I-9 Compliance & H-1B, H-4 Visa Changes in Trump’s 1st 100 Days

by Buchanan Ingersoll & Rooney PC
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Earlier this year we hosted a seminar titled “Immigration and the Trump Administration: What Every Employer Needs to Know for the First 100 Days and Beyond.” A link to the recorded presentation can be found here.

As we’re sure you’ve seen on the news, immigration has been a central focus of the new administration. And while most of the media coverage has focused on the travel/refugee ban and construction of the border wall, there have been additional changes to immigration policy and enforcement that could directly impact businesses and employers.

The following are just a few of the immigration policy changes now in effect or expected in the near future that are of vital importance to employers.

I-9 Compliance
On January 25, 2017, President Trump issued the “Enhancing Public Safety in the Interior of the United States” Executive Order, requiring all executive agencies to prioritize the enforcement of U.S. immigration laws. For businesses, this likely means that more frequent and intensive audits or investigations of employers’ I-9 compliance are coming.

Additionally, on January 22, 2017, the United States Citizenship and Immigration Services began requiring employers to use a new version of the I-9 form for all new hires. Failure to use the new form could mean civil penalties between $216 and $2,156 for every improper form used.

With increased oversight expected in the coming months, it is more critical than ever that business leaders are in full compliance with the I-9 regulations. You can find the form and instructions at www.uscis.gov/i-9. The form is now available in print and electronic formats.

A recent crackdown on employers engaging in discriminatory I-9 practices has also led U.S. employers to the realization that they have to constantly balance two important concerns when conducting the I-9 verification process – ensuring that their workforce is employment-authorized and avoiding citizenship status or national origin discrimination. We have noticed a recent trend of ramped-up enforcement by both the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI), which is responsible for enforcing the I-9 requirements, and by the Department of Justice’s (DOJ) Office of the Special Counsel (OSC), which is responsible for enforcing the unlawful discrimination regulations. Enforcement actions by the OSC are sometimes the result of an overly cautious employer simply attempting to ensure proper completion of the I-9 paperwork, unfortunately resulting in “over-documentation,” or other practices that may be considered unlawful discrimination or document abuse.

H-1B Visas

Although candidate Trump promised to immediately end the use of H-1B Visas on the campaign trail, President Trump has not taken steps to revamp or end this visa program, yet. The H-1B Visa program enables skilled works from foreign countries to be employed in the U.S.

Previously, when asked about the status of H-1B Visa reform, White House press secretary Sean Spicer said in part, “I think there is the legal part of immigration and then the illegal part of immigration. The president’s actions that he’s taken in terms of his executive order and other revamping of immigration policy have focused on our border security, keeping our country safe, our people safe. And obviously, whether it’s H-1B or the other one – spousal visas and other areas, student visas – I think there is a natural desire to have a full, comprehensive look at that.”

However, there is movement in Congress to limit the use of H-1B visas. Senator Chuck Grassley of Iowa and Senator Richard Durbin of Illinois re-introduced a bill from 2007 that would require all employers seeking to hire workers on the H-1B visa to make a “good faith effort” to hire Americans first. We will continue to monitor the progress of this and other similar legislation.

The H-1B filing season for cap-subject employers recently commenced on April 3 and is expected to once again result in more H-1B petitions received than are available, leading to a “lottery” to select the lucky 85,000 petitions that would be accepted for processing. Even though it is too late for cap-subject employers to file for H-1Bs, “cap-exempt” employers are able to file such petitions at any time. Cap-exempt employers include institutions of higher education, non-profits affiliated with institutions of higher education, non-profit research organizations, government research organizations. Even for-profit companies can file “cap-exempt” H-1Bs when the H-1B employee will be working at the location of a cap-exempt institution above. Additionally, there may be additional options available to cap-subject employers through other visas – for example, TN, E-3, O-1, P-1, R-1, among others. The availability of such options requires a case-by-case analysis one of our experienced attorneys can provide.

H-4 Visas

While movement is slow on the H-1B Visa program, a related visa, the H-4, is in play. The H-4 visa is presented to immediate family members (spouse and children under 21 years of age) of H-1B visa holders. The H-4 visa, alone, does not provide work authorization to the holder. However, in certain limited circumstances, an H-4 spouse of an H-1B visa holder may apply for work authorization, only if the principal H-1B visa holder has reached a certain point in the permanent residency process. It is not available to children in H-4 status. You can read more about H-4 work authorization here.

The H-4 work authorization was instituted through a rigorous rule-making process during the Obama Administration. It is still valid law that allows certain H-4 spouses to obtain work authorization. The Trump Administration could potentially seek to undo the rule, which would take at least a few months. Additionally, on March 9, 2017, the Trump administration requested 60 days from a U.S. appeals court to consider its response in a lawsuit challenging the H-4 regulation. However, to this date, the Trump administration has made no indication that it will try to undo the H-4 work authorization rule through this lawsuit.

We encourage employers of H-4 workers to continue monitoring the immigration developments. If the H-4 work authorization program is suspended, employers may have to consider switching the H-4 workers to another work authorized status, if eligibility for such alternate status exists.

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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