“Immigration Compliance For Employers: Lessons From 2017”
Law360 12/07/17 Maria F. Kallmeyer, Emily C. Shircel
2017 is coming to a close without congressional immigration reform, yet employers have experienced significant changes this year. So what happened? Although the core legal framework has not changed, U.S. immigration programs are under new management. Much like when a corporation gets a new CEO, the priorities have changed while the core business is the same. This new management is now responsible for managing the programs and interpreting the rules. This article will explore the changes we've seen so far, how they impact employers and what we anticipate the business immigration landscape will look like in 2018.
Upon taking office in January of 2017, President Donald Trump was quick to make good on his campaign promises regarding immigration policy with a series of executive orders and proclamations. With the exception of the immediate impact of the first travel ban executive order, the orders were prospective. They laid out a framework for the new administration's policies and priorities, a window into how the immigration programs might be managed going forward. They also ordered several of the agencies that touch immigration to review the existing programs in place, and suggest changes that further the new list of priorities.
The Travel Ban Executive Orders
2017 saw three executive orders/proclamations that restricted travel into the U.S. for foreign nationals from certain countries. Federal court rulings quickly ended the immediate impact of these orders, but the policies remain and the fight continues. In fact, just this week, the U.S. Supreme Court allowed the third version of the travel ban to go into effect while legal challenges make their way through the appellate process. Foreign nationals attempting to apply for a new visa with passports from the following countries: Libya, Iran, Somalia, Syria, Yemen, Chad, North Korea and Venezuela can expect extreme scrutiny and a complete ban in some cases. This third proclamation includes specific restrictions that are different for each country listed. The administration also continues to review the intelligence that other countries provide the U.S. about their nationals, and will continue to suggest changes to the admission and visa review process.
Interior Enforcement Executive Order
On Jan. 25, 2017, the president issued the executive order, "Enhancing Public Safety in the Interior of the United States," which asked immigration agencies to review options for prioritizing the removal of unauthorized immigrants, and enforcing existing immigration laws.
"Buy American, Hire American" Executive Order
The "Buy American, Hire American" executive order was issued on April 18, 2017. It was also prospective and short, but clearly outlined the administration's goal of managing U.S. immigration programs with a priority toward protecting U.S. workers and preventing fraud within the current immigration system.
In short, the Trump administration came into office and very quickly outlined goals for the agencies that exist, at least in part, to facilitate programs for foreign nationals. Those agencies have new management and new directives, but it is important to remember that the directives are carried out on a daily basis by thousands of individual people who may also interpret the directives in their own way.
Looking ahead, we can now more clearly anticipate what the immigration landscape will look like in 2018. Here are the top changes employers should look out for.
1. Increase in Agency Investigations: Government agencies are methodically increasing investigations to ensure compliance with the priorities outlined in the executive orders. Employers should anticipate the same trend in 2018.
In October of 2017, the acting U.S. Immigration and Customs Enforcement director indicated that he has instructed the Homeland Security Investigations (HSI) unit, the investigative unit of Immigration and Customs Enforcement, to significantly increase, potentially quadruple, the number of worksite enforcement actions over the next year. They are expected to target employers who fail to comply with I-9 employment eligibility verification requirements, and to also arrest unauthorized workers who are found as a part of the investigations, a coordination that has not happened in the past.
Employers should also look out for an increase in investigations from the U.S. Department of Justice, the U.S. Department of Labor, Wage and Hour Division, and the U.S. Department of State. Each of these agencies manage some aspect of U.S. immigration policy, and it's likely that they'll increase their investigations with a priority toward protecting the economic interests of American workers and ensuring current immigration programs are not abused. To prepare, employers should perform internal audits to ensure internal files are in compliance with all federal hiring laws, especially Form I-9 employment eligibility verification requirements.
2. Increase in Site Visits: On Oct. 20, 2017, the Department of Homeland Security Office of the Inspector General issued a report summarizing its evaluation of United States Citizenship and Immigration Service's Administrative Site Visit and Verification Program (ASVVP). Under the current program, immigration officers make unannounced visits to collect information as part of a compliance review of H-1B and other visa petitions that employers have filed. The October report concluded that the current ASVVP provides “minimal assurance that H-1B visa participants are compliant and not engaged in fraudulent activity.” It went on to recommend that USCIS enhance site visit activity, reallocate resources within the ASVVP, and develop a more comprehensive policy agency-wide to ensure effective site visits and action. As a result, we have witnessed an increase in site visits for contractors working at third-party work sites. We anticipate USCIS will continue to change and enhance this site visit program to prioritize fraud review and the protection of U.S. workers.
3. Heightened Scrutiny on Petitions and Applications Filed with USCIS: USCIS is aggressively applying the president's executive order to "Buy American, Hire American." Perhaps this is where the business immigration world is most feeling the change in immigration policies and practice to date. Cases that were easily approved in the past, and filed in compliance with the current regulations, are now highly scrutinized. There has been a significant increase in requests for evidence issued in response to petitions filed, particularly for H-1B and L-1 petitions. Employers should take care to set realistic expectations for business stakeholders regarding timelines and processing times, as well as the level of scrutiny each petition may endure.
4. Overhaul of the H-1B Program: The "Buy American, Hire American" executive order specifically called upon the relevant secretaries to "suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries." USCIS indicates that it is currently working on rulemaking changes, new policy memoranda and operational changes, all geared toward protecting the economic interests of U.S. workers and preventing fraud. Employers already experienced the operational changes with this past year's H-1B cap petitions. Specifically, USCIS more highly scrutinized H-1B petitions in two specific areas: (1) whether a position truly required a bachelor's degree in a specific and related field, and (2) whether a position receiving a Level 1 wage under the Department of Labor's prevailing wage guidance truly qualifies as a "specialty occupation." It is clear by this increase in scrutiny over wage levels and the specialized nature of the position that USCIS is attempting to review these petitions under the president's proposed standard without congressional or public input.
In 2018, we should expect to see much of the same level of scrutiny and a potential overhaul of the H-1B program. Employers should be educated on the information listed in the labor condition application (LCA) that is an integral part of the H-1B petition. Employers also need to be aware of the impact of salary levels and occupational codes selected as part of the process.
5. New Employment-Based Green Card Interviews: As a direct result of Trump's March 6, 2017, executive order, effective Oct. 1, 2017, USCIS reinstated the interview requirement for all employment-based green card applications. USCIS had previously employed a longstanding policy of waiving these interviews, recognizing that these applicants posed little security risk, and the interview process is a significant drain on limited government resources.
The policy moving forward requires all employment-based green card applicants to attend a scheduled interview at a local USCIS office, rather than having their case processed at a national service center. Applicants should be prepared to discuss the basis of their immigrant petition, as well as issues of admissibility. In 2018, this program will be in full swing, but the local offices have not received an increase in resources. We expect this to significantly increase the processing times for employment-based green card applications. Employers should carefully consider the impact of this new timeline on the management of their foreign national employees.
6. Usage of New Technology: For many years, the government has been developing a biometric exit system. U.S. Customs and Border Protection (CBP) is currently piloting a facial recognition program to help them track when individuals are leaving the U.S. CBP is also developing an application to allow travelers to "order" their I-94 electronically on the plane for the officer to verify when they go through inspection on the way into the U.S. Hopefully, this new technology will improve I-94 accuracy, but it will also require employees to be very aware and clear on what their individual legally authorized length of stay should be.
7. Disappearance of Immigration Programs: On Sept. 5, 2017, the president announced the Deferred Action for Childhood Arrivals (DACA) program would be discontinued, but encouraged Congress to legislate a solution. Unless Congress does act, those with work authorization pursuant to DACA will run out of work authorization on a rolling basis.
Temporary protected status, or TPS, is another program that provides temporary relief from removal for foreign nationals who would not be safe returning to their home country because of a natural disaster or armed conflict. TPS needs to be renewed every year and half for each designated country, based on the conditions in each country. Over the last several months, the TPS designations for several countries have been left to expire.
There is no question that the end of these programs is catastrophic for the individual people involved as it will result in the loss of work authorization for hundreds of thousands of individuals who previously had authorization to work. Employers on the other hand, are left with the enforcement responsibility. Employers should review their I-9 compliance programs to ensure they are only employing individuals with valid work authorization and monitoring when that authorization may end.
8. Extreme Vetting: Although there has always been intense vetting in the modern visa issuance program, the 2017 executive orders have called for "extreme vetting." Outside of the travel ban orders themselves, international travelers in general have experienced heightened scrutiny as mandated by the president to the Department of State in connection with the "extreme vetting" policy and have felt the substantive delays in visa processing across the globe. Department of State cables to the consulate posts around the world included instructions to perform social media checks, to identify certain groups that should receive extra scrutiny, and also recommended limiting interviews to 120 per day per officer. Trump also rescinded an Obama-era goal to ensure 80 percent of nonimmigrant visa applications were interviewed within three weeks of receipt of application.
We can expect this to continue in 2018 as consulate officers continue to increase scrutiny. Employers will need to further counsel employees on visa interview preparation. Additionally, applicants should schedule visa stamping interviews as early in one's trip as possible to ensure any administrative delays will not negatively impact the foreign national's ability to travel home to the U.S. and resume employment.
Changes are happening at a rapid pace, and the administration's intent regarding immigration policy is clear. So can business leaders rely on foreign talent? Yes, but they should be smarter about it. Employers should prioritize hiring highly qualified, hard-to-get, foreign talent, while also being careful to manage their existing immigration programs thoroughly and in compliance with the federal law. Congress has passed laws governing how the influx of immigrants will be managed, but the executive branch is responsible for that management. Our immigration programs are clearly under new management, and employers will need to keep a close eye on those management changes in 2018. However, it is important not to forget that the existing laws are still in place and the U.S. is governed by the rule of law, so changes that aren't in compliance with the existing legal framework can and will be challenged.