Corporate Counsel June 21, 2018

Transcription

1 2018 Updates and Insights on Recent Employment-Based Immigration Changes Clete P. Samson Recent Changes for Employees With TPS TPS immigration program that allows FN to remain in U.S. after catastrophic event happened in their home countries (natural disaster, war, epidemic). TPS program has been routinely extended for close to 20 years. Most TPS beneficiaries have been in the U.S. for 20 years or more, arrived as children, and have U.S. children. Five leading industries that are most reliant on workers with TPS: Construction (51,700), food and restaurants (32,400), landscaping or nursery (15,800), child care (10,000), grocery stores (9,200), Trump Administration recently ended TPS protections for immigrants from six countries. Nepal (9,000), El Salvador (200,000), Haiti (50,000), Honduras (57,000), Sudan (1,000), Nicaragua (5,300) TPS recipients who aren t eligible for other relief will lose their ability to work in U.S. on the effective date of the termination. Review Form I 9s to determine work authorization dates. Check TPS termination dates. Current Status for Employees With DACA DACA Deferred Action for Childhood Arrivals. Program currently provides work authorization and protection from deportation to 800,000 individuals. DACA Code on EAD = C33. Trump Administration s attempt to end DACA program in September 2017 met with resistance in the form of numerous lawsuits. January 2018 Federal District Judge in San Francisco stays decision to end DACA (based on flawed legal premise) and forces DHS to continue to accept DACA renewal applications (but not new applications). DC and NY courts also blocked attempt to end DACA. DC court gave DHS 90 days to come up with legal rationale for ending DACA. DHS is still accepting DACA renewal applications, but not new applications. If DACA status expired on or after Sept. 5, 2016, employee can file a renewal request. Important for employers to advise employees with DACA that renewal applications should be filed as soon as possible because of current uncertainty. 1

2 Recent Surge in Worksite Enforcement From Oct. 1, 2017 through May 4, 2018 ICE HSI opened 3,510 worksite investigations; initiated 2,282 I 9 audits; and made 594 criminal and 610 administrative worksite related arrests. By comparison, for fiscal year 2017 (October 2016 to September 2017) HSI opened 1,716 worksite investigations; initiated 1,360 I 9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement. Outgoing ICE Director Thomas Homan has repeatedly stated: Worksite Enforcement Actions will increase by four to five times. Homan also stated: "Not only are we going to prosecute the employers that hire illegal workers, we're going to detain and remove the illegal alien workers." Certain Industries Must be Prepared History of Worksite Enforcement Immigration Reform and Control Act of 1986 (IRCA) made it unlawful to knowingly hire or continue to employ an unauthorized alien, and required all employers to examine documents from new hires to verify identity and work authorization. Created the I 9 requirement and employer sanctions. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) further defined what documents are acceptable for employers to review to verify identity and employment authorization. 2

3 ICE s Worksite Enforcement Strategy Criminal prosecutions Egregious worksite violators Administrative processes to encourage compliance Form I 9 inspections Designed to protect and target critical infrastructure sectors Form I-9 Audits and Related Violations Civil / Administrative Knowing hire of unauthorized aliens Knowingly continued employment of unauthorized aliens Verification violators Knowing Hire of Unauthorized Aliens INA Knowingly Hiring Unauthorized Aliens. INA 274A(a)(1)(A). Employer has an affirmative defense if it complied in good faith with INA 274A(b) examined documents and properly completed the Form I 9. ICE s burden to prove the employer had actual or constructive knowledge of the alien s unauthorized status at the time of hire. The Code of Federal Regulations defines knowing as including not only actual knowledge but also knowledge that fairly may be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Ex. Employee sworn statements. 3

4 Knowingly Continued Employment Knowingly Continued Employment of an Unauthorized Alien. INA 274A(a)(2). No affirmative defense. Examples of employers acquiring knowledge of the alien s unauthorized status includes: expired EADs, non action in response to Notice of Suspect Document letter, non action in response to Social Security No Match Letters, etc. Child Support collection, tax issues, individual correspondence or calls, anonymous tips. Civil Penalties for Knowingly Employing Unauthorized Workers, Document Fraud and Discrimination Offense Penalty *** 1st Level $539 $4,313 2nd Level $4,313 $10,781 3rd Level $6,469 $21,563 *** Fine amounts effective August 1, 2016 Form I-9 Paperwork Violations Form violations = $216 $2,156*** Violation percentage Technical vs. Substantive Enhancement matrix *** Fine amounts effective August 1,

5 Pre-Inspection Tips Pre employment inquiries: Less is more. Employer should limit information it obtains before actual hiring regarding citizenship status or national origin. Permissible Inquiries (OSC). Are you authorized to work in the U.S.? Impermissible Inquiries. Are you a U.S. citizen? I 9 Problems duty to investigate suspicious circumstances. An employer is not expected to be an expert, but if an employer has constructive knowledge that an employee is unauthorized to work, it must engage in further inquiry. Form I-9 Retention Duration: Length of employment plus 1 year, or 3 years (whichever is later) Use of separate files Production for inspection Re verification Auditing Privacy Purging Use 3 separate files Current Employees no re verification required Terminated Employees Employees with expiring work authorization verification required What to Expect When Audited by ICE Process ICE serves a Notice of Inspection (NOI) upon the employer 3 business days notice. Upon 3 days prior notice employers are required to make Forms I 9 available for inspection. All current employees. All employees from the previous 3 years. All employees terminated within the last year. No subpoena or warrant is required but administrative subpoenas are often included with an NOI requesting further documentation. After receipt of the I 9s, ICE agents and auditors conduct a Form I 9 audit. 5

6 What to Expect During an Audit Notice of Suspect Documents Employee determined unauthorized. Notice of Discrepancies HSI unable to determine authorization or identity. What to Expect During an Audit (cont.) Notice of Technical Procedural Failures Errors HSI identifies as correctible. 10 business days to correct. Not fined if corrected, but fineable if not timely corrected. What to Expect From an Audit Final Actions Warning Notice. Notice of Intent to Fine. Notice of Compliance this is our goal! 6

7 Best Practices During an Audit Cooperate, cooperate, cooperate. Negotiation on Scope of Audit. We will review requested I 9 forms and conduct an aggressive selfaudit before we submit to ICE. Compile requested documentation. Copy all submitted forms and documents. We will have three business days to respond. Best Practices Before an Audit Train personnel on best practices for preparing Form I 9s. Perform annual internal self audits. Ask questions of your immigration counsel on any issues that come up during I 9 completion. Best Practices for Completion Completion by / before first day. Accept only the documents needed. Photocopy employee documents used to meet Form I 9 requirements. Calendar notification system for re verifications and destruction. Annual Internal Audit. 7

8 Raid Response Plans Designate one ICE point person per shift. Determine potential impact if employees are pulled off jobs where is company most vulnerable to financial impact. Develop ICE Response Phone Tree. Know pre raid signals. Know the difference between raids with or without criminal search warrants. Know how to handle media inquiries. Develop Post Raid Procedures for contacting employee family members and monitoring impact on your business. Non-Immigrant Visa Overview F 1 Student visas Occupational Practical Training (OPT) 12 months (24 Mo. STEM extension). Granted to apply for H 1B. H 1B Bachelor s Level Workers Subject to Prevailing Wage. Capped at 65,000/85,000 per year (demand over 300,000). L 1 Foreign Affiliate Transfers Not subject to Prevailing Wage. Qualifying Relationship. Requires proprietary skill or management experience. H-1B Process Overview LCA Posting Attestations Wage Levels Public access file Petition Forms (G 28, I 129) LCA Company Letter of Support Supporting Documentation Requests for Evidence 8

9 Developments in the H-1B Program Higher scrutiny for bachelor degree requirement Changes to DOL Handbook (Computer Programmer). Increased Requests for Evidence for Systems Analysts. Higher scrutiny of Level 1 wage selection Software Developer as substitute for Computer Programmer. L-1 Process Overview Establish qualifying relationship with foreign affiliate. Identify whether employee manages a process or people, or possesses specialized knowledge. Specialized knowledge should be proprietary to foreign affiliate, and should be special in some way compared to similar American employees. Standard is really, why can t an American do this job. Petition. Requests for Evidence. Developments in the L-1B Program Requests for Evidence Explanation of why individual is unique in company and in industry. Comparison to similar employees, with credentials. Breakdown of job duties. Percentage of time. Which require specialized knowledge. Differentiation for off site employees. 9

10 Proposed Changes to Visa Programs April 18, 2017 Executive Order: Buy American and Hire American No changes to visa program. Requests studies and regulation changes to protect American workers. Likely reform to H 1B CAP lottery, and prevailing wage requirements. H 1B and L 1 Visa Reform Act of 2017 High Skilled Integrity and Fairness Act of 2017 Protect and Grow American Jobs Act H-1B and L-1 Visa Reform Act of 2017 Status Senate Referred to Senate Judiciary Committee January 20. House Referred to Subcommittee on Immigration and Border Security March 16. H 1B Revisions Prevailing wage changes to be at least Level 2 or national median wage. Replace CAP lottery with preference system. US Masters in STEM field > Level 4 Wage > US Masters in non STEM > Level 3 wage > Etc.... Reduce validity from 6 to 3 years. L 1 Revisions Outsourcing limited to 1 year. Make subject to Prevailing Wage. Make definition of specialized knowledge more stringent. High-Skilled Integrity and Fairness Act of 2017 Status House Referred to Subcommittee on Immigration and Border Security February 8. Green Card Revisions Changes per country allocation of Green Cards More to China and India. Permits time at employer to satisfy PERM requirements. F 1 visa holders can apply for a Green Card. H 1B Revisions Increases the number of companies that have to perform recruitment. Eliminates Level 1 Prevailing Wage. Replaces CAP Lottery with wage based preference system (200% of Level 3 First Preference). Do not need to amend with location changes. 10

11 Protect and Grow American Jobs Act Status House Referred to Subcommittee on Immigration and Border Security January 13, House Judiciary Committee approved revised version of bill on November 15, 2017 and referred to House Floor. Not expected to become law. H 1B Revisions Employer deemed H 1B dependent if 20% or more of workforce in H 1B status (up from 15%). H 1B dependent employers required to submit recruitment report. Changes exemptions in LCA attestation from $60,000 to $90,000 plus. Practical effect is increasing the number of H 1B Dependent employers that must conduct recruitment. Probable Changes Current policy changes to scrutinize low wages and degree requirements. Restructuring prevailing wage requirements to disincentivize H 1B dependent employers. Adding a preference system to replace H 1B Cap lottery. Adjustment to per country Green Card allocation. Recommendations for Success H 1B Petition Level 2 wage jobs at a minimum. Identify potential alternative job codes. L 1 Provide comparative support for similar employees. Include presentations and papers written by employee. 11