Immigration in the Workplace – Overcoming Challenges in the New Era of Heightened Enforcement Stephen Davis

Overview of Immigration Topics for Today Key terms in immigration law Best practices to make sure your I-9s are compliant ICE audits and raids: What do you do when ICE shows up? Overview of the Trump Administration’s Executive Orders related to foreign national workers Crystal ball gazing: what to expect in 2019 and beyond

Basic Immigration Terms “Immigrants” vs. “Nonimmigrants” Immigrants/Lawful Permanent Residents are allowed to live and work in the United States without restriction The law presumes that all noncitizens have “immigrant intent,” unless they can prove qualification for a specific nonimmigrant category (such as H-1B) Nonimmigrants are admitted for a specific, temporary purpose

Basic Immigration Terms “Visa” vs. “Status” A “visa” is a stamp in a foreign passport, used for entry into the U.S. Think of this as “permission to enter” the U.S. “Permission to stay” in the U.S. is governed by the I-94 record. The I-94 indicates one’s “status,” which is the purpose and length of the authorized stay.

Common Immigration Documents Passport – Issued by the country of citizenship

Common Immigration Documents Visa Stamp – A stamp in the passport used for entry into the U.S.

Common Immigration Documents I-94 – The record that indicates one’s status (activity/purpose and length of the authorized stay)

I-9 Basics All employees hired since November 7, 1986 must have a completed I-9 Form Three primary steps: Employee completes Section 1 on or before the first date of hire; Employer has three business days after the hire date to review the employee’s original documents and complete Section 2; and Employer fills out Section 3 of the I-9 Form in cases of rehires or when a person’s work authorization expires (for example, an H-1B visa holder)

Best Practices for Completing I-9 Forms Make sure the employee’s start date entered in Section 2 matches the start date in payroll records Do not forget to sign and date Section 2 in the employer certification block Do not tell the employee what documents he or she must provide for I-9 purposes Make sure you always use the current version of the I-9 Form (since they change regularly)

Common I-9 Mistakes The employee forgets to sign and date the I-9 Form in Section 1 The employer forgets to complete Section 2 by the third day of employment The employer does not re-verify employees who have limited work authorization in Section 3 The employer does not have a retention system for the I-9s of terminated employees

How to Correct I-9 Forms Employers may only correct errors made in Section 2 or Section 3 of the I-9 Form If you discover an error in Section 1 of the I-9 Form, you should ask your employee to correct the error by doing three things: Draw a line through the incorrect information; Enter the correct or omitted information; and Initial and date the correction or omitted information If the employee no longer works for the employer, the employer should attach a signed and dated statement to the I-9 Form describing the problem and explaining why the correction could not be made (i.e., the employee no longer works here)

How to Correct I-9 Forms When the employer makes corrections to Section 2 or Section 3 of the I-9 Form, it should follow the same three steps: (1) draw a line through it; (2) make the correction; and (3) initial and date it What if the I-9 Form has several substantial errors and no room for corrections? Complete a new I-9 Form, staple it to the old I-9 Form and include a signed statement about what you did to correct it Depending on the error(s), you may need to call the employee back in to ask for his or her documents again This is ok as long as you do not request specific documents from the employee

Table of Increased Immigration Fines

Increased I-9 Fines The biggest increase involves I-9 violations Fines for I-9 form ‘paperwork errors’ have increased by 96% The government will continue to demand strict compliance with the I-9 process Immigrations and Customs Enforcement (“ICE”) is increasing its audit activities

Preparing for I-9 Compliance What can you do to protect yourself? Train your employees on how to complete I-9 Forms Develop consistent procedures Review their work

Preparing for I-9 Compliance Conduct internal I-9 audit Correcting violations now can help in later ICE audit It can demonstrate good faith and help lower fines Establish onsite audit protocol Have “Team” Understand process/rights

Increased ICE Activity Under President Obama, ICE had 1,000 agents assigned to I-9 audits In 2018, ICE has already conducted 5,200 I-9 audits, which is nearly four times the number of I-9 audits it conducted in 2017 Particular focus on manufacturing, construction and hospitality industries

Increased ICE Audits ICE Audits Starts with Notice of Inspection (NOI) to the worksite Often show up unannounced Ask questions Ask for documents Employer has 3 days to make I-9 forms available

Increased ICE Raids ICE Raids ICE shows up without any advance notice Will speak to employees May have a search warrant May seize documents / evidence on the spot Your employees may exercise their right to remain silent

Buy American and Hire American In April 2017, President Trump signed the Buy American and Hire American Executive Order (EO) Although no regulations implementing the EO have been issued, agencies are making it harder to obtain visas Nearly 100% increase this year in Requests for Evidence (RFE) for H-1B visa petitions These RFEs typically question whether an entry-level job satisfy the requirements of “specialty occupation”

What to Expect in 2019 and Beyond? Increased I-9 raids and audits “Public charge” regulations making it harder for some to qualify for green cards Pending legislation regarding minimum wage and additional protections for H-1B workers Increased scrutiny for nonimmigrant visa extensions USCIS officers must now view H-1B, L-1 and other nonimmigrant visa extensions de novo (i.e., no deference given to the fact of a prior visa approval)

Stephen Davis (256) 512-0101 sdavis@maynardcooper.com Questions? Stephen Davis (256) 512-0101 sdavis@maynardcooper.com