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All companies, regardless of size, sector or type of workforce, are subject to investigation by Immigration and Customs Enforcement (ICE), to verify that their employees are authorized to work and that they have properly completed I-9 forms for all employees hired after Nov. 6, 1986. A company that receives a notice of inspection must be able to produce its I-9 Employment Eligibility Verification forms within three business days. If you’re an HR manager and ICE comes knocking, are you prepared?
ICE is dramatically ramping up investigations of all types of employers for I-9 violations. An electronics company was raided last month in the largest workplace immigration sweep in a decade. Notably, the investigation preceding that raid began as an inspection of the company’s I-9 forms after ICE received multiple tips that the company, a Texas office owned by New Jersey-based CVE Technology, may have hired undocumented workers presenting false IDs. The I-9 audit uncovered “numerous hiring irregularities,” according to ICE, leading to a raid in which nearly 300 employees were arrested.
I-9 violations can lead to steep fines, but a regular review can help employers detect errors and avoid penalties. A recent decision in which a New York cleaning company was assessed $44,000 in fines for I-9 violations is a wake-up call for companies to audit their I-9s as soon as possible. Companies should also consider establishing best practices and implementing written I-9 policies and train their staff. Even though the New York employer’s violations all occurred before a new schedule of higher I-9 penalties took effect in 2016, the I-9 errors remained uncorrected and were therefore deemed to be “continuing violations” that carried over into 2016. As a result, the company’s fines were assessed under the increased range of penalties—double the previous range it would have been assessed had it discovered and fixed the errors earlier.
When it comes to the 1-9 compliance minefield, however, good intentions and self-audits can sometimes do more harm than good. One example, where missteps are common, is when a company’s self-audit turns up I-9 errors and HR tries to correct them. HR must make sure the correction is both accurate and adheres to appropriate procedures, particularly where a new I-9 form is created to correct an original, which must still be retained on file. Since penalties are assessed for each noncompliant I-9 form, they can quickly multiply if, for example, HR applies the same incorrect procedure across multiple I-9 forms. For these reasons, companies should not try to audit themselves and should engage an attorney who specializes in I-9 compliance.
In addition to costly fines, companies risk reputational damage for I-9 noncompliance. The Trump administration has not been quiet in raiding employers—it’s using a bullhorn and amping up the volume. Early on, the administration promised to prioritize investigation of employer abuse in visa programs. The April 2017 “Buy American and Hire American” Executive Order directed federal agencies to protect American workers through various measures, including greater scrutiny of employers. In September 2017, ICE levied a whopping $95 million settlement with a nationwide tree company for I-9 violations, including both civil and criminal fines. The settlement also put employers on notice that immigration authorities would leverage reputational harm and violators should expect their names to be splashed across the news. Asplundh Tree Company has become a poster child of I-9 noncompliance. No company wants to be the next example.
Shortly after the settlement with Asplundh, ICE announced that it would quadruple workplace investigations—and it has made good on that promise. From 2017 to 2018, 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%. New cooperation and information-sharing agreements between federal agencies including the Department of Homeland Security, the Labor Department and the Justice Department mean that a company’s violation in one area of the law could turn into an investigation into other areas.
Companies regularly audit their financial and tax records as part of their routine compliance regime. The same should be true of I-9 records. An I-9 review is an essential business practice, especially in the current enforcement-heavy environment.
L. Ruth Clark is a Partner in the Houston office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
Priority-date cutoff dates will advance in most employment-based categories next month, but will retrogress by more than two years in India EB-1, according to the Final Action Dates chart published in the June 2019 Visa Bulletin.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor Program will be funded through the remainder of the fiscal year under the budget bill President Donald Trump signed in February. The EB-4 category will remain current for June for all countries except El Salvador, Guatemala and Honduras, which will be subject to a March 22, 2016 final action date, and Mexico, which will be subject to an Oct. 1, 2018 final action date. In the EB-5 category, final action dates will remain current in June for all countries except China I5 and R5, which will be subject to an Oct. 1, 2014 final action date, and Vietnam I5 and R5, which will be subject to an Oct. 1, 2016 final action date.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for June. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in June.
Analysis & Comments: Regarding the two-year retrogression for India EB-1, the State Department official who prepares the monthly bulletin predicted last month that there could be retrogression in the final action date due to high EB-1 number usage worldwide. He added that such action would be temporary, however, with a full recovery of the final action dates for India and China by October 2019, the first month of the next fiscal year.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission
A federal judge overseeing 60 lawsuits brought by IT consulting companies that challenge stricter H-1B policies for third-party placements called the government’s policy change “very troubling” at a hearing on Thursday.
In February 2018, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that imposed numerous new requirements on companies petitioning for H-1B workers who intend to work off-site. The changes primarily affect IT consulting companies that petition for H-1B visas and place the workers at client sites. A group of IT consulting companies filed dozens of lawsuits in federal court in Washington, D.C., alleging that the government evaded proper administrative rulemaking procedures, including a public notice and comment period. They argue that the changes have led to lengthy processing delays, shorter durations for approved H-1B visas than the permissible three-year period, and a huge increase in denials, effectively putting the IT consulting industry out of business. They are asking the judge to strike down the new policy.
During oral arguments, U.S. District Court Judge Rosemary M. Collyer expressed skepticism regarding the government’s argument that the change merely re-interpreted existing policy. She pressed the government lawyer on why the policy has led to a sharp rise in denials and chastised him for not being able to explain why the agency is taking up to one year to adjudicate these H-1B petitions instead of 30 days. H-1B denial rates for IT consulting companies have soared to up to 40%. The judge ordered additional briefing before she makes a decision.
The case is ITServe Alliance v. USCIS, No. 1:18-CV-02350, U.S. District Court for the District of Columbia.
BAL Analysis: While it is notable that the judge explicitly criticized the government’s arguments, it is too early to predict a decision, as she also noted that her decision may hinge on the Administrative Procedure Act, which could favor the government’s argument. The February 2018 policy changes for third-party H-1B placements remain in effect at this time. BAL is continuing to monitor the progress of the lawsuits.
Copyright © 2019 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.
Results of the Diversity Visa lottery for fiscal year 2020 are now available on the State Department’s Electronic Diversity Visa lottery page. The lottery allots 50,000 green cards to individuals from countries with historically low levels of immigration to the U.S. Entries for fiscal 2020 were accepted Oct. 3, 2018 to Nov. 6, 2018.
Key dates and procedures:
BAL Analysis: Applicants are reminded that the State Department’s Entrant Status Check webpage is the only official source where results are posted. They must use the official website to find out if they have been selected in the lottery and, if selected, to check for the date of their immigrant visa appointment, as the U.S. government does not directly notify winners. The State Department also instructs entrants in the fiscal 2020 lottery to retain their confirmation number until at least Sept. 30, 2020.
The Labor Department has posted processing times current as of April 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in February and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in October and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in April:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in January and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in March and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in February and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in March:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in February and earlier and is seeing PWDs for requests filed in January and earlier.
A federal court has blocked U.S. Citizenship and Immigration Services (USCIS) from implementing an August 2018 policy memorandum that changed the way “unlawful presence” is calculated for foreign students and exchange visitors.
Key points:
Background: The plaintiffs include colleges and universities and two individuals who entered as F student visa holders but are no longer students. Both were recruited by the U.S. Army and instructed not to leave the country while waiting for basic training. Under existing law, anyone who accrues 180 days of unlawful presence in the U.S. and later leaves is barred from re-entering for three years (10 years if they accrue one year of unlawful presence). The court ruled that they were likely to succeed on their claims that USCIS violated rulemaking procedures by not publishing a proposed rule in the Federal Register and opening up a public notice and comment period; and that the policy memo conflicts with immigration statutes that distinguish between “unlawful presence” and “unlawful status.”
BAL Analysis: The ruling temporarily blocks USCIS from implementing the new policy that accelerated the unlawful presence calculation and carried serious consequences for foreign students and exchange visitors. The ruling requires USCIS to revert to the previous longstanding rules for unlawful presence calculation for the duration of the lawsuit. The government is expected to appeal the decision.
IMPACT – MEDIUM
What is the change? The United States and Israel will implement an agreement on May 1 to let nationals of each other’s countries apply for investor visas.
What does the change mean? Israeli nationals will be able to apply for U.S. E-2 Treaty Investor Visas. U.S. nationals will be able to apply for B-5 Israel Investor Visas. Israelis have been eligible for E-1 status based on a treaty signed in 1954.
Background: The visa agreement has been years in the making. Legislation passed in the U.S. in 2012 required that Israel provide reciprocal provisions to U.S. citizens investing in Israel; the delay in implementing the agreement was based on Israel’s inability to demonstrate, until recently, that it had put in place a reciprocal provision for U.S. citizens.
U.S. E treaty Visas will be available to Israeli nationals who either (1) set up a U.S. business that primarily trades with the U.S. or (2) make an investment substantial enough to ensure the successful operation of a business enterprise and/or are employed in a supervisory, executive or highly specialized skill capacity at the business in question. E classification also will be available to certain Israeli nationals lawfully present in the U.S. who seek a change of status to E-2 status, but they will have to reapply for E visas in Israel if they leave the country. B-5 Israel Investor Visas will be available to U.S. nationals who make a substantial investment in an Israeli business or entrepreneurship and plan to remain in Israel to develop the investment.
Additional information about the U.S. E-1/E-2 Investor Visas is available here. Additional information about the B-5 Israel Investor Visa is available here.
Analysis & Comments: The reciprocal visa program will provide a new path to U.S. and Israeli investors interested in increasing trade between, or investing in, the U.S. or Israel.
This alert has been provided by the BAL U.S. Practice group and Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
Former President George W. Bush raised eyebrows last month during a speech at a naturalization ceremony, when he veered into politics and urged legislative reform of the immigration system.
“When the laws are outdated and ineffective, they must be rewritten,” he said. “I hope those responsible in Washington can dial down the rhetoric, put politics aside, and modernize our immigration laws soon.”
Now, Senate majority leader Mitch McConnell has called for bipartisan legislation to do just that. It’s “long past due” for Republicans and Democrats to work together to fix the immigration system, he told reporters before Congress took Easter recess. In response, House majority leader Nancy Pelosi said she was “pleased to see” McConnell’s willingness to talk immigration. In the coming days, the White House is expected to hear an immigration reform proposal prepared by Trump’s senior advisor and son-in-law Jared Kushner that will reportedly cover border security, a merit-based immigration system, temporary guest worker programs, and asylum laws.
In normal times, immigration reform would seem impossible in such a divisive environment, a political third-rail as campaigning for the 2020 election gets underway. But these are hardly normal times. Several conditions make the environment conducive to legislative action on immigration. First, immigration reform is long overdue—the last time Congress made major changes to the system was more than 20 years ago in 1996, and truly comprehensive immigration reform dates back to 1986. Second, the administration has been pushing its immigration agenda so heavily that it may be forced to make concessions and get Congressional buy-in if it wants to continue to pursue its aims. Third, the surge in Central American asylum seekers could be the catalyst for a broader immigration debate.
Will Congress defy conventional wisdom and tackle immigration reform? If so, which issues are likely to be addressed and will they include business immigration routes for high-skilled workers?
Republicans appear most interested in addressing reforms to asylum law to tamp down on asylum applicants at the southern border. The White House is looking to modify the Flores settlement agreement, which requires the government to release children held in detention after 20 days, and the Trafficking Victims Protection Reauthorization Act (TVPRA), which provides legal protections for unaccompanied minor children who enter the U.S. Democrats appear willing to deal on border issues but would want reinstatement of Deferred Action for Childhood Arrivals and Temporary Protected Status, two programs threatened with elimination and that remain in existence only because of intervention by the courts.
While it is unclear whether lawmakers will expand the negotiations beyond border issues and address legal immigration routes, including high-skilled workers, Republicans reintroduced the RAISE Act in both the House and Senate last week, a day before McConnell’s comments. The RAISE (Reforming American Immigration for a Strong Economy) Act would introduce a points-based system for employment-based visas that would pool applicants and rank them on the basis of education, English-language ability, age, salary level, and other achievements. U.S. Citizenship and Immigration Services would conduct draws twice a year and invite the candidates with the highest scores to apply for immigrant visas. The RAISE Act also proposes to slash family-based immigration, cap the number of refugees granted permanent residency at 50,000 per year, and abolish the annual Diversity Visa lottery program that allows 50,000 nationals of countries with low levels of immigration to the U.S. to apply for green cards. President Trump endorsed a similar version of the RAISE Act when it was first introduced in 2017.
Congress has failed to carry out comprehensive immigration reform for decades. Now, more than ever, businesses and individuals should engage with policymakers to help shape an immigration system that responds to today’s challenges.
Xavier Francis is an Associate Attorney in the Tysons, Virginia office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes
The 9th U.S. Circuit Court of Appeals has ruled against the Trump administration in its efforts to stop California from enforcing most of the provisions of its “sanctuary state” laws. A three-judge 9th Circuit panel ruled Friday to uphold most of a U.S. district court decision issued last summer.
Key Points:
BAL Analysis: The ruling largely reinforces the status quo, pending additional litigation. Most of the provisions of California’s sanctuary state laws that were challenged in the appeal will be allowed to stand. However, key provisions of AB 450 remain enjoined. BAL will continue following the litigation as it moves through the court system and will alert clients to any significant changes.
The new U.S. Citizenship and Immigration Services (USCIS) online H-1B Employer Data Hub shows that H-1B denial rates for both initial and renewal petitions have increased dramatically in the past two years, according to analysis by the National Foundation for American Policy (NFAP).
USCIS launched the H-1B Employer Data Hub on April 1 to allow public access to H-1B data. The hub is searchable by company name and address, fiscal year, or NAICS industry code. The hub displays year-by-year data since 2009 for each company, the number of initial and continuing H-1B petitions USCIS approved and denied in each fiscal year. The USCIS website also provides downloadable files showing complete data sets for fiscal years 2009 to 2019.
Key figures:
Initial H-1B Petitions
Continuing Employment H-1B Petitions
The full report by the National Foundation for American Policy is available here.
BAL Analysis: The data confirms the sharp increase in denials across all employers for both new and continuing employment of H-1B workers since President Trump’s “Buy American and Hire American” executive order in 2017. While the most recent available data only covers the first quarter of fiscal year 2019, employers should anticipate that these trends will continue.