In Part 1, I looked at the Employment Based trends to watch in 2013, including the H-1B Cap, EB-2 and EB-3 backlogs as well as the possibility of backlogs in EB-5. With the unemployment rate ticking slowly down and signs of life returning to the economy, pressure on employment based visas will sharpen.
In Part 2, I look at worksite enforcement, the new provisional waiver program and the possibility of immigration reform. With the presidential election behind us and the Obama administration settling in for another 4 years, there are some things we can count on: Strong worksite and interior enforcement; new programs and customer service improvements from USCIS as Alejandro Mayorkas, Director of USCIS continues in his post; and a loud debate in Washington over immigration reform.
E-Verify Movement Will Strengthen Nationwide and bring with it increased enforcement Actions on the Federal and State Levels:
On January 1, 2013 three more mandatory state level E-Verify measures took effect including North Carolina, Tennessee and Pennsylvania. The Pennsylvania’s Public Works Verification Act requires contractors and subcontractors on all public works projects to verify whether their workers are authorized to work in the US by using E-Verify. The Pennsylvania law applies to construction projects where the estimated cost is at least $25,000. See our upcoming blog post for more details on the PA law.
E-Verify already is required for either all or most employers in Arizona, Utah, Louisiana, Mississippi, Alabama, Georgia and South Carolina. A few other states have taken a similar stance as Pennsylvania and made its use mandatory only for public employers and/or contractors.
In 2013, it is possible that E-Verify could become mandatory nationwide, as a nationwide requirement will certainly be an important part of the immigration reform debate. However, even without a new nationwide requirement, employers can expect to see more E-Verify enforcement from the States as well as investigations of E-Verify related discrimination by the Department of Justice. In late 2012, we saw the first two such reported investigations and settlements.
E-Verify users should ensure that all personnel are well-trained on the system and on the documents presented during the I-9 and E-Verify process, especially when the system indicates that there is a tentative non-confirmation of employment eligibility. Care must be taken to follow all E-Verify requirements in the Memorandum of Understanding, so that employers do not run afoul of the immigration-related anti-discrimination provisions or the E-Verify requirements themselves.
I-9 Enforcement Actions will Continue Unabated in 2013: DHS Secretary Napolitano testified before Congress in July regarding the progress that the DHS has made on immigration policies in this country. During her testimony, she indicated that worksite enforcement efforts will remain a top priority for the DHS. With record fines being imposed against employers for I-9 violations in FY 2012, the remainder of FY 2013 will be no different, and could be worse based upon DHS budget projections and funding requested.
Employers should ensure that their I-9 process is sound and I-9 personnel training is up to date. Procedures for completing I-9s must ensure that proper documentation is reviewed by employers while at the same time ensuring that the civil rights of employees are not violated through inadvertent immigration-related discrimination such as document abuse, or citizenship status discrimination.
Provisional Waiver Program Becomes Effective March 4, 2013 Creating New Opportunities to legalize for the Undocumented: On January 2, 2012, USCIS announced that the I-601A Provisional Waiver process will go into effect on March 4, 2013. Under this new program, the undocumented relatives of US citizens, including their spouses, children under 21, and parents, will be able to apply for a provisional pre approval of their ultimate return to the United States before having to leave the country. This new process will add great certainty to the Immigrant Visa process for these individuals and should assist many in becoming legalized who had previously been too afraid to leave the US for fear they would not be able to return.
This program, along with the Deferred Action for Childhood Arrivals program enacted in June 2012 are the most progressive developments in immigration policy in years. I hope there are more surprises to come from USCIS in 2013.
Immigration Reform Discussions Will Stir up Congress and the Nation: The talk of immigration reform had begun even before all of the ballots were counted. With the decisive Democrat win and the number of Latino voters that had switched from supporting Republican to Democrat candidates in the last two presidential cycles, everyone from the White House to Congress has been talking immigration reform. An informal special commission of bi-partisan House and Senate members commonly known as the Gang of Eight, has begun discussions to find common ground between the two parties and the two houses of Congress.
What we can be sure of, is that there will be a debate on immigration reform in our near future and the issue will once again be front and center in political and economic circles. What we cannot be so sure about is what immigration reform might look like. Questions to be answered include whether E-Verify will become federally mandated; Will there be a path to citizenship for the undocumented or some lesser type of immigration status?; Will the Dream Act finally pass? Will it become easier for our Foreign graduate students to get green cards? Will the H-1B visa program be expanded?
All I can say folks is stay tuned and wear your seatbelts it could be a bumpy ride…..