Over the past few years, there have been much higher rates of immigration than had previously been projected. In 2019, the Congressional Budget Office (CBO)—which is tasked with providing independent, nonpartisan analysis of economic and budgetary issues to support the Congressional budget process—estimated that net immigration in 2023 would total one million people. Now that 2023 has passed, the CBO has estimated that net immigration in 2023 was actually closer to 3.3 million. That net increase in immigrants can significantly affect the labor market by altering the supply of available workers. With the increase, it may be a good time for your business to learn more about recent developments in immigration law.
Refugees, Asylum Seekers, and Asylees
We often hear the terms “refugee,” “asylum seeker,” and “asylees,” but it may not be clear what those words mean in the immigration context. All three of the categories describe individuals who have left their countries and come to the United States.
“Refugees” are people who have fled their countries to escape conflict, violence, or persecution and have sought safety in another country. A refugee applies for protection while overseas and enters the United States as a refugee.
“Asylum seekers” are those who have come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution based on race, religion, nationality, membership in a particular social group, or political opinion. An asylum seeker who seeks protection from persecution and serious human rights violations in another country hasn’t yet been legally recognized as a refugee and is awaiting a decision on their asylum claim. Asylum seekers must be in the United States or at a port of entry (an airport or an official land crossing) to request the opportunity to apply for asylum. Asylum seekers can seek employment authorization to work in the United States 180 days after submitting an asylum application and while that application is pending (unless certain conditions are not met).
An “asylee” is someone seeking asylum who has been granted asylee status.
While every refugee is initially an asylum seeker, not every asylum seeker will ultimately be recognized as a refugee. The right for an asylum seeker to be recognized as a refugee is determined by U.S. law. Both refugees and asylees are employment eligible.
Policy Changes at the Southern Border
On June 4, 2024, the Biden administration issued an Executive Order to suspend most asylum claims at the U.S.-Mexico border. The order allows the president to partially suspend asylum requests at the U.S.-Mexico border when daily unauthorized crossings reach a threshold of 2,500 people. The order also severely restricts asylum eligibility for those who illegally enter the United States across the southern border—including the Southwest land and the southern coastal borders. The order also affects credible fear interviews (CFI) by limiting them to those who manifest a fear or express a desire to file for protection.
Taken together, the measures outlined in the order are intended to implement strategies for handling matters timely and consequences for those who cross the U.S. borders illegally or who attempt to present themselves at ports of entry without authorization. Those ordered removed will be subject to at least a five-year bar to re-entry and potential criminal prosecution.
The order is meant to be temporary and will be suspended when daily encounters are less than 1,500 people between ports of entry. The order will go back into effect if an average of 2,500 encounters take place over a consecutive seven-day period.
The employment impact of the temporary border entry limitations is likely to have the biggest immediate effect on border states. Some employers in those states employ undocumented workers, even though doing so is unlawful.
Steps Employers Should Take Now
The immigration landscape has been changing in recent years, with increased focus on immigration trends and policies, and further change is expected that will affect both employees and employers. It likely goes without saying that employers must stay informed on legal developments at both the state and federal levels. Proper completion of the Form I-9, including reviewing appropriate documentation, visa status, and work permits is critical to ensuring that employees are authorized to work in the United States and avoiding monetary citations. (If you haven’t done so lately, you should consider auditing your Forms I-9.)
Further, with the potential for more immigrant workers to enter the workplace, you should ensure—through training, policies, or otherwise—that employees understand the workplace policies on diversity, including that discrimination or harassment based on national origin, ancestry, or any other protected characteristic is unlawful. You should also review your recruitment, onboarding, and retention processes to confirm you don’t unintentionally engage in discrimination.
Finally, if you are short-staffed and need to expand your candidate pool, consider tapping into the global workforce living in the United States by focusing efforts on areas with high immigrant populations and offering remote work options. And, perhaps most importantly, be transparent with your employees about your hiring efforts.
Marylou Fabbo is a partner at the firm Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts, and can be reached at mfabbo@skoler-abbott.com.