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.

About one year ago, President Trump signed the “Buy American Hire American” (BAHA) Executive Order to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  Under the auspices of BAHA, the U.S. immigration landscape has seen many changes in rules, policies, and operations in the past year.  Below, are some of the key changes as well as anecdotal trends we’ve noticed so far.

• There has been an increase in sharing of information between the Department of State, the Department of Labor, and the Department of Justice designed to combat and prevent immigration fraud. This is in line with the Administration’s goal to continue to streamline existing and new processes in the immigration system.
• President Trump has mentioned a need to revamp the H-1B visa category. As such, USCIS has made available two email addresses, one for the H-1B category and the other for the H-2B category, encouraging anyone to report allegations of fraud.  This will likely lead to an increase in reports of alleged fraud (primarily by disgruntled ex-employees) and resulting investigations.  Due to the active information sharing between agencies, a case that begins with the U.S. Department of Homeland Security could lead to a second investigation started by another agency, such as the DOL, who could initiate a wage and hour investigation.
• Pursuant to BAHA, there will be an increase in employer site visits to confirm H and L visa related jobs. USCIS has indicated it may expand the scope of their visits to include L-1B Specialized Knowledge petitions.  To start out, USCIS will focus on L-1B employees who will spend much of their time off-site at third-party client sites.
• USCIS has been offering a wider variety of reports and data about work visas to the public in the interest of providing more transparency to U.S. workers.
• In just one year, USCIS has issued five separate Policy Memoranda related to the H-1, L-1, and TN visa categories.
• Regarding I-9 enforcement, more employers are expected to get a visit from the government for an audit of their Forms I-9. While anecdotal evidence does not yet point to a big surge in the number of audits this year, smaller companies are being targeted just as often as big companies.  Historically, the government tended to go after the bigger companies; however, a growing number of small- to medium-sized companies have reported being visited by the government within the last year.  This underscores that every employer is fair game, and should have a solid, compliant I-9 procedure in place before the government visits.
• Anecdotal evidence also suggests an uptick in investigations coming out of the Immigrant and Employee Rights Section (IER), which investigates alleged unlawful discriminatory practices by employers. Note that once again small companies seem to be just as likely to be selected for an investigation.  Additionally, the IER appears to be focusing its investigations on claims of employer practices that seem to prefer certain categories of foreign workers over U.S. workers (e.g., H-2B workers).  Further, they are continuing to go after employers who have a high percentage of List A documents being presented by their employees during the I-9 process.  They receive this information through the E-Verify monitoring unit and have continued to actively pursue these cases.

Hopefully, all these changes and trends make clear that now is a good time to review your company’s immigration practices and procedures and get them in order, especially if you have foreign national workers with U.S. work visas.  Even if your company does not routinely hire foreign nationals, you are still subject to immigration laws that you must comply with, most notably the ones relating to the Form I-9.  Taking a proactive stance and consulting with a legal professional on what should be reviewed and put in order now is critical to avoiding bigger issues down the road.

Last year, we heard the federal government announce that it would increase the number of raids and site inspections to ensure businesses were going through the proper procedures to hire employment-authorized workers.  Well, we are beginning to see the government live up to its word.

On January 10, Immigration Customs and Enforcement (ICE) agents visited 98 7-Eleven stores in 17 states and in Washington, D.C. in search of undocumented workers and employers who hired them.  The raid ended with 21 arrests, the largest operation against a single employer since January 2017 when President Trump took office.  Then, just a few weeks later, ICE visited 77 businesses in northern California, serving Notices of Inspection that typically give employers 3 days to comply with their document requests.  A raid of this scale devoted to a single region is also unprecedented.

ICE has always been in the business of conducting raids such as these to catch individuals who are in the U.S. without proper status (and therefore has no authorization to work for a U.S. employer).  But after ramping up the scale of their activities, ICE has been in the limelight more recently.  Some experts posit that the goal of these large-scale raids at places of employment is to discourage undocumented workers from showing up to work.  Whereas previously ICE agents typically arrested undocumented workers at their residences, ICE is shifting its focus to place greater pressure on employers who hire such workers.  Indeed, ICE Deputy Director Thomas D. Homan stated following the 7-Eleven raids that this was to “send a strong message to U.S. businesses that hire and employ an illegal workforce.  ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  This year, ICE is planning to increase worksite enforcement actions by 4 to 5 times.

Northern California became a regional target due to its reputation for protecting immigrants from the reaches of the government.  But in other places throughout the United States, it seems that there is no particular industry or size of business that ICE is making their priority.  Also, since the agencies enforcing employer compliance have increased their staff by about 4 times, the chances of being audited are greater than before.

It is critically important that businesses take proactive steps to do an internal review/audit of their records before they are visited by ICE (this is because remedying I-9 errors to the extent possible before an audit can reduce the amount and degree of fines).

For starters, ensure that an I-9 Employment Eligibility Verification form is completed for every employee following an offer and acceptance of employment. Even if you completed an I-9 for an employee but it ends up going missing, that is the same as if an I-9 was never completed (and that’s a serious violation).   Then, conduct an internal audit of the Forms I-9 with the help of an experienced immigration attorney.  The earlier you examine and assess where your violations lie and identify ways to avoid those violations in the future, the sooner you will begin to eliminate perpetual I-9 errors and thereby reduce the overall penalties should you be faced with an I-9 audit.

An immigration attorney with I-9 experience can also advise you of the difference between certain I-9 violations.  While some errors are considered technical and can be corrected, some are substantive and cannot be remedied after the fact.  Being able to identify what the substantive violations are and taking proper actions to avoid repeating errors in the future is vitally important to demonstrating that the employer has made a good faith effort to comply with the rules.

Lastly, train your workforce so they know how to respond when a government agent pays you a visit.  For example, employees who will be the first to interact with them need to know what information to obtain, and where to direct them.  The designated point of contact needs to know things such as whether the company wants their attorney to handle the situation, where the Forms I-9 are kept, and whether there are any laws or regulations that need to be complied with before any forms are handed over to the government.  An unprepared workforce might be more susceptible to acquiescing to an officer’s request prematurely, and other inadvertent mistakes can be committed to the detriment of the employer.