Five Immigration To-Do’s for Employers in 2018

by Davis Wright Tremaine LLP
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Davis Wright Tremaine LLP

The White House and Department of Homeland Security have announced plans to change the legal immigration system in ways that could significantly impact employers with foreign workers who are managers, executives, professionals, specialists, and valued employees. Here is our advice designed to help employers prepare for five key issues:

  • Plan for H-1B lottery cap filing, with more scrutiny on job duties and wages.
  • Identify which workers have DACA, TPS, or H-4 employment authorization documents (EADs), and plan for renewals where possible or alternatives.
  • Do internal I-9 audits and make necessary corrections to I-9 forms to avoid potential civil fines; use E-Verify to verify work authorization.
  • Anticipate immigration compliance site visits, particularly for H-1B, H-2A and H-2B, and L-1 employers.
  • Anticipate USCIS interviews of employees and their family before approval of employer-sponsored green card applications.

Increased I-9 Compliance Audits

Employers who are in compliance with all other immigration rules still may have I-9 deficiencies. Immigration and Customs Enforcement (ICE) and its sister agency, Homeland Security Investigations (HSI), have announced increased enforcement, including quadrupling I-9 audits and investigations. For example, ICE launched a highly publicized enforcement action on January 10, 2018, against 7-Eleven stores nationwide. 

Employers should perform I-9 self-audits to identify and correct errors, assure completeness and accuracy of records, and brush up on processes and procedures, can help avoid fines and penalties. Use of E-Verify also may help to ensure valid employment authorization of the workforce.

H-1B Lottery and Processing Changes

A number of H-1B processing changes have been proposed and implemented, but the lottery likely will remain in place this year. 

With demand outstripping supply by more than 2-to-1 in recent years, employers with openings for positions requiring at least a specialized bachelor’s degree should start preparing now. The H-1B filing “window” for the fiscal year quota opens Monday, April 2, 2018, for a start date six months later on October 1. 

Employers planning to file H-1B cap cases should begin the process by mid-February. We are accepting H-1B cap cases now.

Here is a scorecard to help employers track status of other changes:
 

H-1B Processing Change

Initiated

Implementation

Scrutiny on entry level jobs with Level 1 wages, to examine whether the job is a specialty occupation requiring a degree

After H-1B cap case filings in 2017

Ongoing implementation

Scrutiny on computer programmer jobs, to challenge whether a degree is required

March 31, 2017

Ongoing implementation

Challenge to whether the degree the employer lists for the job is appropriate

2015

Ongoing implementation

End of deference to prior approvals;  extensions to be treated as new cases

October 2017

Ongoing implementation

New 2018 Standard Occupational Code (SOC) job description to use for prevailing wages, https://www.bls.gov/soc/2018/home.htm

November 2017

Likely July 1, 2018

Mandatory pre-registration for employers who plan to file petitions for new H-1B specialty occupation foreign workers 

To be proposed in February 2018

Not likely to be implemented before late 2018

Priority system for allocation of H-1B cap numbers to give priority to the most highly paid and highly skilled workers

To be proposed in February 2018

May require congressional action

Plan to disallow H-1B extensions beyond six years (currently available for persons with green card process underway)

Proposed in January 2018

Not currently planned for implementation

 

Discontinuance of H-4 Spouse Employment Authorization

Where H-1B workers have employment-sponsored permanent residence under way with an I-140 Petition for Alien Worker approval and a processing backlog, H-4 spouses have been able to obtain an employment authorization document (EAD). The Administration plans to end this program, possibly as soon as February 2018. Some H-4 EAD recipients may have other available options, such as H-1B or green card sponsorship, but each will be considered on a case-by-case basis.  Before the H-4 program ends, employers should remind the H-4 workers to apply for EAD renewal 180 days in advance until the program is terminated.

TPS Termination

The Secretary of Homeland Security has designates certain foreign countries for Temporary Protected Status (TPS) where conditions temporarily prevent the country's nationals from returning safely, or if the country is unable to handle the return of its nationals adequately. Based on a determination of changed circumstances, the Administration is ending TPS designation for persons from the following countries:

  • Nicaragua January 5, 2019
  • Haiti   July 22, 2019
  • El Salvador  September 9, 2019

EADs are available and automatically extended under TPS. When an employee presents an EAD that is expired on its face, employers may accept it as automatically extended and valid for Form I-9 and employment purposes, as follows:

  • Look at the “Category” section on the expired EAD. “A-11,” “A-12” or “C-19” indicates validity continues after an expiration date.
  • Check with your attorney or check on the USCIS website for information about which country’s EADs have been automatically extended or terminated.
  • Accept the EAD if it has been automatically extended and the extension still is in effect.

DACA Update

The Deferred Action for Childhood Arrivals (DACA) program allowed persons brought to the U.S. as children of 15 years or younger who are undocumented to remain in the U.S. and to obtain an EAD card to work. In September 2017, the Administration announced it would cancel DACA, effective March 2018, and allow no more new applications, and no extensions after October 2017. On January 9, 2018, a federal court order blocked termination of the program, enabling DACA renewals to continue. On January 16, 2018, the Administration announced its intention to appeal directly to the U.S. Supreme Court, seeking again to end DACA. In the meantime, Congress is working on a legislative fix. 
As long as the DACA program remains alive under the court’s order, employers should remind DACA workers to apply for EAD renewal 180 days in advance of expiration.

Federal Immigration Enforcement Site Visits

The Trump Administration is expanding audits and inspections of H-1B and L-1 employers, as well as H-2A agriculture and H-2B temporary worker employers. The federal office of Fraud Detection and National Security (FDNS) is a division within USCIS created in 2004 to enhance the quality, integrity, and security of the U.S. legal immigration system. The FDNS Administrative Site Visit and Verification Program (ASVVP) conducts both random targeted site visits to verify the information that employers provide in their immigration petitions, such as verification of work location and duties. Benefits Fraud Assessments (BFAs) are focused on suspected fraud or technical violations, such as alleged visa fraud.

Employers must be prepared to address issues and questions that may arise during site visits, be familiar with the information in the petitions filed, and have designated personnel to handle such visits. Attorney representation is permitted during site visits, and employers may ask to postpone the visit until counsel is present.

California employers also should be aware of a new law, effective January 1, prohibiting employers from giving voluntary access to non-public premises for immigration enforcement without a judicial warrant.

Employment-based Green Card Interviews

Historically, applicants for employment-based green card rarely were called for interviews. The Administration has directed that USCIS must now interview all employment-based green card applicants and their derivative family members, to verify eligibility for permanent resident status. This change will lengthen backlogs for approval of employment-based green cards. 

Foreign workers with long pending applications and more than one job throughout their immigration history will need to be prepared to establish maintenance of status at every stage of their process. We recommend that an immigration law attorney be present for complex cases.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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