Worksite Harmony and the President’s Executive Actions: It’s All about Immigration Timing

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“Politics at bottom is not all that complicated. It’s all about timing.”



Facing a recalcitrant House of Representatives controlled by Republicans, President Obama made an historic announcement on November 20th outlining an array of executive actions he would take to fix as much as he could of our broken immigration system.

Understandably, public and media attention since then has focused on the four to five million people who soon may come out from hiding in plain sight. Parents of citizens and permanent residents, and an expanded class of DREAMers, will be given deferred action and work and travel permits. U.S. Citizenship and Immigration Services (USCIS) is now preparing to accept and decide a flood of new applications, all of which will be funded by user fees. But this won’t happen for up to six months.

Meantime, a dispute has arisen among Republicans about whether Congress has the power to prohibit USCIS from processing deferred action cases by starving the agency of funds. The House Appropriations Committee maintained in a statement that the Congress is powerless to prevent USCIS from financing the cost of implementing the deferred action program and according benefits through user fees:

The primary agency for implementing the President’s new immigration executive order is the U.S. Citizenship and Immigration Services (USCIS). This agency is entirely self-funded through the fees it collects on various immigration applications. Congress does not appropriate funds for any of its operations, including the issuance of immigration status or work permits, with the exception of the ‘E-Verify’ program. Therefore, the Appropriations process cannot be used to ‘de-fund’ the agency. The agency has the ability to continue to collect and use fees to continue current operations, and to expand operations as under a new Executive Order, without needing legislative approval by the Appropriations Committee or the Congress, even under a continuing resolution or a government shutdown.

Senator Jeff Sessions (R-AL) disagrees and is reportedly brandishing a Congressional Research Service (CRS) opinion letter described, but not released, by the far right blog, Breitbart, which suggests that Congress can bar appropriated funds, including user fees, from being deployed in a way that contravenes a statute. The actual CRS report, available here, provides:

A fee-funded agency or activity typically refers to one in which the amounts appropriated by Congress for that agency or activity are derived from fees collected from some external source. Importantly, amounts received as fees by federal agencies must still be appropriated by Congress to that agency in order to be available for obligation or expenditure by the agency. In some cases, this appropriation is provided through the annual appropriations process. In other instances, it is an appropriation that has been enacted independently of the annual appropriations process (such as a permanent appropriation in an authorizing act). In either case, the funds available to the agency through fee collections would be subject to the same potential restrictions imposed by Congress on the use of its appropriations as any other type of appropriated funds. (Footnote omitted; emphasis added.)

The CRS report did not mention, however, that the Immigration and Nationality Act (INA) already contains “a permanent appropriation in an authorizing act,” INA § 286(m), 8 U.S. Code § 1356(m), which states in relevant part:

Immigration examinations fee account.–Notwithstanding any other provisions of law, all adjudication fees as are designated by the Attorney General in regulations shall be deposited as offsetting receipts into a separate account entitled “Immigration Examinations Fee Account” in the Treasury of the United States, whether collected directly by the Attorney General or through clerks of courts: Provided, however, . . . That fees for providing adjudication and naturalization services may be set at a level that will ensure recovery of the full costs of providing all such services, including the costs of similar services provided without charge to asylum applicants or other immigrants. Such fees may also be set at a level that will recover any additional costs associated with the administration of the fees collected. (Emphasis added.)

According to a former senior Executive Branch official who helped me confirm the government’s interpretation of INA § 286(m), this provision has historically been construed as a “permanent, indefinite appropriation” of funds for USCIS to operate its adjudication functions through user fees. This is confirmed by the White House and USCIS in guidance offered during the 2013 government shutdown. The requirement in INA § 286(m) that “adjudication fees” be designated “in regulations” by the Attorney General (now USCIS, since the passage of the Homeland Security Act) is satisfied by regulations found at 8 CFR § 103.7 (b)(1)(i)(C)(Biometric Fee of $85), 8 CFR § 103.7 (b)(1)(M)(3)(Application for Advance Parole [international travel permission] fee of $360), 8 CFR § 103.7 (b)(1)(HH)(Application for an Employment Authorization Document fee of $380), and 8 CFR §274a.12(c)(14) (allowing issuance of an Employment Authorization Document to persons granted deferred action).

So as USCIS readies itself to accept a flood of new applications for deferred action, and work and travel permits, the agency has already announced that the affected class would not be allowed to file their applications until later in 2015, and must wait even longer before final action is taken:

A4: The timeframe for completing this new pending workload depends on a variety of factors. USCIS will be working to process applications as expeditiously as possible while maintaining program integrity and customer service. Our aim is to complete all applications received by the end of next year before the end of 2016, consistent with our target processing time of completing review of applications within approximately one year of receipt. In addition, USCIS will provide each applicant with notification of receipt of their application within 60 days of receiving it. (Emphasis added.)

Another executive action approved by the White House — one that can be implemented relatively quickly — is the formation of an “Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.” Headed by the Labor Department, the group will include the National Labor Relations Board, the Equal Employment Opportunity Commission and the Departments of Justice and Homeland Security. Presumably, the Justice Department’s role will be filled by the Office of Special Counsel for Unfair Immigration Related Employment Practices, and Homeland Security’s participation will likely be led by U.S. Immigration and Customs Enforcement and its unit, Homeland Security Investigations.

Unlike the newly-announced but slow-to-arrive immigration benefits for the undocumented, the working group can conceivably be up and running and start enforcing immigration and employment law sanctions at America’s worksites as quickly as the ink is dry on any updates to cross-memoranda of understanding (MOUs) between and among the group’s members, such as the December 7, 2011 Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites and the MOU between DOJ and the NLRB.

There’s an obvious problem, however, with the slow grant of work permits to the undocumented and the much quicker enforcement of worksite violations. The President did not announce a deferral of enforcement of the Immigration Reform and Control Act of 1986 — the Reagan era law and later amendments which sanction businesses that employ workers whom the employer knows lack employment authorization (IRCA’s § 101) or who commit unlawful acts of immigration-related discrimination (IRCA’s § 102). It did not even issue a memo similar to the agency guidance offered in 2001 which gave employers a hint of modest relief when sponsoring undocumented workers for labor certification to gain “245(i)” benefits under the LIFE Act. Thus, employers are still at risk if they become aware that any undocumented workers are planning to apply, or have applied, for benefits under the new executive actions on immigration.

Imagine the scene at the company lunchroom. A group of obviously jovial workers are huddled together at a table filling out USCIS applications for benefits under the DACA (Deferred Action for Childhood Arrivals) or DAPA (Deferred Action for Parental Accountability) program. Bert Busybody, the director of HR, walks by and asks them why they are so gleeful. In unison, they reply, “because President Obama is allowing us to work legally.” Arguably, these workers must now be terminated from employment since Bert, as a supervisory representative of the employer, seems to have actual knowledge of the workers’ unauthorized status.

This type of worksite disharmony can be avoided if USCIS and the Homeland Security Department take appropriate action right away. As my colleague, Tony Weigel, has suggested to me, the Secretary of Homeland Security, Jeh Johnson, has authority to resolve this dilemma and allow interim employment authorization while USCIS adjudicates applications for deferred action and three-year work permits. The Secretary could merely hold that the issuance by USCIS of a receipt for a non-frivolous (meaning “patently without substance”) request for deferred action and work permission would constitute an interim document of employment authorization (say, with only six months’ validity) and a List C document for I-9 purposes under the following regulation:

8 C.F.R. § 274a.12(a) Aliens authorized employment incident to status. Pursuant to the statutory or regulatory reference cited, the following classes of aliens are authorized to be employed in the United States without restrictions as to location or type of employment as a condition of their admission or subsequent change to one of the indicated classes. Any alien who is within a class of aliens described in paragraphs . . . (a)(10)-(a)(15) . . . of this section, and who seeks to be employed in the United States, must apply to U.S. Citizenship and Immigration Services (USCIS) for a document evidencing such employment authorization. USCIS may, in its discretion, determine the validity period assigned to any document issued evidencing an alien’s authorization to work in the United States. . . . .

8 C.F.R. § 274a.12(a)(11) An alien whose enforced departure from the United States has been deferred in accordance with a directive from the President of the United States to the Secretary. Employment is authorized for the period of time and under the conditions established by the Secretary pursuant to the Presidential directive.

There is abundant precedent for such a flexible approach in situations where the government is not in a position to grant work authorization quickly. For example, because USCIS cannot speedily confer new grants of employment authorization to certain beneficiaries, e.g., holders of Temporary Protected Status (whose work permits are extended merely by publication of a notice in the Federal Register [see Form M-274, "Handbook for Employers," pp. 13-14]), and conditional permanent residents who are allowed to work based on issuance of a receipt while awaiting an adjudication of a petition requesting the removal of conditions on residence under the marriage-based green card provisions or the EB-5 immigrant investor category.

If this flexible solution is adopted, the only remaining problem is the gap period from now until the date when USCIS is ready to allow filing of new immigration-benefits requests by the undocumented who believe they qualify under President Obama’s executive actions. The solution can be found in an embrace of the President’s sentiments espoused on November 20th:

Scripture tells us that we shall not oppress a stranger, for we know the heart of a stranger — we were strangers once, too. My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too.

Thus, under the same abundant legal authority for prosecutorial discretion that the White House Office of Legal Counsel and a bevy of legal scholars confirmed, the Secretary of Homeland Security should announce a temporary, six-month deferral of enforcement of employer sanctions arising under IRCA § 101 (INA § 274A; 8 U.S. Code § 1324a) – the provision punishing I-9 paperwork violations and the employment of persons whom the employer knows lack work permission — with exceptions for human traffickers and felonious harborers under INA § 274 (8 U.S. Code § 1324a) .

Having spoken so eloquently about “the determination of immigrant fathers [and presumably, mothers] who worked two or three jobs without taking a dime from the government, and at risk any moment of losing it all, just to build a better life for their kids,
” the President should take the next step and offer real-world, flexible solutions to IRCA-induced workplace disharmony, measures that would avoid financially endangering families by government-mandated terminations of employment as they prepare to “come out of the shadows and get right with the law.”