Immigration Reform in the Construction Industry
Few industries provide such a compelling study of U.S. immigration policy as design and construction. From architecture and engineering to the skilled and semi-skilled trades, the construction industry offers the perfect foundation upon which to hold a robust discussion of immigration reform efforts.
Last November, the Obama administration released its plan for Executive Action providing limited relief to foreign nationals lawfully and unlawfully present in the U.S. A federal district court judge in Texas is attempting to throw the last stone by enjoining the most controversial portions of the president's efforts. Both within and beyond the specific provisions of the president's Executive Action, there are three essential parts of the immigration reform equation: legal immigration, illegal immigration and the role of employers in executing immigration priorities. All three of these areas are in dire need of attention and all three uniquely impact the construction industry.
Legal Immigration (Visas and Green Cards for Professionals)
Our immigration system consists of numerous temporary visa categories, as well as several permanent paths to green card status (permanent residence) based on offers of employment. While some visa solutions are available to foreign nationals pursuant to free trade agreements (Canada, Mexico, Australia, Singapore, and Chile), the most common visa category under U.S. law is the H-1B visa category. The H-1B is available to foreign nationals working in "specialty occupations," defined as positions that require a minimum of baccalaureate level education in a specific discipline (i.e. engineers and architects).
The H-1B program is highly regulated by both the U.S. Department of Labor and Citizenship and Immigration Services (under the U.S. Department of Homeland Security) carrying with it employer obligations to meet or exceed the prevailing wage for the occupation, offer benefits, post notice, and create and maintain a Public Access File on each H-1B worker, amongst other requirements. In addition, Congress has assigned an annual limit or quota on the number of first-time H-1B applicants each fiscal year. In addition to the "regular" quota of 65,000, there is an additional 20,000 H-1B visas awarded to graduates of U.S. master's programs in recognition of our policy on retaining the most talented foreign students graduating from U.S. institutions of higher education. Other than in years when Congress intervened and temporarily raised the annual quota (2001-2003 during the tech boom), not only has the quota been consistently reached over the last 15 years or so, but it has been reached months before the start of the fiscal year. For fiscal year 2015, approximately 172,500 applications were received against the total quota of 85,000 and 233,000 were recently received for fiscal year 2016 (which begins October 1, 2015).
The president's Executive Action did not make mention of the H-1B program or the woefully insufficient quota system. The administration understands numerical allocation of H-1B visas remains within the purview of Congress. However, Executive Action does call for reform in several other areas of legal immigration, including providing employment permission to the spouses of certain H-1B workers, reforming the L-1B visa program and work permission for foreign students and graduates from U.S. universities, creating temporary solutions for foreign entrepreneurs in an effort to promote research and retain innovation in the U.S., and modernizing the employment-based green card system.
Illegal Immigration (Why "Get in Line" is a Fallacy)
As referenced above, there are virtually no immigration solutions available for semi-skilled or even skilled trades never mind those contributions by unskilled, yet critical, labor. While the battle cry to "get in line" is a compelling sound bite, it rings hollow given the lack of a pathway. The Obama administration's efforts to provide limited immigration relief include the following:
Deferred Action for Childhood Arrivals - Suspended Pending Injunction
This is an expansion of an existing program ("DACA") introduced two years ago granting temporary relief from deportation through the use of prosecutorial discretion and employment permission to individuals who were brought to the U.S. as young children. The proposed expansion of the program would provide similar temporary relief to a larger but still limited portion of the undocumented immigrant community. The president's Executive Action eliminates the age limit on the existing childhood arrival program (current age cap of 31 years old), advances the date for continuous physical presence in the United States to January 1, 2010 (rather than the current date of June 15, 2007) and extends deferred action and employment benefits to three years (from the current two years). The foreign national must still have entered the U.S. before their 16th birthday and have no lawful immigration status, and must meet the other presence, as well as education and background check requirements. Implementation of the expanded DACA program is currently suspended pending litigation. The current DACA program and extensions thereof remain in place.
Deferred Action for Parental Accountability - Suspended Pending Injunction
This new program ("DAPA") would provide deferred action and employment permission for three years to parents of U.S. citizens or permanent residents (green card holders) who have been present in the U.S. since January 1, 2010, as of the date of the president's announcement (November 20), and at the time of the DAPA request. Similar to DACA, the parental program is only available to those not currently in lawful status and who have not been convicted of certain crimes. The parental program also has been suspended pending litigation.
Many of those unlawfully present in the U.S. actually have a viable path to green card and eventually U.S. citizenship based on an existing family relationship. However, because of their undocumented status, current law subjects those potential applicants to three or 10 year bars from those immigration benefits. Waivers are available but only in instances where applicants can establish that their removal would result in "extreme hardship" to the U.S. citizen relative leading to unpredictable outcomes for applicants. Since 2013, certain unlawfully present persons have been able to file for waivers of the three and 10 year bars before leaving the U.S., rather than departing and processing the waivers in their home country. Currently this process only applies to spouses and children of U.S. citizens. Through the president's Executive Action, the process will extend to other classes of relatives, including spouses and children of permanent residents and adult children of U.S. citizens and permanent residents. Clarification of the factors constituting "extreme hardship" is also expected, such as what constitutes sufficient family ties to both the U.S. and the home country, conditions in the home country, age and health of the U.S. citizen or permanent resident spouse or parent, financial issues and length of the foreign national's residence in the U.S. No specific timeline has been provided and will require the affected agencies to issue new guidelines and regulations.
I-9 Employment Verification (Reconciling Enforcement Compliance with Business Objectives)
While not specifically mentioned by the president, it is worth noting that providing temporary or longer term relief and employment permission to millions of previously undocumented workers will not go unnoticed by the business community. Balancing compliance with I-9 employment verification obligations and addressing an existing workforce that begins to produce new documents that are inconsistent with prior disclosures on immigration status will present interesting challenges. It will be important for employers to work closely with competent immigration counsel in determining how they can and should respond to these new circumstances in a way that maintains compliance with I-9 requirements and employment discrimination laws.
Similarly, future reform measures likely will contain even stricter employment verification measures, including perhaps, mandatory enrollment in the federal E-Verify program. While some employers are already enrolled in E-Verify on a voluntary or mandatory basis (as federal or state contractors), many employers are not yet enrolled and will need to explore their hiring practices and the business consequences of stricter compliance in this area.