Immigration Compliance and Enforcement Trends: What Employers Need to Know

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Leo Lynch
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1 Immigration Compliance and Enforcement Trends: What Employers Need to Know

workers End DACA Renegotiate NAFTA (may affect the TN visa for Mexican/Canadian professionals)

2 A Change of Seasons Two Overall Policy Goals of the Administration 1. Reduce Immigration Reform work visa programs to protect U.S. workers End DACA Renegotiate NAFTA (may affect the TN visa for Mexican/Canadian professionals) Extreme vetting more scrutiny which is likely to increase processing times 2. Increase Enforcement More audits, site visits & raids Higher penalties and fines Mandatory E-Verify

3 Predicting the Weather Change How quickly can the immigration system change? Changes through executive action Dismantling of executive orders and enforcement priorities (immediate) Issuance of agency directives and guidance memoranda (immediate) Withdrawal from NAFTA (6 months) Changes through formal rulemaking Amending or repealing of regulations (6-18 months) Changes through Congressional action Statutory changes require a bill to pass both the House and Senate, and to be signed into law by President Some executive action requires Congress to appropriate funding

Downpour of Executive Orders Series of Presidential Executive Orders in 2017 Alone: January 25: Hiring of 10,000 more immigration officers January 27: Building the Wall and hiring of 5,000 more

4 Downpour of Executive Orders Series of Presidential Executive Orders in 2017 Alone: January 25: Hiring of 10,000 more immigration officers January 27: Building the Wall and hiring of 5,000 more Border Patrol agents March 6: A new travel ban Partially blocked by the courts Bona fide relationship with a U.S. person or entity April 18: Buy American, Hire American EO alone cannot change the main elements of the H-1B program Administration must go through Congress for recruitment and higher wage requirements April 29: Renegotiating trade agreements Impact on TN visa category? June 21: Eliminates requirement that 80% of nonimmigrant visa applicants be interviewed within 3 weeks

5 Severe Weather Alert: Prepare for Audits & Raids Top Priority for the Administration is Enforcement For employers, this means : More I-9 Audits Paperwork inspection of forms I-9 by ICE/HSI Recent increase of fines - $216-2,156 per form New I-9 form effective September 18, 2017 Criminal prosecution possible for knowingly employing undocumented workers Possible audits of Public Access Files for Labor Condition Applications Prevailing wage compliance Employment relationships with third-party vendors More Site Visits for Certain Employers H-1B, L-1 and OPT/STEM F-1 Students Looking for visa fraud/abuse Increase in raids looking for unauthorized workers

New Developments in Employment Authorization and the I-9 Process New Smart Form I-9 Revised Form released on July 17, 2017 Must be used for all new hires as of September 18, 2017 Enhanced

6 New Developments in Employment Authorization and the I-9 Process New Smart Form I-9 Revised Form released on July 17, 2017 Must be used for all new hires as of September 18, 2017 Enhanced with error-checking alerts and built-in instructions These alerts do not create any safe harbor protections Can be completed on computer, on paper, or combination; must be signed and dated by hand

7 Form I-9 Instructions Drop-down choices

8 Form I-9, Section 1

9 Section 1 Changes USCIS replaced Other Names Used with Other Last Names Used avoid discrimination issues Clarifies that foreign nationals authorized to work must enter: A#/USCIS OR I-94 Number OR Foreign passport number and country of issuance New: affirmative obligation to attest whether a preparer or translator was used to complete the Form New: employees must enter N/A for any blank space in Section 1 except SSN

10 Section 2 Changes New: Citizenship/Immigration status field Example: enter a 1 for a U.S. citizen New: N/A for blank fields New: additional information block Clarification on employer attestation fields

11 Section 2: Employer Certification First day of employment still hard to spot! Can t use smart features with preprinted forms

12 Section 3 Changes: Reverification If the employee has changed their name since completing Section 1, you must only enter the part of the name that has changed If the employee has not changed their name, enter N/A in each field

13 Practical Tips for the Smart I-9 Form Do not rely solely on the smart features Signature and date fields must still be completed by hand Limited birthdate checking Forms will not always automatically complete fields that require N/A responses

14 Automatic EAD Extensions Certain EADs can be automatically extended for up to 180 days Extension filed prior to expiration of current EAD (except for TPS holders) Eligibility category on the face of the EAD is the same as the category on the I-797 receipt notice for the EAD extension

15 I-9s for Automatic EAD Extensions Review the expired EAD and Form I-797 receipt notice to confirm that: The application was filed prior to expiration The eligibility code is valid The eligibility code is the same as the prior EAD Don t forget to set reverification reminders! For new hires: Employee will put the automatically extended date in Section 1 as the date of employment authorization expiration Employer will enter the automatically extended date in Section 2 as the date of employment authorization For current employees: Employer should draw a line through the old expiration date in Section 2 Employer should write EAD EXT in the Additional Information box Employer should initial and date the edit

16 DACA and Related I-9 Issues Protects certain undocumented immigrants brought to the U.S. as children from deportation and provides for work authorization Over 800,000 individuals covered by the program September 5, 2017: DHS releases Memorandum announcing end of the DACA program effective March 5, 2018 President has asked Congress to replace the program with new legislation Key Dates: September 5, 2017: DHS stopped accepting new DACA applications October 5, 2017: Last date to apply for DACA renewal if expires between September 5, 2017 and March 5, 2018 This is employee s responsibility, not employer s

17 What It Means for Employers Memorandum does not specifically rescind or revoke previously-granted EADs Employees can continue working on valid EADs until they expire Prior to EAD expiration date, employers must reverify I-9 in accordance with normal reverification process Ensure you have a reminder system in place for reverifying expiring I-9 work authorization documents Cannot require a specific document for I-9 reverification purposes Some employees may have obtained alternative status/work authorization by EAD expiration date

18 Do s and Don ts Don t reverify before EAD expiration date Don t take adverse employment action because EAD expires in the future Don t continue employing if new work authorization document cannot be presented at time of I-9 reverification Do contact counsel before taking any adverse employment action Do stay alert for updates from MEA about further DHS guidance

19 1. Keep flawless I-9s and audit regularly (contact an expert when in doubt). 2. Choose an I-9 captain to oversee the I-9 process. 3. Make sure all I-9s are completely timely, and in person (do not verify documents via fax or scan). 4. Never ask for specific documents to support I Be consistent retention policy, photocopies of supporting documents, etc. 6. Create an I-9 tickler system to remind you of upcoming expiration dates. 7. Review Company s I-9 and E-Verify policy. 8. Keep I-9 files separate and apart from personnel files. 9. Purge, purge, purge! Follow the 3 year/1 year rule. 10.Have a response plan in place for ICE audits/raids!

Final Takeaways Review immigration policies and procedures Ensure HR personnel are properly trained Be mindful of unfair immigration-related employment practices (such as over-documentation) Follow

20 Final Takeaways Review immigration policies and procedures Ensure HR personnel are properly trained Be mindful of unfair immigration-related employment practices (such as over-documentation) Follow the immigration developments, but don t blindly believe the news check with professionals when in doubt! Addressing employee s anxieties Information Sharing & Communication Know Your Rights Efforts by the company Honesty Support

21 Disclaimer The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

22 Thank You!

Feige M. Grundman, Esq. Feige M. Grundman is a Senior Associate in Klasko s Philadelphia office. Feige's practice has focused exclusively on immigration and nationality law since 2006.

matters. A graduate of the University of Pittsburgh School of Law (J.D. 2005), Feige received her undergraduate degree, with Honors, from Carnegie Mellon University (B.S. 2000).

23 Feige M. Grundman, Esq. Feige M. Grundman is a Senior Associate in Klasko s Philadelphia office. Feige's practice has focused exclusively on immigration and nationality law since Her practice includes the representation of leading universities, hospitals, Fortune 500, multinational, and private companies with high volume employment based non-immigrant and immigrant visa matters. A graduate of the University of Pittsburgh School of Law (J.D. 2005), Feige received her undergraduate degree, with Honors, from Carnegie Mellon University (B.S. 2000). Feige is an active member of the American Immigration Lawyers Association and is admitted to practice law in Pennsylvania, New Jersey and Florida. Christopher R. Thorn, Esq. Christopher R. Thorn is the Chair of Buchanan Ingersoll s Immigration Practice Group and a Shareholder in its Philadelphia office. Christopher s practice focuses on employment-based immigration matters. Prior to joining the firm in 2005, he worked as an immigration specialist for a market research firm in the Philadelphia area. This client-side experience gives him a unique perspective in the course of his practice. A graduate of the Fordham School of Law (J.D. 2002), Christopher received his undergraduate degree from the University of Virginia (B.A. 1999).

Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance

Skeletons in the Closet: Dusting Off Form I 9 & E Verify Compliance July 10, 2014 Avalyn C. Langemeier 713.625.9232 alangemeier@fosterquan.com Susan K. McConn 832.426.0315 smcconn@fosterquan.com Disclaimer