California Protects Illegal Immigrant Workers | DCR Workforce Blog

California Protects Illegal Immigrant Workers

The issue of illegal immigrants, and their rights, is a hotly contested issue at both the Federal and State level. In an effort to address this issue, California, one of the “border states”, has struggled to enact legislation that is fair to both workers and employers. California legislators will attest to the difficulty in finding that balance. The state recently signed a new law (Assembly Bill 263) protecting undocumented workers from retaliations against protected actions. Assembly Bill 2751 has just been passed, amending the new law to limit the restrictions on employers who discipline workers for misrepresenting their personal information.

The original bill was intended to prevent unfair immigration-related practices which include threatening undocumented workers who complain about work conditions. The bill prohibits employers from filing police reports, reporting the worker to federal agencies or calling in immigration authorities to have them deported. Workers are also protected by law when they change their name lawfully, or submit a new social security number or federal employment authorization document. These provisions make it possible for workers to revise their immigration and work authorization status without being accused of making false statements and being terminated by their employers. The amendment clarifies that employers may discipline or terminate workers who make false statements not related to their immigration status. The law promises equitable relief and damages, penalties (of $10,000 per worker) and revocation of business licenses.

A recent Gallup poll said that immigration is considered by many, irrespective of political affiliations, as a very important problem facing America today. The definition of the problem changes depending on who you are talking to. Some see it as the failure to stop illegal immigration into the country through lax security at the borders. Others speak to the need to promote immigration to increase the availability of needed skills by providing work visas to qualified candidates from other countries. In both positions, legislators struggle to define the course to take with the 11 million (approx.) undocumented workers who are already in the country.

All along, employers were guided by the Federal Immigration Reform and Control Act (1986) which prohibited the employment of unauthorized workers and actually required their termination, if and when discovered. Now, this law upholds the right of all employees to the available protections, irrespective of immigration status.

The answer to these concerns is supposed to come in the form of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, balancing these two positions to strike a middle path.

Some developments in the wake of this proposed legislation would include:

  • Businesses will need to make extensive and appropriate use of E-verify to ensure that the candidates they plan to hire is legally authorized to work in the United States. Today, each state determines whether E-verify is required, or even if it should be used.
  • Immigration status would place greater emphasis on employment-related reasons rather than family-related reasons. Immigration would be purely based on education, employment eligibility and personal assets.
  • Legal immigrants would not be able to petition for their siblings to also move to the US.
  • At least 120,000 foreign-born people each year would be eligible for green cards based on points awarded for their skills and education, as well as their family ties and the time they have lived in the United States..
  • The diversity visa program would allow people from countries which do not send many immigrants to the US to get green cards without a family member or employer to petition for them.
  • Illegal immigrants can also attain citizenship if they stick to the schedule set for them – stretching over a period of 13 years. Young immigrants who crossed over alone would have a shorter time frame of 5 years.
  • Increased security along the borders would be established. The estimated cost would exceed $6.5 billion.
  • The bill will protect immigrants who come in as farm workers or low wage workers by running programs which shield them from exploitation.
  • The annual cap on H1-B visas could rise to 110,000 from the current 65,000 – and ultimately increase up to 180,000.

Technology companies in America have always asked for more H1-B visas to be issued to meet their talent requirements. In the light of the emerging labor shortages at the global level, revamping America’s immigration system is the only way ahead for companies to meet their workforce needs in the short term. While we wait for the House of Representatives to consider the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, individual states will continue to struggle to enact and enforce laws that protect everyone’s rights – citizens and undocumented workers alike.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.