The Slippery Road Toward Immigration Reform Under President Biden: Beware of ICE! – JD Supra
President Biden has proposed sweeping changes to U.S. immigration law, contained in the pending U.S. Citizenship Act of 2021. This piece of proposed legislation, as introduced into Congress by the bills lead sponsors, Sen. Bob Menendez (D-NJ) and Rep. Linda Sanchez (D-CA), contains several measures which would provide a boost to immigrants and employers aiming to expand their worker pool. However, the legislation would also ramp up enforcement efforts on the part of federal immigration officials meaning that employers should consider preparing now for increased risks and compliance challenges. What should you know about this proposal?
Overview of Proposed Legislation
The bill contains numerous provisions that would be helpful for immigrants and employers, including:
While many of these provisions are indeed very friendly to immigrants and companies seeking to employ foreign national workers, there are risks for employers contained in this proposed bill as well. Indeed, the usual horse trade when Democrats propose immigration reform with many immigrant-friendly provisions (i.e., the carrot) is that they offer some pro-enforcement provisions in an attempt to attract support from the other side of the political aisle, such as increasing worksite enforcement and audits (i.e., the stick).
Potential Risks to Employers
If the bill passes, employers will have more incentives to comply with federal, state, and local employment laws, specifically with respect to enforcement actions by ICE (Immigrations and Customs Enforcement).
Employment Authorization Changes
Title 5 of the proposed U.S. Citizenship Act of 2021 is entitled Employment Authorization and Protecting Workers from Exploitation, which envisions the establishment of a Commission on Employment Authorization. This group would consist of presidential and congressional appointees who would be charged with examining the current processes for employment authorization and proposing possible changes. The goal of the commission is to respect the rights of employment-authorized individuals to work in the United States, and to protect workers rights to be free from race and national-origin discrimination.
Employment Verification Once Again Up for Debate
Under Section 5101 of the proposed law, a commission would be established to make policy recommendations regarding employment-verification systems. The goal: to ensure employees are not incorrectly deemed ineligible for employment based on false positives, nor subject to discrimination based on race or national origin. The commission would also review the error rates for E-Verify and its impacts on various groups by national origin, race, gender, and socioeconomic background. At the end of the process, the government would be required to determine which recommendations are most likely to improve existing employment verification systems, keeping in mind whether such recommendations are feasible within existing budget restraints.
The net result of this activity certainly could involve an increase of employer compliance obligations under both E-Verify and I-9 employment eligibility verification processes. There are also provisions in the proposed legislation that would penalize employers who misuse E-Verify in ways that discriminate based on national origin or citizenship, deny employee benefits, allow unauthorized access to E-Verify data, or use an employment authorization verification system other than E-Verify.
Ramped-Up Penalties
Title 5 of the bill contains a provision which states that if an agency finds that an employer has engaged in civil violations of federal, state, or local labor laws regarding wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights or nondiscrimination regarding an unauthorized worker, the employer would be subject to an additional civil penalty of up to $5,000 for each unauthorized noncitizen worker to whom the violation occurred. This fine is separate and apart from any penalties imposed by governmental agencies for violation of the underlying statutes themselves.
Additional Provisions
Some additional provisions of the proposed legislation would aim to refresh the current immigration system in many respects.
Visa Eligibility
Another provision would expand the eligibility of U visas for those who assist with immigration-related compliance and enforcement activities. According to the USCIS, the U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity. U visa eligibility would be expanded to include workers that have been subject to serious abuse by employers, or that have, are, or will be helpful to authorities investigating, prosecuting, or seeking civil remedies for a labor or employment violation arising from workplace claims.
In addition, the Department of Homeland Security (DHS) would allow an individual to remain in the U.S., delay a removal, and grant such an individual work authorization if this person has filed for a U visa, has filed a claim, or is a material witness to a workplace claim and has, is or will be helpful during the investigation. In situations where the DHS conducts an enforcement action where a workplace claim has been filed or based on information provided in retaliation against employees regarding a claim, the DHS will stay the removal of any detained noncitizens until the law enforcement agency with jurisdiction over the violations/criminal activity has been notified and the agency has had the chance to interview the individual.
Another provision would allow immigrants in the United States on temporary work visas to assert citizenship status discrimination. This is a change from the current law, which only allows U.S. Citizens, Green Card holders, and some asylees or refugees to make such claims. The proposed law would also grant enforcement jurisdiction to the Immigrant and Employee Rights Section of the Civil Rights Division within the Department of Justice, which would remain removing this authority from where it currently resides, with the Equal Employment Opportunity Commission.
Temporary Limitations
One other provision (which is not related to worksite enforcement or penalties per se) would allow the Secretary of Homeland Security to establish procedures for temporarily limiting employment-based immigrants from entering the country and/or applying for Green Cards in geographic areas or labor market sectors that are experiencing high levels of unemployment. How this provision could be utilized, or potentially abused, is quite unclear, especially since what is meant by high levels of unemployment is not defined in the bill.
Conclusion
We will continue to monitor this bill as it makes its way through Congress.Now is a good time to make sure your internal processes and procedures do not pose potential discrimination claims, and that their I-9s are in good shape. Yourattorney can guide you through these compliance challenges before ICE ramps up its enforcement efforts.
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The Slippery Road Toward Immigration Reform Under President Biden: Beware of ICE! - JD Supra
- West Hollywood Chamber of Commerce Condemns ICE Raid on Local Business, Calls for Humane Immigration Reform - wehotimes.com - July 6th, 2025 [July 6th, 2025]
- A Path Forward on Immigration Reform That Strengthens America - GV Wire - July 2nd, 2025 [July 2nd, 2025]
- Weighing in on Trump's promise of immigration reform - Hortidaily - June 29th, 2025 [June 29th, 2025]
- Immigration Reform for Meat Processors and More Ag Input for MAHA - AG INFORMATION NETWORK OF THE WEST - June 29th, 2025 [June 29th, 2025]
- Changes Proposed by the Governments White Paper on Immigration Reform | White Paper - Freeths - June 24th, 2025 [June 24th, 2025]
- Border congressman: Arresting criminal aliens is the first step in immigration reform - Dallas News - June 22nd, 2025 [June 22nd, 2025]
- Jose Antonio Vargas on What We Get Wrong About Immigration Reform - American Civil Liberties Union - June 20th, 2025 [June 20th, 2025]
- This situation is not worthy of a great nation: Los Angeles archbishop calls for immigration reform - CatholicVote org - June 20th, 2025 [June 20th, 2025]
- Arnold Schwarzenegger Blames Both Parties, Lack Of Immigration Reform For ICE Raids - The Daily Wire - June 20th, 2025 [June 20th, 2025]
- Not going to stop: Immigration Reform group meets in Fresno - yourcentralvalley.com - June 1st, 2025 [June 1st, 2025]
- State Representative Kasey Carpenter on Immigration Reform - Georgia Public Broadcasting - May 30th, 2025 [May 30th, 2025]
- Trump can go down in history by pushing immigration reform | Opinion - Fresno Bee - May 30th, 2025 [May 30th, 2025]
- Bishop urges government to reconsider immigration reform - The Tablet - May 30th, 2025 [May 30th, 2025]
- Whatever Happened to Bipartisan Immigration Reform? - Newsweek - May 19th, 2025 [May 19th, 2025]
- UK Immigration Reform 2025: Key Changes and Business Impacts - Watson Farley & Williams - May 19th, 2025 [May 19th, 2025]
- Inaugural Mass of Pope Leo XIV Raises Hopes for Immigration Reform in Arizona - Hoodline - May 19th, 2025 [May 19th, 2025]
- UK: Government publishes proposal for major immigration reform Work ban forcing some female asylum applicants into sex work New evidence of violence... - May 19th, 2025 [May 19th, 2025]
- UK Immigration Reform deeper restrictions on the horizon - Charles Russell Speechlys - May 19th, 2025 [May 19th, 2025]
- Argentina's immigration reform to be discussed at Mercosur meeting - H2FOZ - May 19th, 2025 [May 19th, 2025]
- Nigel Farage's anti-immigration Reform UK party is riding high in the polls - IslanderNews.com - May 19th, 2025 [May 19th, 2025]
- Thailand Immigration Reform Planned as Bangkok Proposes New Interior Ministry Department to Reshape Policy for Travelers, Expats, Refugees - Travel... - May 5th, 2025 [May 5th, 2025]
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- Horse Racing Industry Urges Action On Immigration Reform To Address Labor Shortages - Paulick Report - May 5th, 2025 [May 5th, 2025]
- We Needed a New President, Not Comprehensive Immigration Reform - The Daily Signal - May 5th, 2025 [May 5th, 2025]
- May Day marches across U.S. demand workers rights, immigration reform, and economic justice - AP News - May 5th, 2025 [May 5th, 2025]
- Canada Takes Bold Steps Towards Immigration Reform By Setting New Caps For Permanent And Temporary Residents And Introducing Changes That Will... - May 5th, 2025 [May 5th, 2025]
- Failure on immigration reform comes at a high cost for Texas, San Antonio - San Antonio Express-News - March 25th, 2025 [March 25th, 2025]
- DHS closes office that advocated for migrants calling it a roadblock to immigration reform - The Independent - March 25th, 2025 [March 25th, 2025]
- Construction industry braces for higher costs due to tariffs and immigration reform - KGW.com - March 20th, 2025 [March 20th, 2025]
- Democrats aim to reverse Floridas illegal immigration reform with new legislation - WFLA - March 20th, 2025 [March 20th, 2025]
- Callously deporting longtime U.S. residents is yet another failure of Trumps immigration reform efforts | Editorial - The Philadelphia Inquirer - March 20th, 2025 [March 20th, 2025]
- Who Is Jeanette Vizguerra? ICE Arrests Immigration Reform Activist And Undocumented Mother - Times Now - March 20th, 2025 [March 20th, 2025]
- Demonstrators gather in south Omaha to protest immigration reform - Nebraska News Service - March 11th, 2025 [March 11th, 2025]
- Catholic Bishops Along the US-Mexico Border Advocate for Immigration Reform - Mwakilishi.com - March 3rd, 2025 [March 3rd, 2025]
- Letter: Comprehensive immigration reform is needed - Quad-City Times - March 1st, 2025 [March 1st, 2025]
- Media Advisory: FAIR, Sheriffs and State Legislators to Hold D.C. Press Conference Urging Border Security Funding and Immigration Reform - PR Newswire - February 25th, 2025 [February 25th, 2025]
- Letter to the Editor: Immigration Reform Would Benefit Wisconsin Farmers - Exponent - February 20th, 2025 [February 20th, 2025]
- OK, No Immigration Reform (But Lets Use The Laws Already On The Books) - A Groundbreaking Examination of U.S. Immigration Policies by Veteran Lawyer... - February 20th, 2025 [February 20th, 2025]
- Legislators Analise Ortiz, Katherine Maranda and Casar Aguilar call for immigration reform - Yahoo - February 11th, 2025 [February 11th, 2025]
- Its well past time for U.S. immigration reform (again) - Angelus News - February 11th, 2025 [February 11th, 2025]
- Protestors take to the streets to call for immigration reform in Los Angeles - uscannenbergmedia.com - February 9th, 2025 [February 9th, 2025]
- Archbishop Prez on the Need for Balanced, Compassionate, and Comprehensive Immigration Reform - CatholicPhilly.com - February 1st, 2025 [February 1st, 2025]
- Bishops across US defend migrants, calling for immigration reform in justice and mercy - Our Sunday Visitor - February 1st, 2025 [February 1st, 2025]
- Project Red Card aims to ease concerns over Trump immigration reform in Latino communities - WCNC.com - February 1st, 2025 [February 1st, 2025]
- Power to the people: governor, legislators want voters to weigh in on immigration reform - Central Florida Public Media (previously WMFE) - February 1st, 2025 [February 1st, 2025]
- Florida lawmakers file extensive immigration reform bills ahead of special session - WJXT News4JAX - February 1st, 2025 [February 1st, 2025]
- Executive Orders Are a Good Start, But We Need Lasting Immigration Reform. Here's Where to Start | Opinion - Newsweek - February 1st, 2025 [February 1st, 2025]
- Project Red Cards aims to ease concerns over Trump immigration reform in Latino communities - WCNC.com - February 1st, 2025 [February 1st, 2025]
- David Reel: Addressing border security and immigration reform - Broad + Liberty - February 1st, 2025 [February 1st, 2025]
- NMPF hoping for caution on immigration reform - Agri-News - February 1st, 2025 [February 1st, 2025]
- DOJ Letter Bolsters Drummond Appeal of Injunction Against State Immigration Reform Law - Ponca City Now - February 1st, 2025 [February 1st, 2025]
- Emotional Selena Gomez breaks down in tears, vows to support immigration reform amid deportation policies - AS USA - February 1st, 2025 [February 1st, 2025]
- 'El Norte' Director Says His 1983 Sundance Classic on Immigration Reform Is 'More Relevant Today' | Video - TheWrap - February 1st, 2025 [February 1st, 2025]
- Chicago mayor reiterates opposition to incoming Trump admin's immigration reform - Fox News - January 19th, 2025 [January 19th, 2025]
- Mann eager for immigration reform tied to border security, deportation, work permits - Kansas Reflector - January 19th, 2025 [January 19th, 2025]
- Rockford groups advocate for immigration reform ahead of Trump Administration - WREX.com - January 19th, 2025 [January 19th, 2025]
- Peoples March brings hundreds to Center City calling for abortion rights, immigration reform, and more - Billy Penn - January 19th, 2025 [January 19th, 2025]
- Jesuit Conference Office of Justice and Ecology Calls for Just and Humane Immigration Reform - Jesuits.org - January 19th, 2025 [January 19th, 2025]
- Idaho Sheriffs' Association calls for immigration reform and enforcement action - Idaho News - January 19th, 2025 [January 19th, 2025]
- Rep. Adam Gray looking forward to working with Trump on immigration reform - KTXL FOX 40 Sacramento - January 19th, 2025 [January 19th, 2025]
- Changing minds on immigration reform means changing voters priorities, not just their positions - LSE - January 19th, 2025 [January 19th, 2025]
- USCCB issues Catholic Elements of Immigration Reform - Diocese of Raleigh - January 19th, 2025 [January 19th, 2025]
- NWRA commentary: Comprehensive immigration reform could be legacy defining moment for the second Trump administration - Waste Today Magazine - January 6th, 2025 [January 6th, 2025]
- An Immigration Reform Agenda for the 119th Congress - Federation for American Immigration Reform - December 25th, 2024 [December 25th, 2024]
- Immigration reform must end funding of states with sanctuary cities - Waterbury Republican American - December 22nd, 2024 [December 22nd, 2024]
- YORK: Written off for dead, immigration reform could still live - The Albany Herald - December 22nd, 2024 [December 22nd, 2024]
- Floridas Impressive Effort to Stop Illegal Immigration Still Has One Item to Fix - Federation for American Immigration Reform - December 16th, 2024 [December 16th, 2024]
- Letter to the Editor | Trump's promised immigration reform won't happen - The Daily News - December 10th, 2024 [December 10th, 2024]
- Trump makes picks that he thinks will help his immigration reform plans - KENS5.com - December 10th, 2024 [December 10th, 2024]
- Hirono co-introduces immigration reform bill - Spectrum News - December 5th, 2024 [December 5th, 2024]
- OPINION: Beyond walls and raids: A case for humane immigration reform - The Nevada Independent - December 5th, 2024 [December 5th, 2024]
- OPINIONS: Redefining the American Dream: Why Immigration Reform Cant Wait - The Proxy Report - December 5th, 2024 [December 5th, 2024]
- With control of White House and Congress, will Republicans pass immigration reform, repeal Obamacare? - Northeastern University - November 21st, 2024 [November 21st, 2024]
- ImmigrationProf Blog: Immigration Article of the Day: What Congress Needs to Break the Immigration Reform Stalemate by Maryam Stevenson - Law... - November 21st, 2024 [November 21st, 2024]
- US Catholic Bishops Call for Immigration Reform Emphasizing Fairness and Humanity - Mwakilishi.com - November 16th, 2024 [November 16th, 2024]
- Urgent immigration reform needed to protect migrant workers in the care sector, Work Rights Centre says - Electronic Immigration Network - November 14th, 2024 [November 14th, 2024]
- Tariffs, tax cuts, and immigration reform: Trump's blueprint for second term - The Business Standard - November 14th, 2024 [November 14th, 2024]
- With Immigration Reform on the Table, Advocates Put Human Face on Califs Migrant Farmworkers - San Diego Voice and Viewpoint - November 5th, 2024 [November 5th, 2024]
- WHAT DID THE CANDIDATES SAY: Immigration reform on the City College Community Agenda, November 2024 - City Times - November 5th, 2024 [November 5th, 2024]
- As a Latina Daughter of Immigrants, I'm Voting For Immigration Reform - POPSUGAR - November 5th, 2024 [November 5th, 2024]