The state of US immigration law is in the throes of tremendous change, under unprecedented stresses as an old system struggles to deal with today’s reality. Mass migration is common and will only increase, the World Bank attributing 140 million alone due to climate change by 2050, seen today both by the professional seeking better career opportunities and the refugee grasping for personal security. This article will parse through recent news and, due to article length constraints, focus on topics most relevant to employers and their counsel.

ICE

Immigration and Customs Enforcement (ICE) has taken an increasingly aggressive stance towards illegal employment by seeking out and punishing the guilty employer. The law is clear: on the first day of hire for pay, an employee must choose from a list of acceptable documents that prove identity and employment authorization and complete the first portion of Form I-9. The employer’s designated representative reviews the documentation and completes the rest of the form. If the employer is registered with E-Verify, the documents provided must include one with a photograph.

ICE can audit I-9’s at any time by providing 72 hours’ notice of inspection (NOI). An internal yearly self-audit by the employer’s HR department is a prudent means to be sure the I-9’s are compliant before an NOI arrives. From our experience, some employees show employment authorization documents (EADs) that necessarily expire, upon which their employment authorization may cease, often surprising both the employer and even the employee. An annual self-audit will keep both employer and employee aware of when the employee, assuming eligibility, should apply for a new EAD. However, an unannounced raid by ICE can happen at any time and scoop up both the illegally hired employees and even independent contractors’ employees on the premises, a subject for another article.

Why are authorized employment and accurate I-9’s so important? First, it is the law, and second, the fines imposed by the Department of Homeland Security range from $375 to $16,000 per violation. In 2017, Asplundh agreed to pay $95 million in fines for hiring unauthorized workers. The knowing hiring of unauthorized workers can also include forfeiture of property and imprisonment of not just company owners but managers as well.

How common are NOI’s? In the first half of 2018, 5,200 NOI’s were delivered as part of a two part nationwide operation. For the second phase, 2,738 NOI’s were issued. To place this in perspective, this represents a 400% increase in NOI’s for fiscal year 2018. ICE has indicated it will continue its enforcement activities which recent news further corroborates.

California is the first state to introduce a law to sanction an employer for cooperating with ICE, thus placing an employer on the proverbial horns of a dilemma. California law AB 450, effective 01/01/2018, prevented employers from responding to an ICE request for documents without a subpoena or judicial warrant and from permitting ICE agents physical access to nonpublic areas without a judicial warrant. It also required the employer to notify employees and any labor union if ICE is auditing the I-9 forms. Fines range from $2,000 to $10,000 for an employer, while obeying federal law, fails to comply with AB 450. As a result, ICE announced it plans increased enforcement activities in California. However, Federal District Court Judge Mendez enjoined private sector employers from being prosecuted for allowing ICE to access nonpublic areas or voluntarily allowing the ICE agent access to employee records, upholding the pre-inspection notice to employees or his/her collective bargaining representative and post-inspection notification of an affected employee. There are no further developments as of the date of writing this article.

Work Visas

The H-1B visa is a common employer-sponsored temporary, and hence nonimmigrant, visa used to hire highly skilled workers in so-called “specialty occupations”. Specialty occupations are those which require the minimum of a US bachelor’s degree or foreign equivalent. This visa is especially popular with IT companies who hire thousands of such workers, mainly from India and China. Entitled the Immigration Innovation Act of 2018 and introduced in September, 2018, HR 6794 is a bill before Congress that primarily affects the H-1B visa with a long-term goal of increasing investment in STEM for US students in K-12 and college. Homeland Security Secretary Kirstjen Nielson has also told the Senate Judiciary Committee considering the bill that another goal of the bill is that US workers not be forced to train their H-1B replacements nor should foreign workers be exploited by being paid lower salaries.

If enacted, the law would remove the annual quota on holders of a US master’s degree or higher which is currently capped at 20,000 per year (The annual cap on bachelor’s degrees is 65,000). The proposed law creates an electronic registration requirement for employers seeking to file cap-subject H-1B petitions, prioritizing foreigners with US Master’s degrees or higher, foreign PhD’s, followed by those holding US STEM bachelor’s degrees. It also provides a grace period to allow H-1B visa holders to change jobs without losing status, regardless of whether termination of their employment was voluntary or involuntary.

Further, the bill would seek to protect US workers by penalizing employers who have more than 5 H-1B employees who work under 25% of the time the first year of hire, and importantly, prohibits employers from hiring an H-1B worker to replace a US worker. It also permits work authorization for spouses and dependent children of H-1Bvias holders.

Finally, the bill would curtail the current harsh stance of the US Citizenship and Immigration Services (USCIS) reviewing H-1B petition and all extension petitions by the same employer. The USCIS has indicated that it will review such extension petitions de novo, and in September 2018, added the regulation that it can unilaterally approve or deny petitions without first issuing a request for more evidence, in essence withholding from the employer a “second bite of the apple”. The new legislation would mercifully requires approval of an extension unless there was a material error in the first petition, a substantial change in circumstances, or if material information is discovered that adversely impacts the eligibility of either the employer or employee.

Now a regulation, the Department of Homeland Security announced that effective in fiscal year 2020, employers seeking an H-1B visa must first electronically register all H-1B petitions with the USCIS during a specific registration period, counting all registrations toward the number allowed to reach the H-1B cap. Once a sufficient number are registered, the USCIS will first consider those holding advanced degrees, increasing the likelihood that most H-1B visas will in future be awarded for the most skilled and highest paid positions. It will decrease the chances of success for those with a US bachelor’s or non-US bachelor’s degree or foreign graduate degree. However, USCIS predicts that there will be a 16% increase in the number of US graduate degree holders permitted to remain in the US upon graduation.

Permanent US Residence aka ‘Green Card’ Developments

The coveted “green card” entitles the holder to remain in the US indefinitely, change jobs with no obligations on either the employer or prospective hire, other than completion of a Form I-9, and eventually apply for US citizenship. HR 392, if enacted, would eliminate the current per-country limits for employment-based green cards. The bill also exempts from per-country limits the spouses and children of employment-based green card holders, holders of US STEM master’s degrees or higher, and extraordinary EB-1 green card holders. It would create a conditional green card for university-educated candidates by a process different from the onerous process of seeking to move an H-1B visa holder to green card status. A conditional green card would be issued if the employer can attest that no US worker would be displaced thereby, that it first recruited US workers for the position, and if it agrees to pay not less than a $100,000 per year in salary.

This bill is supported by Amazon, Deloitte LLP, Equifax, Inc., Hewlett Packard, Microsoft Corp., IBM Corp., Salesforce.com and Texas Instruments, among others. In fact, its enactment would have a profound effect on skilled Chinese and Indian workers. The bipartisan Congressional Research Service, an independent research department of Congress, has determined that countries like China and India will dominate the green card market if per-country quotas are eliminated. For example, with a 7% per country quota, the backlog is currently at almost 10 years for Indians, with 306,601 waiting in line for green cards as of April 2018.

Conclusion

While Congress has recognized the urgent need for changes in our immigration law, the likelihood of continued gridlock over our southern border may well delay or prevent any significant changes that will help employers to retain or hire foreign talent. But meanwhile, ICE is aggressively on the move to ensure that employers have a legal workforce.

March 27, 2019/by International Practice