Immigration Law

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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 The USCIS periodically issues a new Form I-9, and it is a violation to use an out-of-date version.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!

Trump’s Travel Ban Survives Latest Trip to the Supreme CourtNews organizations this week are reporting again on President Trump’s so-called travel ban. But what exactly does that mean? We receive a lot of questions about the travel ban in the context of President Trump’s overall stance on immigration issues and how the travel ban affects visas and possible future employment of citizens from other countries. We will discuss in this post a little bit of the ban’s history and who it affects. As for the legal developments on the ban this week, the administration did receive some good news (for a change), but it ain’t over ‘til it’s over.

What Is the Travel Ban?

You may recall that during his campaign President Trump promised restrictions on travel into the United States from certain countries. This was to be part of the new administration’s attempt to combat terrorism. After assuming office, President Trump issued a travel ban by executive order almost immediately. Opposition groups attacked that executive order legally on multiple constitutional and statutory grounds. Subsequently, the administration issued two more versions of the travel ban, assumably to give the executive order a better chance of surviving legal challenges. We are now on the third version of this executive order. Our team blogged about some of the immigration aspects of the original and subsequent executive orders, including here.

The third and latest ban was issued just this past September. The current ban includes restrictions on travel into this country from Chad, Iran, Libya, North Korea, Somalia, Syria, Yemen, and by certain government officials from Venezuela. The basis for the administration’s ban is to restrict travel from countries with a significant terrorist presence that do not have adequate identity management or information sharing.

Why Was the Travel Ban Challenged?

The travel ban, in all versions, has been challenged primarily on establishment of religious grounds. The challenges assert that the travel ban targets countries on the basis of the predominant religion in those countries. Specifically, the ban has been labeled a Muslim ban by some groups.

Actions by the Lower Federal Courts

The latest version of the travel ban was challenged by lawsuits in Hawaii and in Maryland. Federal district judges in both locations immediately enjoined the ban from taking effect until the lawsuits could be finally resolved, and of course the administration filed appeals. The appeal in Hawaii was to the federal Ninth Circuit Court of Appeals in San Francisco, and the Maryland appeal was to the federal Fourth Circuit Court of Appeals in Richmond.

Neither the Ninth nor the Fourth Circuit have yet ruled finally on the issues in the cases. However, relevant to what happened this week, the temporary injunctions that previously had been entered in both cases preventing the implementation of the ban until the courts finally ruled remained in effect during the appeals. In other words, the bottom line was that, rather than allowing the ban to take effect during the legal-challenge procedure, the ban was suspended during the challenge process.

Enter SCOTUS

This week, the Supreme Court of the United States, in a separate order for each case, ruled that the ban could not be halted during the legal-challenge process. So now, rather than the ban being on the sideline during the lawsuit and appeal process, it goes into effect immediately.

These events this week are important for at least a couple of reasons. First, the U.S. now has an actual travel ban, not just a possible one in the future. Second, the Supreme Court may be indicating how it might rule on the ultimate issue of whether the travel ban as currently written is legal. Certainly the Supreme Court will be ruling again soon “on the merits” after the Fourth and Ninth Circuits decide the legal issues before them. Again, the next time the Supreme Court speaks, it likely will be on the true legality of the travel ban and not just the temporary postponement of it. So, it ain’t over ‘til it’s over.

We will continue to post on President Trump’s executive orders and their impact on immigration compliance.