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During the first Trump administration, U.S. Immigration and Customs Enforcement (ICE) ramped up investigations for Form I-9 violations. From 2017-18, I-9 investigations increased 340%, workplace criminal arrests rose 460%, workplace administrative arrests jumped 787% and the number of workplace enforcement cases initiated increased 305%.
Regardless of the election outcome, companies should be proactive about I-9 compliance — especially in the event of a second Trump term. Here are some reminders concerning I-9 compliance and tips to safeguard your organization from potential I-9 violations and penalties.
Form I-9, Employment Eligibility Verification, is the form all U.S. employers are required to use by law to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date).
While maintaining compliance with Form I-9 obligations may appear straightforward, there are varied rules and requirements around what documentation employees may present to verify their identity and authorization to work, and how the employer must record and maintain that information.
Requirements associated with Form I-9 also change frequently. For example, rules around automatic extensions of certain employment authorization documents have evolved significantly in recent years. The government also launched a new “virtual” I-9 review option for certain E-Verify employers in 2023 that brought its own opportunities and challenges for employers.
Violations found during a government I-9 audit can result in steep fines and penalties for the employer. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2024, fines range from $281 to $2,789 per I-9 violation. In addition, employers that fail to administer their employment eligibility verification programs in a nondiscriminatory manner may be subject to investigation by the U.S. Department of Justice Immigrant and Employee Rights Section (IER).
Companies regularly work with in-house counsel to audit their financial and tax records as part of their routine compliance regime. The same should be true of I-9 records. You should proactively conduct internal I-9 audits to ensure you are compliant with all I-9 requirements and prepared in the event of an official government audit.
Since penalties are assessed for each noncompliant I-9 form, they can quickly multiply if, for example, the same incorrect procedure is applied across multiple I-9 forms. If your company’s self-audit turns up I-9 errors and HR tries to correct them internally, it is critical to ensure the correction is both accurate and adheres to appropriate procedures.
Companies often use commercial or proprietary Form I-9 software programs to complete the Form I-9 and E-Verify processes. In a fact sheet released in December 2023, IER and ICE stressed that using such programs do not “guarantee an employer’s compliance with federal law.”
Your organization remains liable for any errors or violations on the Form I-9, regardless of whether you leverage an electronic system. For this reason, you should fully vet any Form I-9 software before transitioning to an electronic solution and put in place rigorous quality control measures.
The simplest way to ensure compliance is to partner with a law firm that specializes in immigration law, is well-versed in the various Form I-9 requirements and is at the forefront of changes in policy and government enforcement trends.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complex matters such as I-9 audits.
Contact our team of I-9 legal experts to discuss how we can help ensure compliance in preparation of potential audits.
In this week’s episode, BAL’s Tiffany Derentz and Brendan Kinne discuss an updated travel program from the U.S. State Department and travel tips for foreign nationals planning to go abroad during the winter holiday season. Plus, the latest immigration news.
Explore more episodes of the BAL Immigration Report podcast, available on Apple, Spotify and the BAL immigration news page.
This podcast has been provided by the BAL U.S. Practice Group.
Copyright © 2024 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
Jeff Robins, a top immigration litigator, will chair BAL’s litigation group and join the Government Strategies team.
DALLAS, October 22, 2024 /PRNewswire/ — BAL, the world’s leading corporate immigration law firm, announced today that Jeff Robins, one of the most experienced immigration litigators in the country, has joined the firm. Jeff will chair the firm’s litigation group and be a part of Government Strategies team.
“There is no one else like him in the country,” said Lynden Melmed, partner at BAL and former Chief Counsel of U.S. Citizenship and Immigration Services (USCIS). “Jeff started his career at USCIS and then spent almost two decades litigating immigration cases on behalf of the government. His knowledge of federal litigation in the immigration arena is unparalleled.”
Prior to joining BAL, Jeff served as Deputy Director of the Office of Immigration Litigation District Court Section, placing him at the forefront of the litigation of immigration-related issues including jurisdictional issues, class actions and programmatic, regulatory and constitutional challenges. He advised senior leadership in the Departments of Justice, Homeland Security, State and Health and Human Services, as well as U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement and U.S. Customs and Border Patrol.
Over the course of his career Jeff has litigated cases in more than 20 federal district courts and a majority of the 13 federal courts of appeal. Jeff has been at the center of high-stakes immigration cases that include complex H-1B visa litigation, the creation and operation of the Deferred Action for Childhood Arrivals and U Visa programs, Temporary Protected Status, conditions of confinement at immigration detention facilities and Denaturalization.
“Litigation is an increasing area of focus for our clients,” said Frieda Garcia, managing partner at BAL. “Companies must monitor ongoing litigation and evaluate when and how to pursue relief on their own. But we also know that there are sensitivities surrounding immigration and that litigating against the federal government requires excellent judgment. We are confident that Jeff will help clients achieve their objectives without creating public relations or political risks.”
Jeff joins the leading Government Strategies team at a critical time for U.S. immigration. Irrespective of who wins the 2024 presidential election, companies will need to adapt in the upcoming year to rapidly changing policies and enforcement priorities.
To learn more about the firm’s Government Strategies team or to set up a consultation, please email balgov@bal.com.
About BAL
Established in 1980, BAL powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 offices across the United States and global coverage in more than 185 countries around the world, operates as a single entity through its oneBAL culture — a uniquely holistic approach, intentionally structured as one team, one brand, one P&L, one standard of excellence and one unifying technology. This united approach enables the firm to deliver the highest level of knowledge, insights and resources from across the entire organization. At BAL, we pursue the exceptional. To learn more, visit bal.com.
In this week’s episode of the BAL Immigration Report, Gabriel Castro discusses O-1 visas and why more employers are considering them as an alternative to the H-1B lottery. Plus, the latest immigration news.
The stakes are high for the 2024 presidential election, especially for immigration programs. A change in administrations could result in a reactionary environment and swift immigration challenges on day one.
As we count down to the election, now is the time to prepare your immigration program for any outcome. Download this action plan for guidance on organizing a dedicated working group, identifying foreign national employees who require proactive protection and communicating real-time updates to key stakeholders.
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The Diversity Immigrant Visa Program, commonly referred to as the green card lottery, was established by the U.S. government to provide individuals from countries with low immigration rates a chance to live and work in the U.S.
Each year, the U.S. Department of State conducts a random lottery drawing to select 55,000 applicants who will be given the opportunity to apply for a Diversity Visa (DV). This selection process is based on a computer-generated random lottery system, ensuring fairness and equal opportunities for all participants.
To qualify, applicants must be a citizen of a country deemed eligible by the U.S. government and have either a high school education or its equivalent or possess two years of work experience in a qualifying occupation.
Applying for the DV Program is an exciting opportunity for those looking to immigrate to the United States. However, even a minor mistake when filling out the entry form can lead to a major complication in the registration process.
By understanding the most common mistakes and learning how to avoid them, applicants can improve their chances of submitting a successful entry to the green card lottery.
Green card lottery entries are submitted electronically via the Electronic Diversity Visa (E-DV) website during the specified registration period. Although the DV instructions provide detailed guidance for completing the online entry form, there are seven common mistakes — aka “deadly sins” — that could result in delays or even rejection of the application.
The law allows only one entry by or for each person during each registration period. The Department of State uses advanced technology to detect multiple entries. Submissions of more than one entry will be disqualified. Applicants should take the time to review and double-check their information before submitting it.
No late entries or paper entries are accepted. Applicants must use the E-DV website for submission and must submit their application by the specified deadline.
The online registration period for the 2026 DV Program is open now through Nov. 5, 2024, at 12 p.m. Eastern Standard Time (EST) (GMT-5).
Applicants should ensure their name and surname are entered exactly as they appear on their passport or other identification documents. They should avoid using nicknames or name variations to prevent discrepancies that could raise concerns during the review process. Applicants should also double-check the date of birth and make sure the correct day, month and year are entered. Inaccuracies in this section can lead to delays or even rejection of the entry form.
Applicants should make sure to include all immediate family members in the entry, including a spouse and any unmarried children under the age of 21. Failure to list any eligible family members can result in their exclusion from the program.
Be cautious of third-party websites claiming to assist with the entry process. These sites often charge unnecessary fees and may provide inaccurate information. It is recommended to visit the official Department of State website or trusted government portal for the application.
Applicants are encouraged to complete the entry form without a “visa consultant,” “visa agent” or any other facilitator who offers to help. If an agent is used, the applicant should be present when the entry form is prepared so that the correct answers to the questions can be provided and the applicant can retain the confirmation page and unique confirmation number.
As we outlined above, to avoid rejection or delays applicants should ensure that all required fields are filled out. Missing information or leaving any mandatory fields blank can result in disqualification. It’s important to take the time to carefully review the form and provide accurate and complete responses.
To qualify, an applicant must either have a high school education or equivalent, defined as the successful completion of a 12-year course of formal elementary and secondary education. Alternatively, an applicant must have at least two years of work experience within the past five years in an occupation that requires a minimum of two years of training or experience.
Being aware of these common reasons for disqualification and learning how to avoid them can help ensure the Diversity Immigrant Visa Program entry is filled out correctly, providing applicants the chance of selection in the green card lottery.
While this is one route to a green card, there are more paths that don’t rely on luck. For example, a National Interest Waiver (NIW) is an immigrant visa that creates a path to a green card without a job offer or labor certification. The NIW is an alternative to the traditional PERM process and is available to those whose work is deemed to be in the national interest of the United States.
There are many ways to get a green card in the United States and the process generally involves a petition, an application, a biometrics appointment, interviews with immigration officials and decisions that potentially come with requests for more information and documents. The processing time for a green card can also vary from one to six years, depending on demand.
While BAL can’t increase an applicant’s luck in the Diversity Immigrant Visa Program, our legal experts are available and ready to help employers identify the best strategy for those looking to immigrate to the United States.
In this week’s episode, BAL’s Steve Plastrik highlights the immigration trends for Fiscal Year 2024 that impacted employers including H-1B selection rates.
View the links below for visualized data of the trends mentioned in his analysis:
Have you started preparing for the upcoming H-1B cap season? Let us help you with your planning Register for the BAL Community Benchmarking webinar: H-1B Cap Planning on Oct. 16 with special guest Catalina Komin, Immigration & Mobility Specialist for Analysis Group.
All in-house immigration professionals can join the BAL Community and access all webinars and employer resources for free.
This alert has been provided by the BAL U.S. Practice Group.
In March, USCIS conducted an initial random selection for registrations for the Fiscal Year 2025 H-1B cap. Recently, they determined they would need to select additional registrations to reach the FY 2025 regular cap and as of Aug. 5, USCIS announced a sufficient number of registrations for the second H-1B lottery had been reached and all prospective H-1B petitioners with selected registrations that are eligible to file had been notified.
Only petitioners with selected registrations are eligible to file H-1B cap-subject petitions and every year demand outpaces supply. Under federal law, 85,000 cap-subject visas are available each year, including 20,000 set aside exclusively for advanced degree holders. In recent years, demand for H-1Bs has skyrocketed — even through a global pandemic and an uncertain economy. On top of that, the H-1B registration fee is set to jump from $10 to $215 next year, providing another hurdle for employers hiring highly skilled foreign national talent.
The H-1B program continues to be oversubscribed, and given the low selection rate in recent years, contingency planning is as important as ever. A good H-1B contingency plan for valued employees can set an organization up for success. Whether it is a backup plan for employees whose current work authorization will expire this year or next or an effective talent recruitment plan for future employees, organizations can utilize these common H-1B alternative visa options to better ensure sponsorship:
In this election cycle, the issue of immigration is not just about what is happening at the border. The direction of the H-1B visa program is also on the line.
The H-1B nonimmigrant visa program allows U.S. employers to hire foreign workers in specialty occupations to work temporarily in the United States. This in-demand program is the primary pathway by which employers can recruit and hire foreign workers with expertise in specialized fields such as technology, engineering and healthcare — often filling crucial skills gaps.
Since many immigration policy changes are made through the executive branch, the winner of the election will heavily influence the future of employment-based immigration. We can already predict what both potential futures might look like, assuming a Harris administration would likely continue the modernization initiatives started by President Biden and a Trump administration would bring back policies similar to those it attempted to issue at the end of its first term.
As a reminder, here is a look at the H-1B visa regulations the former president had in the pipeline before the 2020 election and what they could mean for a potential second Trump administration.
In its final days in office, the Trump administration issued a series of regulations aimed at restricting the use of the H-1B program as part of its implementation of Trump’s April 2017 “Buy American and Hire American” executive order. The order laid the foundation for many of the policies Trump’s administration pursued to restrict employment-based immigration programs. In a second Trump term, we would expect to see similar policy priorities.
The first of Trump’s H-1B regulations was the October 2020 Department of Labor wage rule, an Interim Final Rule (IFR) that — effective immediately — significantly increased wage obligations for H-1B, H-1B1, E-3 and PERM programs. The rule required that minimum salaries for foreign-born professionals be set far higher than what was typically paid to similar U.S. employees. No advance notice was given to employers, who were left scrambling to adapt.
The rule was blocked in federal court in December 2020, but had it not been, it likely would have had the effect of pricing H-1B visa holders and other employment-based immigrants out of the U.S. labor market.
The DOL published a similar final rule to amend H-1B wage obligations on Jan. 14, 2021, just days before the end of Trump’s presidency. The rule was scheduled to take effect on March 15, 2021 — during H-1B cap registration. After taking office on Jan. 20, 2021, the Biden administration delayed the final rule’s effective date and issued a public request for information to determine how to best approach the issue. A court vacated the Trump-era rule, and the Biden administration has not taken further action on the issue.
While it is unlikely that the same wage rule would be issued in a second Trump administration, as it was vacated in court, we expect that a second Trump administration would resume efforts to increase wage obligations by a significant margin.
The Department of Homeland Security under the Trump administration also issued a second rule, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” on Oct. 8, 2020 — the same day DOL issued the wage rule. This IFR had a 60-day delayed effective date, and therefore did not ignite the kind of chaos we saw following the wage rule. Although this rule was also blocked in court, the Trump administration still attempted to issue a final rule by posting the text of it online a week before President Biden’s inauguration.
Had the rule gone into effect, it would have narrowed eligibility for the H-1B visa, including by providing that a position must always require a degree in a directly related specific specialty to qualify as a “specialty occupation.” In addition, the rule would have heightened evidentiary requirements for positions involving third-party placements and shortened the validity period for those cases.
Finalized in January 2021, the H-1B wage-prioritization regulation would have reshaped the H-1B cap selection process and limited opportunities for early career professionals. The rule was scheduled to take effect March 9, 2021, just before cap registration, but the Biden administration issued a notice on Feb. 8 delaying the effective date. Although it never took effect, the U.S. Citizenship and Immigration Services regulation would have replaced the annual H-1B lottery with a new selection process that prioritized H-1B registrations based on the wage level the petitioning employer would pay the beneficiary.
The proposed prioritization system would likely have eliminated eligibility for Level 1 and many Level 2 positions. Newly graduated international students would have been most impacted, as they are more likely to be hired into entry-level positions that offer Level 1 and 2 wages. In September 2021, a federal court vacated the rule and the Biden administration later withdrew it. Though President Biden did signal support for a wage-based allocation process, USCIS did not take any action to pursue this policy during his administration.
The transition between the Trump and Biden administrations brought about great uncertainty for employers because it was not clear if any of Trump’s rules were going to be in place for the 2021 H-1B cap season, for which companies had already spent months planning. We watched, in real time, as all three Trump rules went through litigation, were revisited by the Biden administration and were ultimately vacated in court.
Along with the restrictive H-1B policies Trump attempted during his first term, another change we would expect to see again in a potential second term is the rescission of the longstanding “deference policy.”
In October 2017, USCIS issued a policy memorandum that took effect immediately, directing USCIS officers to no longer give deference to prior agency determinations in extension of status cases. USCIS officers began reviewing extension cases as if they were completely new petitions. As a result, the agency issued requests for evidence and denials at higher rates than ever before. This led to a great deal of confusion and anxiety among foreign national employees and created challenges and business disruptions for employers.
The Biden administration reinstated the deference policy in April 2021 via policy memorandum. In October 2023, USCIS proposed to codify the policy into the regulations as part of the H-1B modernization proposal, which is currently moving through the regulatory process. Though the Biden administration has moved to make the policy permanent, it is currently only a policy memorandum. If the policy is not codified before Biden leaves office, a second Trump administration would be able to once again rescind the deference policy by simply issuing a policy memorandum — and create the same unpredictable, inconsistent adjudication environment we saw during the first Trump term.
If Trump is elected for a second term, it is highly likely that the administration would pursue similar policies. Here are three ways you can be prepared for that potential scenario:
BAL’s Government Strategies team is well-versed in these regulations and can consult your organization on the best path forward. Schedule a consultation with our team to get started.
This article was originally published on Law360.com.
In this week’s episode, BAL’s Jeff Joseph invites Natalie El-Diery, the Director of Immigration and Integration in the Utah Governor’s Office of Economic Opportunity, to discuss the department’s immigrant integration initiatives and the vital role she plays in helping Utah’s new Americans find gainful employment.
Plus, top immigration news including updates on registration for the Diversity Visa for Fiscal Year 2026.