ACC-NCR EMPLOYMENT AND LABOR FORUM Eric S. Bord, Morgan Lewis Jonathan Zimmerman, Morgan Lewis May 23, Morgan, Lewis & Bockius LLP

Transcription

1 ACC-NCR EMPLOYMENT AND LABOR FORUM Eric S. Bord, Morgan Lewis Jonathan Zimmerman, Morgan Lewis May 23, Morgan, Lewis & Bockius LLP

2 2017 Morgan, Lewis & Bockius LLP US IMMIGRATION UNDER THE NEW ADMINISTRATION: MEETING THE CHALLENGES OF A SHIFTING LANDSCAPE Eric S. Bord May 23, 2017

3 Today s Discussion Trump Administration actions impacting business immigration Executive Orders and Policy Directives How the orders and announcements are affecting business immigration H-1Bs and Other Visa Categories Draft Executive Order on foreign worker visa programs and overall impact on business immigration Increasing restrictions on H-1Bs, potential changes to other visa categories, including L and E visas Site Visits Antidiscrimination Current travel environment What are travelers experiencing at US ports of entry? What can/cannot be anticipated? What situations should be avoided? Traveling with electronic devices Visa issuance Extreme Vetting and impact on visa issuance at US consular posts internationally Worksite compliance 3

4 Current Immigration Trends Important to distinguish between politics and policy The President has signed three executive orders dealing with immigration One proposed executive order specifically addressing skilled immigration has yet to be signed and was leaked in January; no action on it since No immigration law or regulation has been overruled or rescinded No action has been taken to limit or restrict business/skilled immigration All of the immigration agencies have taken steps to signal a new activism Focus ostensibly on national security and need to protect US workers This is not new policy; agency agendas have always been about national security and protecting US workers Significance is in the rhetoric and the implicit messages being sent DHS hiring individuals with ties to organizations that have restrictionist views on immigration AG Sessions historically anti-immigration; strong influence on policy Administration recognizing the limits on what it can do unilaterally Making rhetorical and symbolic gestures to political base Empowering a bureaucracy that has strong anti-immigrant currents within its workforce 4

5 EXECUTIVE ORDER OF MARCH 6, 2017 PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES 5

6 March 6 Executive Order Protecting the Nation from Terrorist Attack by Foreign Nationals Revoked January 27 Executive Order; seeks to cure defects in prior order that led to litigation 90-day admission ban for nationals of, or Persons From, Iran, Libya, Somalia, Sudan, Syria, and Yemen who are not US citizens or permanent residents ( Persons From not defined) Iraq removed from original list Admission ban to be in place for 90 days Dual nationals (i.e., nationals of an affected country and a non-affected country e.g., Iran/Canada) are not subject to the admission ban US citizens with dual nationality not affected Persons with valid visas on January 27, 2017 not affected Applications for other immigration benefits (e.g., Forms I-140, I-129, EAD, AP, etc.) not affected Execution of travel ban enjoined by federal courts Refugee program suspended for 120 days Visa Interview Waiver Program restricted; remains in force 6

7 SIGNIFICANT POLICY CHANGES IMPACTING WORK VISA CATEGORIES 7

8 Draft EO #4: Foreign Worker Visa Programs Draft Order, Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs, was circulated in late January Sets the tone and lays the groundwork for future policy, regulatory, and legislative action with respect to business immigration DHS to submit a report within 90 days to review all regulations that allow foreign nationals to work in the United States, determine which of those regulations violate the immigration laws or are otherwise not in the national interest and should be rescinded, and propose for notice and comment a rule to rescind or modify such regulations DHS, State Department, Department of Labor (DOL) to propose regs or make policy changes to restore the integrity of employment-based nonimmigrant worker programs and better protect U.S. and foreign workers affected by these programs Key impact may be in the message it sends to the field: Higher scrutiny of petitions; increased use of RFE and NOID 8

9 Draft EO #4: Foreign Worker Visa Programs Draft order presumes, without citing evidence, that foreign workers are negatively affecting US labor market DHS to review not only H-1B, but also L, E, STEM OPT, and spousal EAD rules (specifically H-4 EAD) Expanded site visits, including L Visas Entrepreneur Parole rule a likely target 9

10 Draft EO #4: L-1 and E Visas L-1 and E Visas are targeted for study L-1A for managers and executives and L-1B for individuals with specialized company knowledge have seen increasingly challenging adjudications in recent years likely to get worse State Department officers at consular posts have historically been more generous in granting L s under a company s blanket Functional managers and specialized knowledge employees generally have an easier time qualifying for L s at consular posts We may see some increased restrictiveness here E Visas Companies already registered as an E company can still expect consular officers to be generally friendly and fair toward applicants E Visas should not be used for lower-level trainees, individuals in early stages of their careers 10

11 Draft EO #4: Green Cards /Lawful Permanent Residence Draft EO #4 calls for Creation of a commission to provide recommended changes to move toward a merit-based immigration system Possible move away from prioritizing family-based reunification Points system? Employment-based immigration currently counts for only about 10% of total yearly immigration; an increase in employment-based immigrant visas might be positive So far not much change in PERM labor market test for green card cases DOL may become tougher as per administration request Green cards for managers will continue to be challenging Definition of manager is very traditional, requires professional or supervisorylevel subordinates Functional manager almost impossible 11

12 Executive Order: Buy American, Hire American Executive Order signed on April 18 Calls on Secretary of State, the Attorney General, the Labor Secretary, and the DHS Secretary to propose new rules and issue new guidance to protect interests of the US workers in administration of the US immigration system, specifically mentioning fraud/abuse prevention Section 5(b) calls upon the cabinet agencies to suggest reforms to the H-1B program such that visas are awarded to the most-skilled or highest-paid petition beneficiaries What exactly is intended by most-skilled or highest-paid remains to be seen Other actions that can be taken administratively Adjust wage scale Increase H-1B fees Additional penalties for fraud and abuse 12

13 Suspension of H-1B Premium Processing USCIS suspended premium processing for all H-1B visa applications, including new applications, transfers, and extensions, for a period of six months, beginning on April 3. Premium processing is a program under which a petition can be adjudicated within 15 calendar days for an additional fee; most employers use premium processing because regular (non-premium) processing of H-1B visas can take 8 to 11 months Timed to impact H-1B lottery as well as all other H-1B filings Rationale for suspension of premium processing was to reduce backlogs Impacts all H-1B petitions filed on or after April 3 May be difficult for certain H-1B holders in the extension process to renew drivers licenses May make travel difficult if new visa is needed to return H-1B portability now a bit riskier 13

14 USCIS Memorandum on H-1B Computer Programmers USCIS memorandum that rescinds an old guidance memo regarding computer programmers with immediate effect. Old memo failed to recognize that an entry-level computer programmer position might require only a two-year (associate s) degree and that such a position would not constitute a specialty occupation Restates that petitioners have burden of proof to demonstrate that an offered position is a specialty occupation Significant footnote Use of a level 1 prevailing wage will likely contradict a claim that a proffered position is particularly complex, specialized or unique compared to other positions within the same occupation Signals a new era of restrictive decision-making in H-1B adjudications USCIS likely to issue more Requests for Evidence to prove specialty occupation, particularly for IT-related positions USCIS attempting to eliminate use of level one wages 14

15 April 4 Coordinated Announcements (USCIS) USCIS announced on April 4 a more targeted approach to H-1B site visits: H-1B dependent employers (generally, employers with 51 or more employees with at least 15% of their workforces composed of H-1B beneficiaries) Employers filing petitions for employees who will be assigned to work at the worksites of different companies Employers whose business information cannot be verified through commercially available data (including, primarily, the Validation Instrument for Business Enterprises (VIBE) tool, which is based on a Dun & Bradstreet database Random site visits will continue to occur All employers should have a protocol in place to deal with H-1B site visits Employers that use outsourcing firms should reach an agreement with such firms as to how to handle a site visit in which USCIS wishes to question an H-1B employee of an outsourcing firm 15

16 FDNS Site Visit Will ask to speak with the human resources manager or the company official who signed the H-1B or L-1 petition. Purpose is to verify: existence of the employer validity of the information the employer provided in the H-1B or L-1 petition, whether the foreign national is working in compliance with the terms of the H-1B or L-1 approval. May ask for pay stubs or W-2s and may ask questions regarding the rate of pay, title, and job duties in order to compare that information with the information reflected in the H-1B or L-1 petition and supporting letter. FDNS may ask to take photographs of the facility to verify its existence, and interview the beneficiary, and supervisors or other personnel to confirm the details of the beneficiary s physical work area, hours, salary, and duties. In most situations, there is no advance notice of a site visit. Site visits typically take less than one hour and often take significantly less time. 16

17 April 4 Coordinated Announcements (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice is now known as the Immigrant and Employee Rights Section (IER). DOJ/IER issued an unprecedented announcement on April 3 warning employers not to discriminate against US workers in hiring H-1B workers. Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division: U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims. While the former OSC has investigated and prosecuted such claims previously, the announcement, which acknowledged that it was timed to coincide with the opening of H-1B cap filing, signals a shift in the focus of that office and encourages US workers who believe they have been the victims of discrimination to come forward and file claims. 17

18 April 4 Coordinated Announcements (DOL) Increase in DOL LCA audits and investigations Seeking legislation to expand investigative authority, which is currently complaint driven 18

19 Other Visas Recent Administrative Appeals Office Decision from DHS, Matter of I Corp., and associated guidance memorandum, state that USCIS cannot grant any employment-based visa where the offered salary, whether paid in the United States or abroad, is lower than minimum required wage under state or federal law, whichever is higher TN (NAFTA visas) Schedule of NAFTA occupations is in need of updating; it is unclear whether changes to NAFTA would be beneficial for TN occupations or create additional restrictions in this category For some years, TN adjudication at the US-Canada border have become more restrictive, requiring a direct match of the applicant s educational background and proposed occupation to those specified in the NAFTA agreement; this will certainly continue or worsen 19

20 VISA ISSUANCE AND ADJUDICATION AT CONSULAR POSTS ABROAD 20

21 Extreme Vetting Along with the March 6 EO, President issued a memorandum calling for extreme vetting Directed Department of State and DHS to implement enhanced screening and vetting protocols and procedures for granting visas, admitting foreign nationals into the United States and granting immigration benefits Cable to all consular posts worldwide reminding consular staff that All visa decisions are national security decisions Consular officers should not hesitate to refuse any case presenting security concerns Number of visa appointments should be reduced Greater discretion in ordering additional security checks beyond regular background checks Additional screening may include addresses and travel history over last 15 years, names of certain relatives, and all phone numbers, addresses, and social media identifiers May be expanded to include ideological questions Will likely cause delays in visa issuance worldwide We are already seeing an increase in administrative processing and delays in obtaining appointments abroad 21

22 THE CURRENT TRAVEL ENVIRONMENT ISSUES AT ENTRY, ANTICIPATING PROBLEMS, TRAVELING WITH ELECTRONIC DEVICES 22

23 Current Travel Environment Heightened scrutiny, CBP exercising its discretion broadly Reports of racial and religious profiling occurring at ports of entry Reports of CBP cancelling Global Entry status and ESTA approval for certain individuals, particularly those of Muslim heritage or with Muslim-sounding names CBP becoming extremely strict about business activities for which they believe work visas are required Turning travelers back who attempt to enter as visitors for activities that CBP may consider work, or activities that may be in a gray area Previously CBP may have admitted the traveler with a warning that the traveler must have the correct visa for the next entry CBP may choose between removing a traveler who does not have the appropriate documents for entry, or allowing the traveler to withdraw request for admission. Removal is a deportation and results in a ban on return Withdrawal of request for admission allows for re-entry with the appropriate paperwork 23

24 Understanding When a Visitor Visa is Not Sufficient Any productive employment performed in the United States that could be undertaken by a US worker is considered work and generally requires a work visa This is true even if the work is only for one day Source of compensation is not determinative B-1 or ESTA for business is generally for business meetings, observation of business operations, conferences, and the like There are narrow exceptions for short term professional assignments where compensation will continue to be paid abroad (B-1 in lieu of H-1B, increasingly disfavored) B-1 in lieu of H-3 for trainees still possible, but hands-on employment is limited J-1 is appropriate for hands-on learning for interns and trainees Be conservative in the current environment 24

25 Foreign National Travel to the United States No need to postpone or avoid international travel if not foreign national of one of the six countries Be ready for delays in visa applications and on arrival in United States secondary inspection. Make sure to have valid passport, visa stamp, Form I-797, and letter confirming employment Secondary inspection if foreign national of one of six countries or have visited these countries Prohibition on laptops/ipads/tablets if traveling to United States from Casablanca, Istanbul, Cairo, Amman, Jeddah, Riyadh, Kuwait, Doha, Abu Dhabi, or Dubai (UK has similar ban) Dual nationals should be prepared to travel into the United States on passport from the non-restricted country Holders of multiple passports should present the passport that invites the least scrutiny Good idea to have pocket letter if concerned that CBP may view activities as work Travelers should have appropriate contact information in their carry-ons in case of delays or detention. Expect that social media accounts will be reviewed and scrutinized 25

26 Green Card Holders and US Citizens Lawful permanent residents should ensure that their passports and green cards are valid; any lengthy absence abroad warrants a re-entry permit to facilitate return to the United States. Lawful permanent residents should carry their green cards with them. US citizens should be aware that CBP may ask them for certain personal information. US citizens are not required to provide ID except to CBP during the normal customs and immigration inspection. US citizens do not have to answer questions about political or religious affiliation at entry. 26

27 Traveling with Electronic Devices CBP may request passwords to cell phones, laptops, and other devices from any traveler, including US citizens. Fourth Amendment rights during CBP inspection are limited. US citizens who refuse to provide passwords at entry may be delayed; foreign nationals who refuse may be turned around. To the extent possible, travel with a clean device or no device. If passwords are provided, change them immediately after entry. 27

28 TRIP Complaints Any unduly harsh or inappropriate comments and/or treatment at entry may be brought to the attention of the port director for that port of entry and/or reported in the CBP s TRIP system TRIP = Traveler Redress Inquiry Program 28

29 The take-aways... The environment around travel and immigration to the United States has become highly restrictive in a very short period. Applicants should expect to be questioned closely about all aspects of their visa applications. Applicants may be required to provide detailed information about their addresses and travel history over last 15 years, names of certain relatives, all phone numbers, addresses and social media identifiers used in the last five years. Applicants should be prepared for the possibility of extra background and security checks, commonly known as administrative processing. These can add days or weeks to the process. New processes and limits on visa interviews will likely lead to longer waits for interview appointments and longer waits for passports with visas to be returned after the interview. Business visits to the United States should be approached more carefully and deliberately Applications and petitions for work visas must be well prepared, and eligibility for the category should be extremely well documented, to avoid requests for evidence and denials. Companies that are eligible should explore blanket L and E Visa registration for the transfer of key employees. New hires of foreign nationals, such a foreign students to H-1B status, will be increasingly challenging. 29

30 The take-aways... Increased scrutiny of H-1B and other work visa petitions Increased scrutiny at port-of-entry inspection Increased frequency of FDNS site visits and State Department antifraud investigations Increased scrutiny of H-1B petitions suing level 1 wages Increased petition adjudication times Increase in investigative activity Worksite Wage and hour Visa applicant vetting Port-of-entry inspection Increase in RFE and NOID activity, even on previously approved cases Continuing need for adjustment and adaptation to changing adjudicatory environment at all relevant agencies 30

31 2017 Morgan, Lewis & Bockius LLP HEALTHCARE REFORM UPDATE Jonathan Zimmerman ACC-NCR Employment and Labor Forum May 23, 2017

32 Affordable Care Act (ACA) Refresher Individual Mandate Most individuals must purchase insurance or pay a penalty Employer Mandate Applicable large employers (ALEs) must offer minimum essential coverage (MEC) to at least 95% of full-time employees (FTEs), or pay a $2,000 penalty for each FTE (including employees to whom coverage is offered) Even if above penalty does not apply, ALEs must offer coverage that is affordable and provides minimum value, or pay a $3,000 penalty for each FTE that obtains subsidized exchange coverage Health Insurance Marketplaces Some states established their own exchanges; others use the federal exchange Premiums have been rising, and some insurers have stopped offering coverage Medicaid Expansion Expands Medicaid eligibility to individuals earning up to 133% of federal poverty line Some states declined expansion 32

33 American Health Care Act (AHCA) Status Passed by full House May 4 (with one vote to spare) Expect consolidated bill language and Committee Report Has become difficult to track changes on top of changes on top of changes. Goes to Senate Parliamentarian must review whether the bill can be passed through budget reconciliation process (meaning no filibuster) all changes must have a federal budget impact Inevitable revisions, if not total replacement Politics harder, margins narrower in Senate Could die in Senate Goes back to House to approve Senate changes Could die if second House vote on Senate changes is unsuccessful 33

34 AHCA What Changes? Eliminates the individual and employer mandates Reduces 2016 tax rates for both mandates to $0 Late enrollment penalties for people who do not stay covered 2017 repeal of PCORI, Reinsurance, Risk Corridors, Risk Adjustment, Credit Recapture, over-the-counter drug prohibition, FSA $ cap, HSA 20% penalty (reduced to 10%), Device Tax, Health Insurance Tax, reinstates deduction of Medicare Part D reimbursement 2020 repeal of ACA Premium Credits, Cost Sharing Subsidies, etc. Premium credits replaced with flat, refundable credits adjusted for age 2023 repeal of ACA Medicare Tax Increase 2026 effective date for Cadillac Tax (if ever) Significant expansion of HSAs Larger annual limits Smaller penalties for using HSA assets for non-qualified expenses Broader definition of qualifying expenses Does not contain a cap on tax-free employer health insurance 34

35 AHCA What Stays? Requirement to offer dependent coverage through age 26 Reporting (adds to it starting in 2020 and likely revives HIPAA creditable coverage reporting related to preexisting condition changes to House bill) Requirement to cover preventive care with no cost sharing (note Executive Order regarding Religious Freedom) Essential Health Benefit (EHB) rules unless state seeks waiver in 2020 or beyond Prohibition on lifetime/annual $ limits (unless benchmark state seeks EHB waiver) Requirement to issue Summary of Benefits and Coverage (SBCs) Some of these requirements could be scaled back or eliminated through regulatory action 35

36 What Do We Do If the AHCA Passes? Prepare for repeal of employer and individual mandates: Change eligibility rules back to traditional full-time definition? Drop least expensive plan and/or abandon affordability-based premiums? Abandon PEO contracting efforts focused on employer mandate? Communicate broader HRA/FSA rules (if not done in 2017): Eliminate or increase FSA contribution limits Recognize use of HRA/FSA for over-the-counter drugs Communicate higher HSA contribution limits, additional HSA flexibility Abandon EGWP and go back to traditional Retiree Part D subsidy (since it will again be deductible)? Begin to think about, in 2020, whether some workers are better off under House tax credit, and do not offer them employer group health coverage? Will Medicaid changes impact your population? 36

37 What Happens If the AHCA Does Not Pass? Administration has broad administrative authority to weaken the ACA Day 1 Executive Order to minimize the unwarranted economic and regulatory burdens of the ACA Possible responses: Eliminate or reduce cost-sharing subsidies Decline to enforce individual mandate Relax essential health benefits requirements Grant state waivers for experimentation or innovation Require employment for Medicaid eligibility Devote fewer resources to advertising and implementation of annual enrollment 37

38 Responding to Marketplace Notices Marketplace notice informs employers that they may owe a shared responsibility penalty Only the IRS can assess penalties, and we are not aware of any penalties assessed to date Employers will have an opportunity to respond to any IRS assessments Sent to address provided by the employee Notices may go to multiple locations To minimize risk of missing a notice, complete the Employer Coverage Tool and include the desired address Reasons to appeal Ensures two bites at the apple to avoid liability Employees less likely to owe penalties upon repayment of subsidy May avoid a worker classification audit Reasons not to appeal Notice may be accurate (e.g., employee is part-time, or was not offered coverage) Employer may not be an Applicable Large Employer subject to mandate May not be clear whether coverage is affordable Failure to appeal marketplace notice does not prejudice an appeal to IRS IRS may never assess this tax 38

39 Eric S. Bord Eric S. Bord counsels clients on corporate immigration issues involving the recruitment, hiring, transfer, and retention of personnel worldwide. He also advises businesses on compliance and risk management in connection with their global immigration programs. This includes counseling on compliance with I-9 and E- Verify rules, advising clients during immigration investigations, and conducting immigration due diligence for corporate transactions. Eric heads Morgan Lewis s immigration compliance and risk management practice. Eric S. Bord Partner Washington, DC T eric.bord@morganlewis.com 39

40 Jonathan Zimmerman Jonathan Zimmerman helps clients design and maintain all types of employee benefit plans and programs. His practice focuses on Internal Revenue Code and Employee Retirement Income Security Act (ERISA) compliance for retirement, health and welfare, and executive compensation plans. He has particular experience with Code Sections 409A, 162(m), and 280G, and with taxes and fees arising under the Affordable Care Act (ACA). Jonathan also devotes a large part of his practice to payroll, withholding, and fringe benefits matters. He works with clients of all sizes and routinely handles matters Jonathan Zimmerman ranging from large transactions to day-to-day administrative Partner questions. Washington, DC T jonathan.zimmerman@morganlewis.com 40

41 APPENDIX 41

42 Business Visitor Limitations Permissible business visitor activities include: engaging in commercial transactions that do not involve gainful employment in the United States; negotiating contracts, typically for products or services manufactured or delivered abroad; consulting with business associates; litigating; short-term training not involving productive labor or compensation; participating in scientific, educational, professional, or business conventions, conferences or seminars; or undertaking independent research. 42

43 Business Visitor Limitations Situations that may suggest work include: an individual US office or workstation; the presence in the United States of individuals whom the person directly supervises or manages; engaging in activities directly related to generating revenue for or otherwise directly benefiting a US entity; visiting clients on a billable basis; receiving any wages or salary from a US source; or a pending or approved work visa petition (e.g., H-1B, E, L-1). 43

44 Asking About Immigration Upfront Ask the safe questions, and only the safe questions, preferably on an application. The following language is acceptable if asked of all applicants: Are you legally authorized to work in the United States? Yes No Will you now or in the future require the company s sponsorship for an immigration-related employment benefit (e.g., H-1B, TN, etc.)? Yes No Hiring decisions based on an applicant s need for immigration sponsorship are not considered discriminatory, provided that the policy is not applied in an inherently discriminatory manner (sponsorship only of certain nationalities). 44

45 Contingent Offer of Employment General Make all offers of employment contingent upon the applicant s ability to satisfy the employment eligibility verification requirements. Sample Policy: All offers of employment with [INSERT COMPANY] are contingent upon the employment applicant s ability to provide, within three business days of hire, evidence of identity and employment authorization acceptable for I-9 purposes under federal law. Therefore, all offers of employment regardless of the applicant s nationality should contain the following language: This offer of employment is contingent upon your ability to provide acceptable original evidence of identity and work authorization within three business days of hire, in conformance with Form I-9 requirements. 45

46 Contingent Offer of Employment Visa Offers that involve nonimmigrant visa sponsorships should be made contingent on successfully obtaining the required employment authorization. Sample Policy: Where [INSERT COMPANY] determines that it will seek nonimmigrant work authorization on behalf of an employment candidate, the offer of employment must be contingent upon the company s ability to obtain the temporary work visa allowing for the employment. Therefore, any written offer provided to an employment candidate for whom [INSERT COMPANY] will pursue nonimmigrant employment authorization should contain the following language: This offer of employment is contingent upon [INSERT COMPANY] s ability, after efforts that COMPANY deems to be reasonable, to secure appropriate work authorization on your behalf. COMPANY cannot and does not make any promises or representations as to the outcome of such efforts. COMPANY s decision to undertake any such efforts may be modified or revoked at any time in COMPANY s unilateral discretion. 46

47 Sponsored Employment Remains At-Will Offers that involve nonimmigrant visa sponsorship should not be inadvertently modified as a result of language included in an employer s immigration petition. Sample Policy: Where [INSERT COMPANY] determines that it will seek nonimmigrant work authorization on behalf of an employment candidate, no documents prepared in connection with the preparation or filing of a petition or application for an immigration benefit shall modify the underlying nature of the employment relationship. In particular, nothing in a document created in the preparation or filing of a petition or application for an immigration benefit shall alter the at-will nature of the employee s employment, nor may it be relied upon by the employee as a contract or modification of the at-will nature of the employment. Useful to include similar language in petition letters of support. 47

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