Under President Barack Obama’s deportation deferral program, up to 1.76 million unauthorized immigrants will be allowed to work legally in the U.S. according the data from the Migration Policy Institute.

The program allows undocumented immigrants to legally seek employment provided they meet a number of criteria. In order to qualify, applicants must have immigrated to the U.S. prior to their 16th birthday and meet certain educational and service thresholds, like serving in the military. Earlier this month, tens of thousands of applicants began

The program presents a number of legal questions for business owners who may now have a surge in job applicants. There is also uncertainty about the program’s future if President Obama is not elected to a second term in office.

Tampa-based attorney Bill Flynn who heads up the immigration practice at the Fowler White Boggs law firm says, “A lot of information is yet to be determined as the details of the procedural aspects of the program come out over the next couple of months.”

According to the Migration Policy Institute, businesses in Texas, California, Florida, Illinois and New York could be disproportionately impacted by the program. The institute estimates that about 57 percent of potential beneficiaries of the program reside in those states and there is no clear mandate on how state governments are to respond. Last week, Arizona governor Jan Brewer directed state agencies to deny some benefits to participants in the program.

Contrary to the concerns of some who fear the labor force will be flooded with unqualified workers scrambling for low-wage jobs, the MPI estimates that up to 44 percent of potential applicants have completed bachelor’s programs. And an estimated eight percent have completed advanced degree programs.

Once they find employment, participants in the deportation deferral program will be required to present their new employers with an employment authorization document, which reportedly resembles a driver’s license.  The form will satisfy the worker’s employment eligibility and must be reported on the employee’s I-9 form.

Engage PEO chief executive officer Jay Starkman, whose company provides human resources to small- and mid-sized businesses, says things can become a little trickier for newly authorized workers who have previously been employed under false pretenses.  He says many employers will find themselves in a “damned-if-you-do, damned-if-you-don’t” situation. He says some employers will consider the employee’s previous deception as grounds for termination.  But in such cases, he warns, “They’re out of work because you fired them, and there are lawyers out there ready to pounce.”

Starkman says employers who retain their newly documented employees may also be at risk for having circumvented the law by hiring them without proper documentation. He urges these employers to document everything to prove they have acted in accordance with the law. “State that on a certain date you did the following and you now believe in good faith that your employee is in compliance with federal work authorization rules,” he says.  He also warns employers to be sensitive to confidentiality provisions which he says are unclear. The best policy, he says, is to simply not discuss the immigration status of any or your employees.

Karen E. Klein. “Lawyers Expect Young Immigrants to Flood Small Employers”
http://www.businessweek.com/articles/2012-08-20/lawyers-expect-young-immigrants-to-flood-small-employers  Bloomberg Businessweek  08/20/2012

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