Immigration reform and diversifying your workforce

While employers often extoll the virtues of diversity, they also describe the difficulties of achieving greater diversity in their workforce. Employers cite reasons such as their inability to: find qualified diverse applicants; retain diverse employees; identify where to look for candidates of diverse backgrounds; or compete with other companies (in terms of salary, benefits, etc.) for the qualified diverse candidates out there. Several recent immigration reform initiatives, however, may help to decrease such complaints.

America is a country of immigrants. This is particularly true of the state of Illinois, which boasts one of the highest percentages of foreign-born residents of any state. Over 14% of Illinois’s population was born in a foreign country. This diverse foreign-born population calling Illinois its home includes immigrants from almost every country on the globe, with a heavy concentration of immigrants from places such as India, Pakistan, China, Poland and Ukraine. Our state’s immigrant population includes not only many highly-skilled workers who have migrated to the United States based on their educational qualifications or professional experience, but many undocumented immigrants too. The undocumented population in Cook and the collar counties has traditionally presented a challenge for employers seeking to hire them, particularly if these immigrants either possess a skill that an employer wants or a willingness to work in a position that an employer wants to fill.

Reforms of the immigration laws enacted in 1986 made it particularly risky for employers to hire undocumented aliens by creating the I-9 verification scheme. The Immigration Reform and Control Act (“IRCA”), requires a U.S. employer to verify within 3 days of hire that a worker has authorization to work in the United States. This rule applies to all workers, regardless of race, religion, national origin or citizenship status. Penalties for failing to complete I-9s, or worse, willfully hiring a foreign national lacking work authorization, can be significant. They range from a monetary fine of over $1,000 per I-9 violation (this includes fines for failing to properly complete an I-9, or a substantive violation) to criminal penalties for willfully hiring or employing a foreign national lacking work authorization. Increased audit activity by federal agents in industries with a heavy concentration of blue-collar workers has only heightened the risks for employers.

Against this backdrop, recent executive actions enacted by the President and the Department of Homeland Security (DHS) could alleviate some of these risks. On November 20, 2014, President Obama ordered the DHS to expand an existing program called DACA (Deferred Action for Childhood Arrivals), and to enact a new program called DAPA (Deferred Action for Parental Accountability). These programs are estimated to collectively provide work authorization to 4 million undocumented individuals across the U.S. who meet certain specified criteria. The DHS is also implementing new rules that would expand work authorization to many other individuals, including the spouses of H-1B “specialty occupation visa” holders in selected circumstances. Specifically, these employees will be able to present an employment authorization document (EAD) to satisfy an employer’s I-9 responsibilities and will not require visa sponsorship. Together, these programs are expected to impact hundreds of thousands of individuals in the state of Illinois, alone.

So what does immigration reform have to do with diversity? First, it should be noted that the expanded DACA and DAPA programs are currently subject to an injunction issued by a federal court in Texas. But the administration has moved for an emergency stay of this injunction in the Fifth Circuit Court of Appeals. So although there is uncertainty over the DACA and DAPA initiatives at the time of writing this article, at a minimum, it is still safe to assume that rules such as those impacting the work authorization of H-4s will make it easier for employers to achieve the goal of a more diverse workforce.

Second, while many of the foreign nationals expected to benefit from these reforms to our immigration system are undocumented, many of them are highly educated. Indeed, Illinois is one of the few states to offer in-state tuition to undocumented students (H.B. 60 passed in 2003). The State extended these benefits in 2011 through the Illinois Dream Act, which made certain Illinois state college savings programs available to immigrant youth, regardless of their immigration status in the United States. These changes address many of employers’ most commonly cited and perceived barriers to a more diverse workforce.

Our country and state’s workforce is rapidly changing due not only to these programs but also as a result of long-term trends, such as decade-long waves of legal immigration to the U.S. and many first-generation Americans becoming a part of the workforce. This diversification of the workforce has produced benefits for business. As a result, more employers are now striving to achieve greater diversity in their labor forces. Indeed, Mead Johnson Nutrition, a baby formula maker, recently decided to move to Chicago from north suburban Glenview at least, in part, due to the city’s diverse talent pool. Archer Daniels Midland, one of the world’s largest agricultural processors, moved its headquarters last year from Decatur, IL, to Chicago for similar reasons. These moves are a growing recognition of the value of diversity in the workforce, and demonstrate that cities and communities with a welcoming attitude towards diversity and immigration stand to experience great economic benefit.

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This article was originally published in the Kane County Bar Association’s Bar Briefs April 2015 Diversity issue.

Edward N. Druck is a partner in the Labor & Employment and Higher Education Practice Groups at Franczek Radelet P.C. He represents clients in employment and labor law matters and is experienced in all aspects of litigation before federal and state courts and administrative agencies. He also represents clients in hearings before arbitrators. He counsels clients on a variety of employment issues including union elections and claims of unfair labor practices and discrimination, I-9 and wage and hour compliance matters, and employment agreements. During his nearly 25 year career, he has developed significant experience in non-compete, trade secret and restrictive covenant disputes and frequently litigates and advises clients on these matters. He serves on several diversity committees and has written and presented on issues of diversity and inclusion for a number of years.

Tejas Shah is immigration counsel at Franczek Radelet P.C., leading the firm’s immigration practice and serving as a member of the Labor & Employment and Higher Education Practice Groups. He is actively involved with and has been appointed to leadership positions in many immigration-focused associations and bar associations. He served as the 2014 president of the Indian American Bar Association of Chicago. He is currently the co-chair of the South Asian Bar Association (SABA) of North America’s immigration committee, and, starting in mid-2015, he will become chair of the Illinois State Bar Association’s International and Immigration Law Section Council. He also previously chaired the New Members Division for the Chicago Chapter of the American Immigration Lawyers Association, served on the Customs and Border Patrol Liaison Committee, and the liaison committee to the local office of the USCIS.