Last month, the Trump Administration announced plans to end President Obama’s Deferred Action for Childhood Arrivals (“DACA”) program. This change in policy is sure to have a significant impact on employers.

First, a little background on DACA. Beginning in the 1990s, illegal immigration from Central and South America changed. Illegal immigrants used to consist of predominantly working-age men who crossed the border to go to work, then returned at the end of the day. This changed when more and more families crossed illegally to settle permanently in hopes of finding a better life here in the United States. This change meant that millions of children who grew up here but were brought here illegally were vulnerable to deportation due to a choice their parents made for them. It is very difficult to obtain legal status after coming here illegally. So, these millions of childhood arrivals could potentially be forced to return to a country of which they have no recollection without some sort of protection.

In response, President Obama authorized DACA to provide that protection. Immigrants who came to the U.S. before 2007, who were under 15 years old at the time they came and were younger than 31 in 2012 were permitted to apply for DACA protection. To receive protection from deportation, they had to have a nearly spotless criminal record and either be enrolled in high school or have a high school diploma or equivalent. DACA’s protection lasted two years, but could be renewed. In total, roughly 800,000 out of an estimated 1.3 million immigrants have obtained DACA protection. Part of this protection included authorization to work.

With the ending of DACA, employers will bear some of the cost of abiding by new regulations (or lack thereof). Many of the largest employers in the country have hired the so-called Dreamers – individuals working and living under DACA’s protections. Apple’s CEO, Tim Cook, claims they have 250 employed at the tech giant. It is estimated that 91% of Dreamers are employed. So, with DACA gone, roughly 720,000 employees will become ineligible to remain employed overnight. The cost of replacing these employers is staggering. One think tank estimates it will cost employers $6.3 billion in turnover costs.

Fortunately for employers, the Trump administration announced it will delay ending DACA by six months. It is possible that during that time Congress will enact a law affording the same or similar protections allowing those same individuals to remain and stay employed. Therefore, employers do not need to start terminating their Dreamers right away. However, now is the time to create an action plan so that you are prepared if Congress is unable to reach and enact a solution. Employee turnover is costly and disruptive; abrupt and significant turnover is even more so. Smart employers will be prepared.

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

Late last year, the U.S. Citizenship and Immigration Service (USCIS) issued its Final Rule amending certain regulations related to employment-based immigrant and nonimmigrant visa programs.  USCIS’s effort is intended to benefit both U.S. employers and foreign workers participating in these programs by “streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs.”  The changes contained in the Final Rule go into effect on January 17, 2017, so employers with foreign workers (or employers who are considering hiring foreign workers) need to understand the implications of these changes and be prepared. Continue Reading Important Changes for High-Skilled Nonimmigrant Workers – and Their Employers — Coming January 17, 2017

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

Department of Homeland Security (DHS) has recently announced its new entrepreneur program in which it is hoping to attract entrepreneurs from around the world to enter the U.S. and start U.S. businesses. Historically, that required either:

(1) Taking advantage of an existing E-1 or E-2 treaty between the investor’s country of citizenship (or perhaps multiple citizenships) and the U.S. leaving out the great majority of countries in the world and therefore citizens of those countries; or

(2) Investing at least one million dollars in the EB-5 program (though it could be reduced to $500,000 in high unemployment or rural areas). Continue Reading A Business Immigration Practitioner’s Take on the New Entrepreneur Program and Recent Trends

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

The United States Citizenship and Immigration Services (the “USCIS”) recently released the new Eligibility Verification Form, Form I-9 (Rev. 03/08/13), as well as a revised Handbook for Employers (M-274).  The revised form is longer—two pages, rather than one—and includes additional instructions for completing the form.  It also includes new fields for e-mail address, phone number, and foreign passport numbers in Section 1 of the Form. Continue Reading New Form I-9 Released—Deadline of May 8, 2013