Littler Lightbulb: Pressing Immigration Issues for Employers

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Littler’s Global Mobility and Immigration practice group assists employers as they face unprecedented day-to-day business challenges, including an unpredictable economy, stepped-up government enforcement, and myriad employment issues that arise in the immigration context. This article shines a light on several critical developments that demand employers’ attention.

  • Coronavirus. The novel coronavirus (COVID-19) has multiple implications for the workplace, including health and safety, employee work authorization, and business travel. For employers of employees requiring visa-processing services, the closure of U.S. consulates abroad due to the virus is of chief concern. For example, if a foreign worker returned (or needs to return) to their home country to obtain a visa from the U.S. embassy to work, but the embassy is closed, there is little that can be done to expedite that approval process. When consular services are suspended, current or prospective employees may be unable to obtain work authorization and/or may be stranded waiting for permission to reenter the U.S.

Business travel also has been significantly impacted by COVID-19. The U.S. Centers for Disease Control and Prevention (CDC), like the U.S. Department of State, issues notices advising against travel to countries experiencing outbreaks or posing other health risks. As of now, the CDC advises against nonessential travel to China, South Korea, Italy and Iran because of COVID-19. Employers worldwide are grappling with questions about whether to host planned events and to restrict employee travel for personal or professional purposes. Littler is closely monitoring these and other employment-related considerations, and our COVID-19 guidance can be found here.  

  • State Prosecution Based on False Information from Tax Forms. In Kansas v. Garcia, decided March 3, 2020, the U.S. Supreme Court held that state prosecutors may use new hire tax documentation (Form W-4 or a state equivalent) to prove that individuals lacking authorization to work in the U.S. committed fraud and identity theft by using stolen Social Security numbers (SSNs). Under the Immigration Reform and Control Act (IRCA), an individual’s Form I-9, and the information contained therein, may be used only for enforcement of the Immigration and Nationality Act or other federal laws. In this case, three undocumented workers used fraudulent SSNs on their I-9s as well as on their federal and state tax withholding forms to obtain jobs in Kansas. The state prosecuted them under identity-theft and false-information statutes based on the use of the SSNs in the tax documents. They challenged their convictions, arguing that the use of any information included on an I-9 as evidence for state crimes was preempted by the IRCA. The Court rejected their preemption arguments, concluding that the use of the false SSNs in the tax documentation—even though the same information was also included in the I-9s—could be grounds for state prosecution. While the ruling does not change employers’ responsibilities under IRCA, it stresses the need for employer diligence in I-9 review and recordkeeping. Further, employers may find that the added threat of state prosecutions may constrict the pool of interested workers, particularly in industries that rely heavily on immigrants, and that they see more requests for documents from government agencies. Employers should update and reiterate training for managers on I-9 compliance and proper protocol for responding to government requests for employment documentation.
  • Final Public Charge Rule Takes Effect. After a January 27, 2020 U.S. Supreme Court ruling lifted a nationwide preliminary injunction (pending further proceedings before the appellate court), U.S. Citizenship and Immigration Services (USCIS) rushed to implement the Inadmissibility on Public Charge Grounds rule (“Final Rule”) beginning on February 24, 2020. Under the long-standing “public charge” doctrine, aliens can be deemed inadmissible for entry, and ineligible for a visa or residency in the U.S., if they are likely to become reliant on government benefits for subsistence. The Final Rule amends how public charge assessments will be made; instead of asking if the individual is “primarily dependent” on public benefits (the practice since 1999), USCIS will now consider whether it is “more likely than not” that an individual will use certain benefits in the future. The Final Rule also expands the types of public assistance that will be treated as evidence that an applicant may become a public charge, which could more readily disqualify them from receiving a green card (lawful permanent residency) or a work visa. Applicants must provide extensive background information such as financial status, age, health, credit history, tax records and education level, etc. Green card applicants must also complete a new Form I-944, the “Declaration of Self-Sufficiency,” to prove they are not likely to become a public charge. Employers may find that this amended process affects the visa and/or residency eligibility of desired workers, in addition to anticipated delays, more burdensome paperwork, and increased expense.
  • Enhanced Enforcement Will Continue. As is often the case in a presidential election year, employers can expect ongoing, heightened enforcement of immigration laws through various administrative means. Immigration and Customs Enforcement (ICE) is likely to maintain (or perhaps yet again increase) the number of I-9 audits, for example. According to the Department of Homeland Security FY 2021 proposed Budget in Brief, ICE investigatory agents “conducted 6,456 Employment Eligibility Verification (Form I-9) inspections and issued over $14.3M in judicial fines, forfeitures, and restitutions against employers in violation of employment eligibility verification requirements” in FY 2019, marking an increase of nearly 500 audits. The pace of audits is unlikely to slow—particularly in light of a newly-launched audit campaign—and employers should be aware that it is no longer uncommon for large businesses to face potential penalties upward of $1 million.

Employers also may feel sustained pressure from the possibility of worksite enforcement actions, or raids. Standing by their 2017 promise to drastically increase such actions, ICE agents “initiated 6,812 new investigations” in FY 2019 (about the same as last year), according to ICE budget justification materials. High-profile raids illustrate the need for employers to adopt proper protocol for ICE investigations—before the knock at the door.

Meanwhile, the Social Security Administration (SSA) renewed its practice of sending employment eligibility correction request notices (known as “no-match letters”) to employers in 2019. No-match letters notify employers of a discrepancy in an employee’s information between the SSA’s records and the employee’s Form W-2. Employers must then inform employees of the discrepancy and submit corrected information within 60 days. Employers’ responses to these letters will vary according to the situation, but internal audits of I-9 data can help a company identify and correct discrepancies.

  • New Version of Form I-9. On January 31, 2020, USCIS published a new edition of Form I-9, used for Employment Eligibility Verification. Employers may begin using this updated form immediately, but must use it as of April 30, 2020. Per the Federal Register announcement, the new form clarifies who can act as an authorized representative on behalf of an employer and what documents qualify as proper identification.

Employers should proactively review any policies and procedures potentially affected by the above developments. These and related topics will be discussed at the Littler Executive Employer conference, both in a session specifically addressing immigration compliance as well as in roundtables tailored for the health care and hospitality industries.

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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