Immigration for Employers: The Latest Step (OPINION)

I enjoy the fact that my clients, friends, associates, and government officials take opportunities to help me understand exactly where they stand and why. This ongoing education has led me to see all sides of the immigration debate. There is only one side that I speak of publicly and often. The employer perspective is my driving force.

Whether everyone agrees on a law or directive in its final form, or the process by which it came to exist, the reality for an employer is grounded in the actual paperwork, policies and processes which erupt after a law’s passage, a directive is issued, or sometimes after the interpretation of the law by a court decision.

Although the recent executive order will continue to be hotly debated, it is actually a step two in a process. We already have experienced the implementation of DACA (Deferred Action for Childhood Arrivals). DACA allows for certain young people who are unauthorized immigrants to apply to remain here, and be granted temporary authorization to work.

The new directive called DAPA (Deferred Action for Parental Accountability) allows for certain previously unauthorized immigrants who are parents of U.S. citizens or lawful permanent residents to apply to remain here, and be granted temporary authorization to work. There are multiple steps associated with each of these, and currently neither offers the guarantee of U.S. citizenship.

There are several other moving parts to these programs. My focus here is work authorization.

Under the recent executive action, employers large and small will continue to process new hires as they have since 1986. The regulated process is designed to limit discrimination and determine a new employee’s identity and authorization to work in the U.S. This particular process has always applied exactly the same standards to U.S. citizens and immigrants alike for all employers.

A confusing situation may arise, however, when an existing employee comes to you with new work authorization granted as a result of this order. Part of this process may be the admission that he or she was previously unauthorized.

Now what do you do? What if they self-identify as unauthorized prior to receiving final work permission?

These work authorizations are not expected until later next year, and the interim period between the new directive’s introduction to the public and its implementation is a risky time. If your company doesn’t have a plan or policy in place to directly manage this process, please obtain assistance from human resource professionals and employment law attorneys who have experience in this particular area.

I would be remiss if I failed to point out in clear terms that the employment of unauthorized workers (possibly even unknowingly) could cost you your business. I’ve seen it firsthand.

However, if millions of employees or potential employees become more legally accountable, this will translate to safer, more compliant workplaces. There will be more accurate determination of benefits, payroll reporting and tax reporting.

I am fortunate to work with many employers who currently navigate this system with incredible success. I know that the more accurately we can determine an employee’s identity and authorization to work, the less likely the employer will face fines and legal liability. This final work authorization product will go a long way in ensuring employer compliance.

This is, simply put, the next chapter in what continues to be a very long story. Stay tuned.

Sheila Moss is certified as a senior professional in human resources and has been tagged as “The I-9 Lady” for years. She is the owner of Information Solutions Team of Lowell, a consulting group consisting of Form I-9 experts and other compliance specialists assisting nationwide clients. She can be reached at [email protected].