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Keith Covington practices labor and employment, immigration, and construction law in the firm’s Birmingham office. He counsels employers on a wide variety of topics, including labor relations, union avoidance, equal employment opportunity, OSHA compliance, disability accommodation, non-compete agreements, and issues relating to employee discipline and termination. His immigration practice includes worksite compliance and obtaining employer-based non-immigrant and immigrant visas for foreign national employees. View articles by Keith

The Iceman Cometh: Worksite Immigration Enforcement on the Rise, So Check Your I-9sAs the Trump administration’s crackdown on illegal immigration proceeds on numerous fronts, employers increasingly find themselves caught in the crosshairs. In fact, U.S. Immigration and Customs Enforcement (ICE) recently announced that it commenced approximately twice as many worksite investigations and I-9 audits in the first seven months of FY2018 (which began on October 1, 2017) as it did in all of FY2017. This dramatic upsurge is consistent with the December 2017 comments of then-Acting ICE Director Thomas Homan that he wanted “to see a 400% increase” in ICE’s worksite enforcement operations.

The Importance of Proper Form I-9 Compliance

In today’s environment, employers must be proactive to make sure they don’t unwittingly find themselves in hot water with ICE. The key to avoiding ICE problems is rigorous Form I-9 compliance. ICE is only required to provide a three-day notice of an I-9 audit; if your Form I-9s are not in order, you can face substantial monetary liability.

Employers must complete a Form I-9 for every new hire, regardless of citizenship or immigration status. Even one missing or incomplete Form I-9 can result in a violation, and the fines typically increase significantly as the number of violations discovered goes up. In addition, if an ICE audit reveals that there are unauthorized employees in the employer’s workforce, shoddy Form I-9 compliance can be considered evidence that the employer had constructive knowledge that those employees were unauthorized. This can result in even more exposure.

What Specific Measures Should Employers Take?

The time to make sure your Form I-9 compliance is in order is now. These tips can help eliminate or reduce your potential I-9 liability:

  • Training. Make sure that the company representatives responsible for Form I-9 compliance understand the process and are committed to doing it correctly. The Form I-9 is only two pages long, but it can be confusing, and completion errors are common. Proper training is essential.
  • Check the form. Use the correct version of the Form I-9. The USCIS periodically issues a new Form I-9, and it is a violation to use an out-of-date version.
  • Timeliness. Make sure that your Form I-9s are completed on time. You may complete a Form I-9 as soon as the new hire accepts employment, but you must complete it no later than the third day of employment.
  • Separate files. Keep your Form I-9s in a separate file (not in the personnel file). In the case of an ICE audit, you will have very little time to produce your I-9s. Being able to locate them immediately is critical, as that will give you time to review – and potentially make appropriate corrections (which is permissible) – before turning them over.
  • Re-verify when necessary. Make sure that any employees with temporary work authorization (g., working on a non-immigrant visa or a time-limited Employment Authorization Card) are timely re-verified. A good way to do this is to use a tickler system that provides reminders when re-verifications are due.
  • Pay attention to document retention. Implement a protocol for discarding those Form I-9s that you no longer have to keep. Employers must keep Form I-9s for all current employees. Upon termination (for any reason), an employee’s Form I-9 must be maintained for three years after hire or one year after termination, whichever is longer. Make sure that your Form I-9s are kept for the required period, but have a procedure for discarding those that are no longer needed.
  • Audit. Conduct an internal Form I-9 audit. Having a trained HR professional or other independent third-party review the Form I-9s already on file gives you an opportunity to identify and correct errors and get any missing Form I-9s completed. It’s easier and less stressful—and will be viewed much more favorably by ICE—if you get your Form I-9s in shape before ICE shows up. Be sure to make any necessary corrections transparently and in accordance with ICE’s published guidance.
  • Have a plan. Because you will typically receive only three days’ notice of an ICE Form I-9 investigation, it is essential to have a response plan in place. Identify beforehand the personnel who will communicate with ICE and coordinate the effort to respond to ICE’s inquiries. Being unprepared and making mistakes when ICE comes calling often leads to serious negative consequences.

Well, He Wrote Me a Letter: USCIS Provides Update on Initiatives under the “Buy American and Hire American” Executive OrderIn April 2017, three months after taking office, President Trump signed the “Buy American and Hire American” Executive Order, which confirmed that his administration would be taking a tough stance on business immigration, including the nonimmigrant work visa programs used by many American employers. The Executive Order itself did not put into action any substantive changes, but instead directed the agencies responsible for immigration—including those within the Department of Homeland Security and the Department of Labor—to propose new rules and reforms “to protect the interests of United States workers in the administration of our immigration system…”  It also singled out the H-1B visa program, calling for initiatives designed to ensure that H-1B visas are awarded to only the most-skilled and highest-paid foreign workers.

While the “Buy American and Hire American” Order signaled that big changes were coming to the business immigration landscape, it provided almost no specifics. In the 13 months since, however, the picture has become clearer as the new administration has made a number of important policy changes to comply with the order’s mandate and promised that other changes are on the horizon.

In fact, USCIS Director Lee Francis Cissna recently provided an update on the measures being taken by his agency in its effort to comply with “Buy American and Hire American.” In a letter sent to Sen. Charles Grassley, the Chairman of the Committee on the Judiciary, Director Cissna first outlined a number of important policy changes that have already been implemented by USCIS or are currently in progress. These included:

  • Publishing a policy memorandum designed to clarify the requirements relating to visa petitions filed for H-1B workers who will be employed at one or more third-party worksites. This new policy, issued in February 2018, means that employers will be required to comply with more rigorous documentation requirements and adjudication standards when petitioning for H-1B employees to work at client sites or other offsite locations.
  • Setting up a dedicated email hotline for reporting alleged fraud and abuse in the H-1B system.
  • Conducting more H-1B site visits and targeting H-1B dependent employers to verify that those employers are paying H-1B workers the statutorily-required salary.
  • Expanding USCIS’s site visit program to include L-1B “specialized knowledge” worker petitions, initially focusing on employers who use L-1B workers at offsite locations.
  • Releasing a policy memorandum instructing USCIS officers adjudicating nonimmigrant visa petitions to apply the same level of scrutiny to both initial petitions and extension requests. This memorandum, issued on October 23, 2017, rescinds USCIS’s previous policy which allowed adjudicating officers to give deference to a prior petition approval when adjudicating certain extension requests.

Director Cissna’s letter then laid out several other planned initiatives that will have a significant impact on employers who hire nonimmigrant workers.  These planned changes include:

  • Proposing a new regulation to remove H-4 visa holders (dependent spouses of H-1B workers) from the class of foreign nationals eligible for work authorization. This proposed change, which will require a public notice and comment period, would undo an Obama-era regulation that made certain H-4 visa holders eligible to work.
  • Establishing an electronic registration program for H-1B cap petitions to allow USCIS to better manage the intake and lottery process for H-1B petitions.
  • Implementing regulatory changes to revise the definition of “specialty occupation” for H-1B workers and to make other changes to the H-1B program. Although the specific proposed changes have not yet been announced, it’s a sure bet that these changes will only make it more difficult for employers to successfully sponsor H-1B workers.
  • Drafting a proposed regulation to remove the International Entrepreneur Rule, another Obama-era regulation that was designed to allow certain foreign entrepreneurs to stay in the U.S. to establish and operate start-up businesses.

As these and other developments demonstrate, it’s clear that the Trump administration plans to take a hardline on business immigration. The policy changes that have been implemented or announced thus far are already chipping away at the ability of employers to successfully sponsor foreign nationals for nonimmigrant visas, with certain H-1B employers feeling the greatest impact.

Employers should watch to see how the planned regulatory changes play out and expect that there’ll be more to come. Stay tuned!

Getting a Green Card Just Got Tougher: USCIS Will Now Interview All Employment-Based Adjustment of Status Applicants   The U.S. Citizenship and Immigration Services (USCIS) recently announced a new policy requiring all adjustment of status applicants seeking employment-based green cards to appear for an interview at a USCIS field office. The adjustment of status application is the final step in the green card process for foreign non-immigrant employees looking to move to permanent resident status without leaving the United States.  Prior to this change, which went into effect on October 2, 2017, USCIS required interviews in only 5 to 10 percent of all employment-based adjustment cases.

The new policy applies to all Form I-485 adjustment of status applications filed on or after March 6, 2017, where the underlying immigrant petition is an employment-based Form I-140 (EB-1, EB-2, and EB-3). The USCIS has indicated that adjustment cases filed prior to March 6, 2017, will be adjudicated in accordance with previous procedures.

The USCIS has stated that the new policy is in compliance with President Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and “is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.” Critics, however, have charged that the new policy is not necessary because there is no widespread fraud in employment-based adjustment adjudications and will only serve to delay an already lengthy and complex green card process.

What Does It Mean for Employers?

This change affects all employers who sponsor foreign workers for permanent residency. It is essential that the employer make sure that any worker going through the interview is thoroughly prepared. An employee’s misstep during this final vetting process could totally derail the entire green card case at the very last stage.

In addition, because thousands of extra interviews will be conducted annually, there will almost certainly be additional delays in the processing of these employment-based adjustment applications. In fact, the USCIS has estimated that these applications will ultimately account for approximately 17 percent of the USCIS’s entire field operations workload. And, as resources get shifted around, the change will impact the processing times for other types of USCIS filings, such as family-based adjustment applications and naturalization cases.

What Should the Applicant Expect at the Interview?

The applicant could be asked about almost anything, but the USCIS has specifically stated that the following matters will be probed:

  • Any information provided on the Form I-485.
  • Issues relating to the applicant’s eligibility or admissibility, such as any arrests or misrepresentations made to an immigration officer.
  • The applicant’s entire immigration history, particularly whether the applicant has properly maintained his non-immigrant status.
  • Family members applying as derivative to the employment-based principal applicant should anticipate questions about their relationship to the principal and the bona fides of that relationship.

If the field officer conducting the interview is not satisfied with an applicant’s answers and believes that an applicant is not eligible for adjustment, the Form I-485 will be denied.

Will the Field Officer Re-Adjudicate the Form I-140?

Technically, no. The USCIS has said that the interviewing field officers have been instructed not to re-adjudicate the underlying Form I-140. However, the agency has also made clear that the officers will be charged with assessing the validity of the documents used to approve the Form I-140 petition to ensure that the supporting evidence was accurate and credible. If the officer determines that that evidence is not credible, he can recommend that the Form I-140 be revoked by the service center that originally issued the approval.

For this reason, it is imperative that the applicant thoroughly understand the basis for the Form I-140 petition and be prepared to articulate at the interview how his employment qualified for approval. The applicant should review the Form I-140 petition and any underlying PERM application in advance and address any tricky issues with the employer or counsel. The applicant will almost certainly be questioned about the job for which he was sponsored as well as about his own educational background and work experience. Mistaken or sloppy responses could lead to a disastrous result.

Should the Applicant Have an Attorney?

Applicants are entitled to legal representation at their USCIS interviews, and it is certainly best if they are accompanied by counsel. Although attorneys are typically discouraged from actively participating in the actual interview, they can help limit misunderstandings between the applicant and the interviewing officer and ensure that the process does not go off the rails.

Just as important, an attorney can prepare the applicant on what to expect beforehand and work with the employer and the applicant to make sure that the applicant takes the appropriate documentation to the interview. The interview notices that are currently being sent out are generic and somewhat confusing as they include certain documents that do not even apply in employment-based cases. Having a knowledgeable immigration attorney involved in the interview process can help ensure that the employee’s green card does not get denied at the final hour.