Yane McKenzie

Subscribe to Yane McKenzie's Posts

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.

One of President Trump’s chief agenda items has been immigration enforcement.  While the President’s intent may be to keep out terrorists, remove undocumented foreign nationals, and eliminate fraudulent visa practices, these efforts can also have a tremendous impact on U.S. employers.  One of the ways this administration has ramped up its immigration enforcement efforts has been through an increase in I-9 Employment Eligibility Verification Form audits to ensure companies and organizations are engaging in fair, non-discriminatory hiring practices and only hiring individuals who have proper work authorization.

While the Form I-9 requirement originates from Section 274A of the Immigration and Nationality Act, all employers are required by law to complete and retain a Form I-9 for each employee, regardless of the employee’s immigration status in the U.S.  So, even a company or organization with only U.S. citizen employees is not necessarily safe from a government-conducted site visit.  For instance, the Immigrant and Employee Rights (IER) Section of the Department of Justice exists to investigate 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) allegations of unlawful  retaliation or intimidation.  Note that discrimination can be consider action both for or against U.S. workers or workers of a particular national origin, so if the IER receives a complaint about your company’s hiring or employment practices regardless of who it supposedly helps or harms, it can open a case against your company and investigate the allegation(s) made.  Even if your company has not engaged in prohibited discriminatory practices, your company could still face severe penalties and fines for documentation/paperwork violations that may be found in such an investigation.

In the event that your company is selected for an audit and you have never inspected your Forms I-9 with an experienced counsel, it is possible that there will be numerous I-9 violations per form. These violations can be either civil or criminal.  For example, in a recent I-9 case settlement, a national Chinese fast-food chain was fined $400,000 in civil penalties and was ordered to pay $200,000 in back wages for its unlawful practices.  One of its primary violations was carrying on the practice of re-verifying lawful permanent residents when their green cards expired.  In another case, a Florida staffing company was ordered to pay a fine of $120,000 for requiring non-U.S. citizens to present specific documents, among other violations.  Without proper training in completing the Form I-9, it is not difficult to make sixty-plus violations per form—the average number of I-9 violations a government officer finds on a single I-9 form!

When the government is assessing monetary fines, one of the mitigating factors considered is good faith on the part of the employer.  By proactively taking the first step to have an experienced counsel review your company’s Forms I-9 and making adjustments and corrections before the government pays your company a visit, you may be able to significantly reduce the amount of total fines or even avoid any penalties altogether.

By now, you have undoubtedly heard about the current administration’s plan to build a wall along the U.S.-Mexico border, and about the proposed travel ban against foreign nationals from certain countries (which continues to be vigorously contested in court). Most recently, U.S. Citizenship & Immigration Services (USCIS or the Immigration Service) announced its plan to combat fraud and abuse in the H-1B Visa Program.  The H-1B Visa is a highly popular nonimmigrant visa available to foreign nationals who are being offered a “specialty occupation” position as defined by immigration statutes and regulations.  The Immigration Service has a unit dedicated to preventing fraudulent use of this visa.  (If your company has ever filed an H-1B petition on behalf of an employee, you may recall paying a $500 fraud prevention fee – that fee is used to fund the Immigration Service’s site visits, interviews, and investigations).  Continue Reading Immigration Service to Increase H-1B Site Visits to Combat Fraud and Abuse

As we approach the filing deadline for FY 2018 H-1B cap petitions, there are a couple of updates of which you need to be aware.

First, U.S. Citizenship & Immigration Services (USCIS) has just announced that starting April 3, 2017, it will temporarily suspend premium processing for all H-1B petitions. Continue Reading Two Immigration Law Updates: Premium Processing for H-1B Temporarily Suspended, and New <em>Handbook for Employers</em> Issued

Last month, we wrote about the new I-9 Form employers must use for all employees starting January 22, 2017.  Today, our Immigration attorneys issued an Advisory to offer some additional guidance and clarification for employers in transitioning from the old I-9 Form to this new Form, and addressing some questions that may come up related to the Form and the use of E-Verify to confirm an employee’s legal status to work in the United States.  This Advisory is based on some information just provided by the American Immigration Lawyer’s Association’s Verification and Documentation Liaison Committee, and our Immigration experts wisely wanted to pass along the advice right away. Continue Reading Update on New I-9 Form and Important Advisory

The most current version of the I-9 form is now available (www.uscis.gov) and employers must use only this version beginning on January 22, 2017.  Some of the key changes to the form include the following:

  • Section 1 – Now asks for “other last names used” rather than “other names used”
  • The addition of prompts to ensure information is entered correctly
  • The ability to enter multiple preparers and translators
  • A dedicated area for including additional information rather than having to add it in the margins
  • A supplemental page for the preparer/translator

Continue Reading The New I-9 Form Is Now Available

Listen up, employers:  On August 1 — that’s two days ago! — the Department of Homeland Security increased the Form I-9 violation fines by approximately 96%.  Specifically, the range of fines for violations went from $110-$1,100 per Form I-9 to $216 -$2,156 per Form I-9.  This could be particularly problematic for larger companies, as an untrained staff person completing numerous I-9s incorrectly can lead to an exorbitant amount in fines.  On the other hand, smaller companies have less in volume but sometimes they can commit more substantive errors which can lead to fines on the higher-side of the range.  Both are bad results that your business should want to avoid. Continue Reading I-9 Violation Fines Increased!

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 (“Form I-9”), and depending on the size of your company’s workforce, you might complete new I-9s on a regular basis.  But have you ever gone back to do an internal audit of the already completed Forms I-9?  Do you know the most common mistakes found on I-9s? Continue Reading Conducting an Internal Audit of Your Company’s I-9 Forms