Potential Immigration Changes Under the Obama Administration

August 7, 2009

Excerpted from Michigan Employment Law Letter and written by an attorney at the law firm of Vercruysse Murray & Calzone, P.C.

by Debbie Clephane

There are three areas of immigration policy that will most certainly be at the forefront of President Barack Obama's immigration agenda: (1) enhanced border security, (2) a refocus on employer responsibility, and (3) passage of comprehensive immigration reform. This article provides a glimpse of what we can expect from the new administration.

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Increased border security, employer responsibility
As part of the push for comprehensive immigration reform, the Obama administration will significantly ramp up the use of technology (including work site enforcement through E-Verify), electronic surveillance, and border patrols in its effort to enforce current immigration laws. The President showed his hand on border security issues when he selected former Arizona Governor Janet Napolitano as secretary of the U.S. Department of Homeland Security (DHS).

Though a Democrat by voting record, Napolitano is considered by some to be rather hawkish on border security. While governor of Arizona, she was a proponent for stronger security measures to deter illegal border crossings and sought to implement the E-Verify program for all Arizona employers. It's clear that the E-Verify system will continue to gain in size and prominence as a key component of homeland security under the Obama administration.

In contrast to former President George W. Bush, Obama has regularly stated that he supports penalizing employers that exploit immigrants. He has also condemned U.S. Immigration and Customs Enforcement (ICE) raids, like the ones that occurred during the Bush administration, as being divisive of family and ineffective. The DHS has issued new work site enforcement guidelines redirecting the focus from illegal workers to employers. The guidelines require agents "to conduct carefully planned criminal investigations" of employers and to search for indicators that employers may be participating in visa fraud or smuggling. In addition, ICE agents are now required to get indictments or search warrants before arresting employees.

President Obama's selection of Hilda Solis as the secretary of the U.S. Department of Labor (DOL) also has the potential to strengthen immigration control through the robust enforcement of federal labor laws. Employers can expect the DOL to increase investigations of employers that use but don't follow the rules of the non-immigrant worker programs. Areas of regulatory inspection will presumably be the H-1B and H-2 programs, with Labor Condition Application (LCA) compliance investigations and labor certification filing complaints expected to rise. Also, heightened scrutiny of the permanent labor certification process (PERM) may make it more difficult to obtain PERM certifications.

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Reform on the way
Despite high unemployment numbers, Obama has reconfirmed his pledge to overhaul the U.S. immigration system -- a pledge that he made to Hispanic groups during the presidential campaign. As part of comprehensive immigration reform, he wants to create a plan that will grant legal status to the estimated 12 to 14 million illegal aliens currently in the United States. He favors allowing "undocumented immigrants" who are not criminals to pay a fine, learn English, and have the opportunity to stand in the back of the line and become U.S. citizens.

The Obama administration believes that our immigration system is broken and must be fixed to ensure a complete solution that secures our borders, enforces the law, and reaffirms our nation's global heritage. The President's goals are to strengthen border control, reunite families that have been torn apart under existing immigration laws, remove employer incentives for hiring illegal workers, and provide a legal path for citizenship for individuals currently in the country illegally.

Bottom line
Employers should expect a 180-degree change in philosophy between the Bush and Obama administrations. With that said, here are a couple of steps you can take to prepare for the enhanced enforcement efforts of the new administration:

• conduct audits of I-9s, LCAs, and related record keeping to ensure compliance; and
• be aware of new state laws that may complement heightened federal enforcement of immigration laws.

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Debbie is an attorney and shareholder with Vercruysse Murray & Calzone, P.C., in Detroit. She can be reached at (248) 433-8730.

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Copyright 2009 M. Lee Smith Publishers LLC. This article is an excerpt from MICHIGAN EMPLOYMENT LAW LETTER. MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this Law Letter is to make you aware of the implications of several contemporary problems. This Law Letter is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation.

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