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July 19 — It's not just undocumented immigrants feeling the impact of the U.S. Supreme Court's deadlock on President Barack Obama's immigration programs; employers are also disappointed.
On June 23, the court tied 4-4 in a lawsuit by 26 states challenging the president's authority to implement the deferred action for parents of Americans and lawful permanent residents (DAPA) program and expanded deferred action for childhood arrivals (DACA) program.
Both programs would have granted deportation protection and work permits to certain groups of undocumented immigrants, to the tune of some 4 million to 5 million people.
The lack of a majority decision means an injunction blocking the two programs—handed down by a federal judge in Texas and affirmed by the U.S. Court of Appeals for the Fifth Circuit—remains in place. Although the underlying litigation is ongoing, it's not likely to conclude before Obama leaves office.
That means DAPA and expanded DACA effectively are dead, although the administration is trying to get the Supreme Court to rehear the case once a ninth justice is confirmed.
The impact of the decision really “depends upon the employer,” Randy Capps, director of research for U.S. programs at the Migration Policy Institute, told Bloomberg BNA July 8. “It's a mixed bag.”
There's a “relatively small group” of employers of high-skilled workers that likely are disappointed by the Supreme Court decision, he said. Those employers would have been able to hire any skilled DAPA beneficiaries and expanded DACA beneficiaries who currently can't work legally in the U.S. Most potential DAPA beneficiaries are likely low-skilled workers.
Then there is a “broader class” of employers that used to employ lower-skilled, undocumented workers, but is now having difficulty filling positions because of work-site raids by Immigration and Customs Enforcement, Capps said.
In particular, the meat and poultry processing industry, at least anecdotally, has “backed off” hiring undocumented workers, he said. But that means the industry now must “cast a wider net” to find authorized workers, he said.
Those employers likely would have benefited the most from DAPA's work permits, Capps said.
And then there are the “bad actors,” those that purposely hire undocumented immigrants in order to exploit them, Capps said. Those employers are benefiting from the status quo, he said, because providing their employees with work authorization would cause the workers either to change jobs or to advocate for better pay and working conditions.
But Kevin Lashus of Fisher Broyles in Austin, Texas, said most employers are “disappointed” by the decision. For the almost 20 years since the federal government first really started enforcing the work authorization rules implemented by the Immigration Reform and Control Act of 1986, “employers have been frustrated,” he told Bloomberg BNA July 19.
“It's an issue of exposure,” according to Lashus, who previously served as assistant chief counsel for Immigration and Customs Enforcement. “I think the American public assumed that expanded DACA and DAPA would provide employers with new workers, and that’s just not the case,” he said.
Rather, the majority of immigrants who would have benefited from the programs are already working, so implementation wouldn't have added more workers to the labor force, Lashus said. And employers know that it's likely that at least some of their employees are undocumented, even if they didn't hire them for the purpose of flouting the law, he said.
“Employers are doing as best of a job that they can,” but undocumented workers are investing in “very sophisticated fraudulent documents” to show identity and work authorization, Lashus said.
And although the federal government places the onus on employers to decipher the legitimacy of those documents, “employers are not provided tools to assist them in determining whether a document is fraudulent or not,” he said.
“Employers want clarity in terms of who they can hire, and the status quo is untenable,” Roger Tsai of Holland & Hart in Salt Lake City told Bloomberg BNA. “There were a lot of employers that were excited” about the possibility of an immigration program that would have provided more clarity in that area, Tsai said July 14.
Employers “feel like they’re still on the hook for an issue that Congress has failed to resolve,” he said. “Some of the quotas” in the employment-based visa programs “are unrealistic,” Tsai said.
Implementation of DAPA could have caused problems for I-9 employment eligibility verification compliance, depending on how the Department of Homeland Security chose to pursue enforcement, Capps of the Migration Policy Institute said.
A potential problem lies in employers suddenly being confronted with employees who appeared at the time of hire to have presented legitimate documents proving their identity and work authorization, only to find out that those were fakes because the employee now has the real thing.
That was a concern when the original DACA program first launched in 2012, but surveys of DACA beneficiaries haven't revealed I-9 problems, Capps said. DACA applies to younger immigrants who either are in school or just starting their careers, and so haven't been in the workforce long, he said.
“There's more risk to employers” from the DAPA population, which is older and more likely to have been in the workforce for a longer period of time, Capps said.
On the flip side, the programs “would alleviate about a third of the exposure” to work-site immigration enforcement that employers currently face by providing work authorization to that portion of the undocumented population, Lashus said. “And that's real money.”
With current fines for employing unauthorized workers at around $3,000, legitimizing the employment of some 4.5 million workers “amounts to over $12 billion of exposure that’s just wiped off the books,” he told Bloomberg BNA.
Tsai of Holland & Hart also pointed out the risk of a potential termination of the deferred action programs. A majority of the employers he has spoken with primarily were concerned that the Supreme Court's decision impacted DACA; it doesn't, he said.
But Donald Trump, the Republican presidential nominee, could very well end DACA if elected, Tsai said.
DACA covers a “fairly discrete” population, Tsai said. If DAPA had gone into effect, its sudden revocation would “be even more disruptive” to employers, he said.
Aside from I-9s, Capps said a bigger problem could have been DAPA applicants turning to their employers for proof that they've been in the U.S. the requisite amount of time. “That could've gotten sticky,” because providing proof of the applicant's employment essentially would mean an employer is admitting to having hired an unauthorized worker, he said.
One would think that an administration trying to facilitate a program like DAPA would “hold employers harmless” if they did come forward with this information for program purposes, but that doesn't mean that it wouldn't make at least some employers uncomfortable, Capps said.
Aside from the direct impact on employers, Capps said, the Supreme Court's decision is “a loss for the economy.” Immigrant workers who become legally authorized to work are likely to earn more because they can find jobs that better match their skill sets, he said. Higher pay means they spend more, and “that would generate further economic activity,” he said.
The economic impact of DAPA's work authorization would be somewhat muted nationwide, Capps said, but it had the potential to greatly boost the state and local economies where undocumented immigrants are concentrated, namely, California and Texas.
These undocumented immigrants “already exist in the workforce,” Tsai said. So the question really is whether they remain working for unscrupulous employers that take advantage of their immigration status, or whether they are able to gain lawful status and work for any employer they want, he said.
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