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A Path To Work Eligibility
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TPS beneficiaries have a better chance of becoming permanent residents and remaining eligible for employment in the United States than DACA workers through forms of immigration relief afforded just to that group.
Should the employee or the BSC it works for operate within the jurisdiction of the United States Court of Appeals for the Sixth or Ninth Circuit, that person is, in most instances, eligible to change to a nonimmigrant visa status or apply for adjustment of status without being forced to first leave the United States. The Ninth Circuit has jurisdiction over federal appeals originating in the Central, Eastern, Northern and Southern Districts of California, the Eastern and Western Districts of Washington, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Guam, and the Northern Mariana Islands. The Sixth Circuit covers Kentucky, Michigan, Ohio and Tennessee. In these two districts, the granting of TPS is constituted as an admission, according to the American Immigration Lawyers Association.
Some have taken issue with the fact that employees in the Sixth or Ninth Circuit have an opportunity to change to nonimmigrant visa status while others outside that district do not.
A lawsuit against the U.S. Department of Homeland Security and a portion of the U.S. Immigration Services was filed Feb. 22 by four non citizens representing the group of TPS recipients who do not benefit from the rights afforded to just TPS beneficiaries working in the Sixth and Ninth Circuit. More specifically, the lawsuit, named Moreno v. Nielsen, challenges the “defendants’ denial of their applications for lawful permanent resident (LPR) status,” according to The Civil Rights Litigation Clearinghouse, at the University of Michigan Law School.
“Sometimes litigation can change immigration policy,” says Monty of the lawsuit.
A TPS holder might still have a shot at remaining in the United States with the ability to work. A memorandum created by Monty & Ramirez explains that TPS holders who have immediate family members who are lawful permanent residents of the United States or those whose employer is willing to sponsor them might be eligible to apply for a green card via a six step process.
The steps involve, among other things, a drafting of a job description of the position the TPS member holds showing that person has the necessary skills along with a prevailing wage request, a labor market test, a submission of labor certification, an application to adjust the worker’s status to lawful permanent resident, and a personal interview with a government official.
“Because of the acute labor shortage, obtaining labor certification for skilled positions is relatively easy,” says the memo.
Monty says employers throughout the country are paying an attorney to help a TPS worker or workers apply for the right to stay and work legally.
“There is a real frenzy there where employers are realizing, “Hey, these guys are key to our business,’” says Monty.
However, the sponsorship process doesn’t always save the employee even when the employer offers up the help.
“The pitfall that arises even with an employer willing to sponsor a TPS holder is the ability to adjust status within the United States,” says Monty. “The Immigration and National Act does not allow adjustment of status through an employer if there was unauthorized employment of over 180 days, which many TPS holders have. At this point the only option is having to apply for legal permanent residency abroad, which comes with some other obstacles, such as triggering the 10-year unlawful presence bar upon leaving the United States to attend their consular interview. This bar makes them inadmissible back into the United States.”
The situation as it relates to the work eligibility of DACA recipients is worse than that surrounding TPS recipients, as little to no options are available for the employer and employee using DACA.
Should DACA be terminated, employers would have to fire all DACA recipients they’ve hired that same day. While they haven’t been forced to let employees go yet, employers are already facing increased scrutiny from U.S. Immigration and Customs Enforcement via the enhanced monitoring it has put in place, says Monty.
This action gives DACA employers the administrative burden of having to constantly re-confirm that those employees can still work legally, says Monty.
Monty says employers are also in a bind because they legally have to consider the hiring of people with limited work authority — like those with DACA and TPS privileges — even if the expectation is they soon won’t be eligible for employment.
“It’s really almost like a perfect storm for employers,” he added.
Conti says some of these in-limbo workers in San Diego are already crossing the border to Mexico so they can establish work, which is paid “under the table” in cash, because of the uncertainty.
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