ICE Capades: Worksite Immigration Enforcement SurgesWorksite enforcement actions related to unauthorized workers are on the rise. Fulfilling a promise from 2017, Homeland Security Investigations (HSI), the investigatory arm of U.S. Immigration and Customs Enforcement (ICE), has significantly ramped up its efforts to clamp down on the employment of unauthorized workers. ICE’s recently released statistics for Fiscal Year (FY) 2018 show a dramatic surge in the number of worksite enforcement actions carried out by HSI. According to HSI Associate Director Derek N. Benner, this trend is intended to:

“protect jobs for U.S. citizens and others who are lawfully employed, reduce the incentive of illegal migration, eliminate unfair competitive advantages for companies that hire an illegal workforce, and ultimately help strengthen public safety and national security.”

According to ICE, in FY 2018, HSI quadrupled its worksite investigations (6,848 in FY 2018 versus 1,691 in FY 2017) and its Form I-9 audits (5,981 in FY 2018 as compared to 1,360 in FY 2017). In addition, HSI made 779 criminal and 1,525 administrative worksite-related arrests in FY 2018, compared to 139 and 172, respectively, the previous year. This reflects an increase of between 300 and 750 percent in these statistical categories.

Employers should not expect this trend to change any time soon. The Trump administration views reducing illegal employment as a critical part of its broader hardline immigration policy and is clearly committed to vigorous enforcement. The time for employers to make sure their immigration compliance practices are in order is now.

So, What Can You Do?

There are a number of measures that an employer can take to reduce its potential exposure in the event it finds itself in ICE’s crosshairs:

  • Make sure your Form I-9s are completed timely and correctly. Check your current protocols to ensure that these forms are being processed properly when new employees are hired. If ICE initiates an investigation at your place of business, having good Form I-9s will go a long way in reducing potential exposure.
  • Provide comprehensive training to the company representatives who are responsible for completing your Form I-9s. Completing these forms correctly is not rocket science, but knowing how to do it properly takes training.
  • As we have said before, conduct an internal audit of your existing Form I-9s or have an independent third party do it for you. If your Form I-9s are missing or contain errors, there are steps you can take to improve your lot. Do this sooner rather than later. Once ICE shows up, you’re probably out of time.
  • Be prepared in the event of a Form I-9 audit or other ICE investigation. It’s critical to know in advance who at the company is responsible for dealing with ICE officials. No employer is exempt from the possibility of a visit from ICE. Having a well-devised contingency plan is key.
  • Attend our firm’s Breakfast with Bradley Seminar on March 14. We will be hosting this event in six of our offices—Birmingham, Charlotte, Huntsville, Jackson, Montgomery and Nashville. One of the topics, which I’ll cover, is “Immigration Compliance for Employers in Today’s Enforcement Environment.” I’ll discuss ICE’s new enforcement priorities and provide tips on how employers can stay compliant with their immigration-related obligations. Look for the invitation – we hope to see you there.

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!