If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

Effective January 1, 2018, AB-450, which was signed into law by Governor Jerry Brown on October 5, 2017, imposes the following requirements on public and private employers in California:

  • Except as otherwise required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified
  • Except as required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order, subject to a specified exception
  • Requires an employer to provide current employees notice containing specified information, by posting in the language the employer normally uses to communicate employment information, of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving the federal notice of inspection
  • Requires an employer, upon reasonable request, to provide an affected employee* a copy of the notice of inspection of I-9 Employment Eligibility Verification forms.
  • Prohibits the reverification of the employment eligibility of a current employee, except when required by federal law

Violations of each of the above provisions will subject employers to civil penalties ranging from $2,000 up $5,000 for a first violation and $5,000 to $10,000 for subsequent violations.

Employers in California should make sure to have in place an internal I-9 compliance policy and that employees who are responsible for administering the program and those who are the employers’ first points of contact to the general public are trained on AB-450’s new requirements.

* Employee identified by the immigration agency’s inspection results to be an employee who may lack work authorization or whose documentation has deficiencies.

This week, Tom Homan, acting Director of the Immigration and Customs Enforcement (ICE), announced that he has instructed Homeland Security Investigations (HSI), the investigative branch of ICE, to quadruple the number of worksite inspections.  Danielle Bennett, spokeswoman for the agency, confirmed this directive and added “ICE’s worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves.”

What does this mean for U.S. employers? This means that employers should expect to see increased HSI visits during which HSI will conduct not only I-9 audits to ensure that employers are complying with established employment eligibility verification requirements, but also other investigations related to compliance with immigration and labor regulations.

Continue Reading Employers Should Take the Necessary Steps to Prepare for Increased Worksite Inspections

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment Eligibility:

  1. The Consular Report of Birth Abroad (Form FS-240) is now acceptable and is included on the drop-down menus in “smart” Form I-9 and in E-Verify.
  2. All certifications of report of birth that are issued by the U.S. Department of State (Forms FS-545, DS-1350 and FS-240) are now listed at #2 of List C.
  3. List C documents are now renumbered, except the Social Security card; for example, the EAD is now at #7 instead of #8

USCIS plans to update its “Handbook for Employers: Guidance for Completing Form I-9” (Form M-274) to include these revisions in the near future.  Additional information is available at What’s New | USCIS.

On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.”  For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use.  Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.

Continue Reading USCIS Rescinds Old Guidance on H-1B Computer Programmers and Announces Targeted Scrutiny of IT Contractors

The USCIS released its updated Handbook for Employers, which is available as a free download here.  The Handbook is a great resource for human resources personnel involved in the I-9 identity/work eligibility/reverification process.  Part Seven (FAQs) and Part Eight (acceptable documents) are especially helpful sections of the Handbook.

The President’s Executive Order, commonly called the “travel ban”, has raised many questions.  We answer the most frequently asked questions below, and will update them as additional information becomes available.

I am from one of the named countries and am outside of the United States.  Can I apply for a nonimmigrant (temporary) or immigrant (permanent) visa at a US consulate?

On January 27, 2017, the U.S. Department of State (DOS) provisionally revoked most valid nonimmigrant and immigrant visas issued to nationals from the seven countries subject to the travel ban. Certain diplomatic and other visa categories are exempt from this action. This move was largely symbolic since individuals subject to the travel ban are not permitted to enter the United States. However, if and when the travel ban is lifted, individuals from the listed countries would most likely need to reapply to a U.S. consulate abroad for a new visa before they could travel to the United States.

Continue Reading Travel Ban FAQs

United States Citizenship and Immigration Services (“USCIS”) released the new version of Form I-9 today, a week earlier than previously announced. As a reminder, all U.S. employers are required to use the new version by January 22, 2017, to verify the employment eligibility of new hires and to reverify continued employment eligibility of employees, when necessary.  Employers may continue to use the version dated 03/08/2013, through January 21, 2017.

Continue Reading USCIS releases revised Form I-9, Employment Eligibility Verification

Donald Trump’s statements about the U.S. immigration system were a main feature of his presidential campaign. Now that he has been elected, many are questioning whether and how those statements might become actual policies. We have already begun fielding questions from clients asking how new policies, regulations and laws will affect their businesses, their employees, their families, and themselves.

Continue Reading What Businesses Can Expect from Trump’s Immigration Agenda

On November 22, 2016, the United States Citizenship and Immigration Services (“USCIS”) will publish a revised Form I-9, Employment Eligibility Verification.  Employers must use the revised Form I-9 by January 22, 2017, but may continue to use the current Form I-9, dated 03/08/2013, through January 21, 2017.  We will post an update as soon as the revised Form I-9 is published.