The topic to repair our immigration system remains a political football with both the Republican and Democrat parties engaged in political gamesmanship. Since the new Congress will be controlled by the Republicans, there could be an attempt to repeal what the Administration has announced. On the other hand, the Republicans do not appear to have enough power to overturn a Presidential veto.
First, contractors need to better understand what the Administration is proposing. The President is not enacting new laws. Instead, he is allocating resources for enforcement of existing laws. That is well within his Constitutional powers. Since this will likely impact the labor force, here’s a summary of relevant proposals.
Expansion of DACA terms
DACA, or the Deferred Action for Childhood Arrivals, is an exercise of prosecutorial discretion by which the Administration has chosen not to deport persons who arrived in the U.S. as children of illegal alien parents. DACA relief will be expanded to three year increments instead of two year increments. In addition, the age limit for this relief will be removed. This will take about three months to implement, but should not dramatically affect the labor market since most of these people were already eligible for work permits.
DAPA relief for parents
DAPA, or Deferred Action for Parents of Americans (and lawful permanent residents), may protect over five million people from deportation. This is perhaps the most sweeping change that the Executive Action hopes to accomplish. Deferred deportation will protect illegal aliens if they have resided in the U.S. continuously since January 1, 2010, are parents of U.S. citizens or lawful permanent residents born before November 20, 2014, and are not an enforcement priority (a threat to national security or public safety). DAPA beneficiaries must register, pass a criminal background check, and pay taxes, but will be eligible for work permits that will presumably also be good for three years. Expect this provision to take about six months for implementation.
Modernize, improve, and clarify existing immigrant and non-immigrant programs
This is a catch-all provision that seeks to tweak the existing immigration system to promote economic expansion. By means of rules and interpretations yet to be issued, the Administration hopes to provide clarity on adjustment of status portability; clarify the standards for a national interest waiver of the labor certification requirement; grant a form of parole to foreign inventors, researchers, and entrepreneurs; finalize a rule to authorize work permits for spouses of H-1B workers; and expand the terms and conditions of the Optional Practical Training program that allows foreign students to work after completing a degree at a U.S. academic institution.
Impacts of DACA, DAPA and modernization
Other proposed executive action includes expansion of the rules allowing provisional waiver of unlawful presence violations, which will help keep families together, and tweaks to the naturalization process to make becoming a citizen a smoother process. Neither of these is expected to have much impact upon the concrete industry or labor market. The three measures outlined above, however, could impact contractors. Here’s how.
Modernizing the existing system could provide greater access to foreign professionals, e.g., accountants, IT specialists, engineers, etc., but it probably will not affect the overall labor picture for contractors. Similarly, expansion of the DACA program will allow more foreign students to attend colleges and universities in the U.S. but they will typically be driven to professional occupations also. Again, not much help for contractors. The DAPA program, however, could be a welcome boost to the concrete industry if roughly five million adult workers get legal permits to stay and work in the U.S.
Many contractors already employ DAPA eligible workers who have used false or misleading documents to pass I-9 or E-Verify scrutiny. Once they register for DAPA, you can expect some of them to come forward and confess that they were using false documents. The best advice in that situation is to examine their new document(s), make certain it is on the I-9 list, and complete a new I-9 form, writing across the top of it: “Employee produced new documents voluntarily.” Staple the new form to the old one and file it under the new name. You can also correct the Social Security records relating to this person by noting the new name and number (if any) on your next quarterly withholding report. If you are enrolled in E-Verify, run the new name and document(s) through that system and treat this person as a new hire.