November 24, 2014

From The Kansas City Business Journal

by Brianne PfannenstielReporter

Kansas City Business President Barack Obama announced sweeping changes to immigration policy Thursday night. Jeff Bell, an attorney at Polsinelli PC with a focus on immigration and labor and employment, provides a breakdown of some provisions and how they could affect your company.

1. Employers may have new administrative issues

Obama's plan includes granting deferred-action status to as many as 5 million people already in the United States.

"A lot of those people are already working for employers in the U.S.," Bell said. "They might be working under assumed identities, made-up documents, different names, or maybe they're working under their right name with a made-up Social Security number. There are lots of possibilities, but those people, at least under the president's plan, will be able to apply for work authorization. Once they get it, they'll be able to apply for a Social Security number, and so then those employees might show up at the workplace with different documentation, different names, different social security numbers. It will have an impact on employers regarding how to deal with that.

2. Employers could have an easier time finding (and keeping) highly skilled talent

Another piece of Obama's plan would help workers who have been educated in the United States stay, especially in the STEM fields of science, technology, engineering and math. It includes proposals to:
Extend work authorization for H1B visa-holders to spouses. Many tech workers obtain H1B visas, but their spouses are not allowed to work, which leads many families to return to their home countries, Bell said. The president's plan includes offering some spouses authorizations to work in the United States as well.

Give STEM graduates a longer period of time after graduation during which they're allowed to work in the U.S.

Speed up the process for individuals who are seeking permanent residency after receiving an employer sponsorship. Currently, Indian nationals with master's degrees are facing a wait period of about 10 years, Bell said. Many give up and go home before that.

This all benefits employers who are looking to foreign workers to fill positions for which they can't find American workers, Bell said. It also helps them keep employees in those positions longer.

"It helps the business grow and expand by having the right workforce in place," he said. "Now you have the potential of a lot of workers who are authorized to work in the United States, so for employers looking to hire, they might have a greater pool of applicants and candidates available for certain positions than they otherwise would have. That will benefit businesses and benefit workers as well."

"You also have employment issues – employers might have honesty policies. What would they have to do with a worker who now provides different documentation than what they were hired under?

"You also have tax issues for both the company and possibly the employee. And then benefits issues. How do we account for different names and different Social Security numbers when it's the same person?

"So I think it probably is going to create some interesting scenarios for CPAs and tax attorneys to work though."

3. Employers who were benefiting from undocumented laborers may have to shape up

"I think that for employers who were benefiting from the labor of undocumented workers, those employers might face some difficulties," Bell said. "If those workers now have authorization (to be in the United States), they're much more likely to complain about their working conditions. Perhaps they won't be fearful of complaining about being mistreated or certainly leaving and looking for better opportunities."

"Certainly, the hope and expectation is that employers will pay those workers in the right way and then also withhold the right amount of taxes, and those foreign nationals would then file tax returns every year."