).  If the new policy does not, as has been asserted by DHS, provide a “path to permanent residency,” then the EAD is not available under current law.

From an employer’s perspective there are many unanswered questions.  They include:

  1. Can those receiving deferred action be hired and, if so, what documents constitute proof they are authorized to work?
  2. What changes will be made to the I-9 employment verification process?
  3. What does an employer do when a person who has received deferred action fails the E-verify verification process?
  4. How long does a deferred action employment authorization last and what must an employer do when it expires?  When are employers subject to civil or criminal penalties for retaining–or failing to retain–someone whose deferred action has expired?
  5. Is “economic necessity” based upon the prospective employee’s perspective, that of the “family” of the prospective employee, or that of the prospective employer?
  6. When are employers subject to civil or criminal penalties for hiring someone who is eligible for or has received deferred action?
  7. When are employers subject to civil or criminal penalties for failing to hire someone who is eligible for or has received deferred action?  Can an employer take into account the “temporary” nature of the work authorization when deciding among candidates?

To read the President’s remarks, click here.

To read Secretary of Homeland Security Janet Napolitano’s remarks and DHS’s Frequently Asked Questions, click here.


H2-B Visas

Last week, Sen. Richard Shelby (R-Ala.), Ranking Member of the Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies (Labor/HHS), offered an amendment that would ease the H-2B Visa process. The amendment, offered during full committee consideration of the FY 2013 Labor/HHS appropriations bill would prohibit funding for implementation of a rule that would substantially increase the prevailing wage for employees hired under the H2-B visa program.

Shelby’s amendment passed by a vote of 19-11.