Last week, I attended the annual American Immigration Lawyers Association Conference in San Francisco with 3,500+ others from all over the country (and some from outside the U.S.). The consensus from the conference reiterated that the immigration landscape is shifting rapidly, and employers must adapt to those significant changes. Here are some of the most notable changes:
Imputing constructive knowledge to employers
The government is conducting more site visits, audits, and raids to go after undocumented workers and employers who hire them. Sometimes, an employer may not have actual knowledge that an employee does not have proper authorization to work, but the government can argue that the employer had constructive or implied knowledge, defined as “knowledge that one using reasonable care or diligence should have, and which therefore is attributed to it by law.” A recent record-breaking case offers a notable example. A landscaping company was fined $95 million in civil and criminal penalties for ongoing employment of unauthorized workers, among other violations. The company thought it could escape liability if just the lower-level foremen had knowledge that some of their workers had no proper work authorization. The government did not buy that argument. So, employers who, using reasonable care or diligence, should know that there are employees in their workforce without proper work authorization, will not likely escape liability by explaining that they did not actually know what was going on.
The trickle-down effect of the Buy American, Hire American (BAHA) Executive Order
The BAHA Order has had an all-around, profound impact on the immigration landscape, and employers may see changes in the following areas:
- Employees in H-1B status. The Immigration Service will no longer give deference to previously approved H-1B petitions, meaning any extensions or amended petitions will be reviewed as brand new, initial filings. At the same time, the Service has been issuing more Requests for Evidence as well as denials (a huge 17% increase in denials last year). As a result, instead of routine and rather “simple” extensions of an individual’s H-1B status, employers can expect an uphill battle in obtaining approvals, especially with certain entry-level positions.
- H-1B employees’ spouses with H-4 work permit cards (EAD’s). The Service will likely get rid of the work permit currently available to certain H-4 spouses. If you have anyone working with an H-4 EAD, they will soon need to find an alternative source of work authorization (but you cannot terminate them now for that reason!). The exact timeline on when this will take effect is unclear, but it could be as early as later this year.
- NAFTA (North American Free Trade Agreement) might be going away. Soon. NAFTA has made it relatively easy for Canadian citizens with qualifying credentials to obtain work authorization in the U.S. in TN status, but based on recent events, this might not be an option much longer for employers. As with H-4 EAD’s, now might be a good time for employers to consider other ways to keep current TN employees, especially for prospective employees you might want to keep long-term.
- Increasing pushback on Employers who have H-1B employees at end-user client sites. The Immigration Service has released a policy memo creating more hurdles to jump through to obtain an H-1B approval for an employee who will be stationed at a third-party site. Moreover, the validity period of your H-1B employee will be limited to the end date of an existing Statement of Work or other similar agreement you will need to submit with the petition. Whereas the Service used to approve such extensions for up to 3 years (presuming the employee had 3 years or more left on their H-1B status), the Service is no longer being that generous. So, an employer may be required to file extensions more frequently (meaning more legal and filing fees). Obtaining a SOW for a three-year period between you and the end-user client would be the surest way to obtain the maximum possible period on these extension filings.
- Increasing H-1B denials on various job occupation codes. Various computer-related occupation codes have been met with extreme skepticism by the Service, requiring more proof than ever before that the position offered to the foreign national employee is indeed a specialty occupation level position requiring a minimum of a bachelor’s degree. Computer Systems Analyst, Computer Programmer, as well as Software Developer codes have been hardest hit. Pushback on business-related codes are also on the rise, and the Market Research Analyst code continues to be met with resistance by the Service.
Questions about any of the above changes or others on the horizon? Contact immigration counsel right away. These changes are very real and already very much affecting employers.