Business Immigration Insights

Since mid-June, the White House has been promising massive U.S. Immigration and Customs Enforcement (ICE) coordinated immigration raids around the country.  The goal: arrest and quickly remove approximately 2,000 recently arrived individuals with deportation orders.  This, according to the White House, would serve as a deterrent to others seeking to enter the U.S. unlawfully.  The raids were expected to begin in earnest on Sunday July 14, 2019.

What happened?

That date has come and gone, without the expected nationwide show of force.  There were no large-scale raids with weapons ...

US Immigration and Customs Enforcement (ICE) has broad authority to investigate and enforce Form I-9 compliance, but employers have rights and responsibilities, too.  Understanding these rights and responsibilities is critical to surviving an ICE worksite enforcement investigation.

Employers cannot hire workers who are unauthorized to work in the United States and must verify the identity and employment eligibility of employees through the Form I-9 verification process.  Forms I-9 must be retained for three years after hiring or one year after the employee’s last day of ...

On April 3^rd, U.S. Immigration and Custom Enforcement’s (ICE) largest worksite compliance operation hit the private company CVE Technology Group (CVE) and four of CVE’s staffing companies in Texas.  ICE executed criminal search warrants and arrested approximately 280 CVE employees who, according to ICE, were working unlawfully.  Each arrested employee will be fingerprinted and processed by ICE for removal from the United States.  Approximately 200 ICE officers took part in the raid, including manning busses to remove the alleged unauthorized workers and patrolling the area ...

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Effective January 1, 2018, AB-450, which was signed into law by Governor Jerry Brown on October 5, 2017, imposes the following requirements on public and private employers in California:

• Except as otherwise required by federal law, an employer or other person acting on the employer’s behalf is prohibited from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified
• Except as required by federal law, an employer or other person acting on the employer’s behalf is ...

This week, Tom Homan, acting Director of the Immigration and Customs Enforcement (ICE), announced that he has instructed Homeland Security Investigations (HSI), the investigative branch of ICE, to quadruple the number of worksite inspections.  Danielle Bennett, spokeswoman for the agency, confirmed this directive and added “ICE’s worksite enforcement strategy continues to address both employers who knowingly hire unauthorized workers and the workers themselves.”

What does this mean for U.S. employers? This means that employers should expect to see increased HSI visits during which HSI will conduct not only I-9 audits to ensure that employers are complying with established employment eligibility verification requirements, but also other investigations related to compliance with immigration and labor regulations.

U.S. Citizenship & Immigration Services (“USCIS”) is scheduled to release a revised Form I-9, Employment Eligibility Verification, on July 17, 2017. The previous version, dated 11/14/16 N, remains valid, but only through September 17, 2017. On September 18, 2017, employers must use the new form.

The new form changes the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, the Immigrant and Employee Rights Section.  In addition, several key changes have been made to the List C, Acceptable Documents to Prove Employment ...

Donald Trump’s statements about the U.S. immigration system were a main feature of his presidential campaign. Now that he has been elected, many are questioning whether and how those statements might become actual policies. We have already begun fielding questions from clients asking how new policies, regulations and laws will affect their businesses, their employees, their families, and themselves.

After more than 15 years since the statutes were enacted, the U.S. Department of Homeland Security will finally publish its proposed regulations implementing the American Competitiveness in the Twenty‑First Century Act of 2000, known as “AC21,” and the American Competitiveness and Workforce Improvement Act of 1998, known as “ACWIA.”

Last month, the Homeland Security Investigation Worksite Enforcement Unit of Immigration & Customs Enforcement (ICE) announced a significant change in policy regarding use of electronic I-9 software.

Many such systems integrate data from other HR databases in order to prepopulate information on Section 1 of Form I-9, the section employees fill out during the employment eligibility verification process.

In an April 11, 2013, meeting with the Verification and Documentation Liaison Committee of the American Immigration Lawyers Association (AILA), ICE has now confirmed its ...

On March 8, 2013, USCIS issued a major revision of its Form I-9 Employment Eligibility Verification form, pursuant to a Federal Register announcement.

The newly revised Form I-9 adds data fields, including the employee’s foreign passport information, telephone and email address; improves and expands the form's instructions (now six pages); and revises the form layout to two pages, one for the employee and one for the employer.

Employers should begin using the new Form I-9 immediately, but are required to use it beginning May 7, 2013.  On that date, all prior versions of Form I-9 – ...

On October 5, 2012, U.S. Immigration and Customs Enforcement (“ICE”) issued additional criteria  for determining when individuals who are in committed, long-term, same-sex partnerships may avoid removal (i.e., deportation) from the United States.  According to the memorandum, the following factors are relevant (though not sufficient) in exercising favorable prosecutorial discretion:

• The partners are each other’s sole domestic partner and intend to remain so indefinitely;
• The partners are not in a marital or other domestic relationship with anyone else; and
• The ...

The Department of Homeland Security (DHS) has removed the remaining countries from the National Security Entry-Exit Registration System (NSEERS). Under NSEERS, nationals of certain predominantly-Muslim countries were required to register with DHS, and have their fingerprints and photographs taken by immigration officials. Newer systems, including the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT), are able to record the arrival and departure of foreign nationals visiting the United States, making the use of NSEERS redundant. DHS has ...

DHS announced the expansion of the E-Verify system with regard to new hires presenting US passports and passport cards during the I-9 process identification and employment eligibility process.  This new enhancement allows employers to instantly verify the validity and authenticity of US passport and passport cards, and is intended to strengthen the ability to detect fraudulent documents.  According to DHS, 10% of employees subject to E-Verify present US passports for I-9 purposes.

U.S. District Judge Susan Bolton has enjoined the state of Arizona from implementing key provisions of its anti-immigrant law, which is set to take effect at midnight tonight.  Calling it a "substantial likelihood" that the law would lead to "wrongful arrest" of legal resident aliens, Judge Bolton ruled the State may not require police officers to check the immigration status of people they stop for other violations until courts decide whether the provision is permissible.  She also ruled the State may not require immigrants to carry immigration documentation or prohibit ...

Immigration and Customs Enforcement (ICE) announced that it has increased the number of state and local law enforcement officers authorized to enforce the nation's immigration laws under its 287(g) program, bringing the total to 1,200.  Under this program, ICE has the authority to train state and local law enforcement officers on immigration law, intercultural relations, and how to use Department of Homeland Security (DHS) databases to help positively identify criminals and immigration violators.  Twenty-six officers from eight states received training in accordance with a ...

The USCIS has issued guidance to users of its eVerify system with regard to the "hire date" for new employees.  If the E-Verify record was created before the employee began working for pay, the E-Verify hire date is the date the case was created in E-Verify; if the E-Verify record was created on or after the employee began working for pay, the E-Verify hire date is the date the employee began working for pay.  Employers working under federal contracts containing the FAR E-Verify clause and are creating E-Verify records for existing employees must use the original dates those employees began ...

In recent months there have been multiple reports that some H-1B workers arriving at Newark Liberty International Airport in New Jersey have been questioned extensively by U.S. Customs and Border Protection (CBP) officers about their employment in the United States.  In some cases H-1B workers have been refused entry and/or had their visas cancelled.  CBP headquarters has since confirmed that most of these incidents occurred as part of an enforcement action involving companies that are under investigation for immigration violations, presumably involving fraudulent H-1B petitions or inadequate documentation.  Based on the types of questions being asked by CBP, there are also indications of increased scrutiny of H-1B workers who are employed by consulting firms, based on the January 2010 Neufeld memo discussed in our previous blog entry Indian nationals who are employed by consulting firms appear to be the primary targets of these enforcement efforts.

On November 19, 2009, U.S. Immigration and Customs Enforcement (ICE) announced it would serve 1,000 Notices of Inspection on U.S. employers whose business activities affect "critical infrastructure" (i.e., public safety and national security).  ICE agents will review I-9 forms, which all U.S. employers must use to verify employees' identity and U.S. work authorization.

On September 28, 2009, DHS again extended the deadline for states to request an exemption from compliance with the REAL ID regulations, this time from October 11, 2009 to December 1, 2009.  The REAL ID Act of 2005 prohibits Federal agencies from accepting a driver's license or personal identification card for any official purpose unless the license or card has been issued by a State meeting the requirements of the Act.  In 2008, all States requested an extension of the original May 11, 2008 compliance date, and are now required to comply by January 1, 2010 unless an additional extension ...

US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented ...

On September 8, 2009, U.S. Citizenship and Immigration Services published additional guidance for contractors subject to FAR E-Verify. 

On September 1, 2009, four business associations filed in federal court for an emergency injunction to delay the implementation of the new E-Verify requirement for certain federal contractors, which will become effective on September 8, 2009, under the Federal Acquisition Regulation (FAR).   Check back for updates.

UPDATE:  The U.S. District Court for the Southern District of Maryland denied the injunction filed by the business coalition led by the U.S. Chamber of Commerce; however, an appeal will be filed with the Court of Appeals for the 4th Circuit.  Until a decision is reached, the ...

Under the Federal Acquisition Regulation (FAR), September 8, 2009, is the effective date for certain federal contractors to begin using E-Verify to confirm that their employees are authorized to work in the United States.  Although the new rule will apply to many federal contracts, there are broad exemptions and limitations.

U.S. Citizenship and Immigration Services (USCIS) has engaged outside contractors to conduct thousands of site visits to petitioners, including companies that have sponsored employees in H-1B, L-1 or O-1 status.  Typically, the site visits are conducted after approval of the petition.  The investigators may arrive unannounced at the work site, or call the company ahead of time to plan a time to visit the company office or facility.  According to information provided by one such investigator, the purpose of the site visit is to verify that the company is a real operating business ...

The US Citizenship and Immigration Services (USCIS) has issued a new Form I-9 that employers must use as of April 3, 2009.  Under the Immigration Reform and Control Act of 1986 (IRCA), employers must complete Form I-9 for each new employee within three days of hire, and retain the form in the event of governmental investigations.  Employers can be fined for failing to complete the forms properly and for knowingly employing unauthorized workers.  

The DOJ's Office of Special Counsel has released "Do's and Don'ts" guidance for companies participating in the eVerify program.  eVerify is a voluntary program for employers to verify the identity and work eligibility of all new hires.