immigration – Workforce

February 26, 2020July 24, 2024

Immigration update: Employers must use a new I-9 form for 2020

The federal government recently released an updated Form I-9, and although employers aren’t required to use the new version until May 1, 2020, best practices dictate that they should start using it immediately. The Form I-9 verifies the identity of new hires and ensures they are authorized to work in the United States, and it is the first update from the United States Citizenship and Immigration Services in a few years.

With this recent announcement, employers should take immediate steps to ensure compliance with the new form — or risk financial penalties.

Minor, but important changes

There has only been a subtle change to the form itself. Specifically, USCIS revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North, because those countries recently announced name changes.

This change is visible only when completing the fillable Form I-9 on a computer. The paper version of the new I-9 will look identical to the current version dated July 17, 2017.

However, changes to the form’s instructions are more substantive:

Updated website addresses and other contact information: The instructions no longer contain contact information for the Immigrant and Employee Rights Section of the Department of Justice.
Clarification as to who can act as an authorized representative on behalf of an employer: The instructions make clear that employers can designate “any person” to complete and sign Section 2 of the I-9 on the employer’s behalf. The instructions also make clear that the employer, not the authorized representative, is liable for any violations committed in connection with the I-9. The lesson here is that while you may choose anyone to serve as an authorized representative, choose carefully and make sure they understand how to correctly fill out Section 2.
Instruction that employers who enter information in Section 2, List A should not enter N/A in Lists B and C (and vice versa).
Updates on the process for requesting paper Form I-9s (as an alternative to printing them from the USCIS website) and an updated Department of Homeland Security Privacy Notice.

Begin using new form immediately

Although employers can continue using the previous Form I-9 through April 30, 2020, it makes sense to scrap the use of the July 17, 2017 version and begin using the updated version right away. Employers should recycle all older blank versions they already have printed and instruct their hiring managers and human resources representatives to download the new Form I-9 for use with new hires going forward.

On May 1, 2020, all employers will be required to use the revised form, so they should avoid any delay and begin using the new version immediately. It’s important to remember, however, that they should not require current employees to fill out the new I-9 form. Rather, they should use the new Form I-9 only for new hires moving forward.

Also read: 3 ways HR leaders can stay ahead of changing immigration policies

Non-compliance can be costly

Although the changes to the Form I-9 and its instructions are slight, failure to use the new form and comply by the May 1 deadline can result in large fines. I-9 audits have increased threefold in recent years (from 1,360 to 5,981 per year), while worksite investigations have increased even more dramatically (from 1,691 to 6,848 per year).

Potential fines are also increasing — paperwork violation fines can now range between $230 to $2,292 per employee. Civil penalties for knowingly hiring or employing unauthorized workers currently range from $573 to $4,586 per employee for the first violation. Second- and third-violation civil penalties can range between $4,586 up to $22,972 per employee. Arrests and criminal convictions for knowingly hiring or employing unauthorized workers are on the rise as well.

Conclusion

It is unlikely that the Trump administration will slow down DHS’s employer-driven immigration compliance mechanisms. Based upon recent actions from the administration to increase enforcement and hire more ICE agents, along with statistics demonstrating significant increases in I-9 audits and worksite investigations, it is increasingly likely you could face enforcement actions in the form of ICE audits, workplace raids and employee detention. Accordingly, now is the time to review your I-9s and your compliance policies to minimize exposure should the government show up on your doorstep demanding to see your I-9s.

Also read: Do you know what to do if ICE shows up at your business?

June 6, 2019June 29, 2023

Will President Trump’s Merit-Based Immigration Proposal Provide H-1B Visa Relief?

Immigration reform and H1B visa programs

Last month President Donald Trump announced his desire to implement a new merit-based immigration system.

He did not put forward a detailed proposal, but instead described his proposal in broad strokes. The president emphasized that his goal is to change the make-up of U.S. immigrants, envisioning a points system that would provide more green cards to highly skilled, highly educated and younger immigrants, and reducing immigration based on family relationships.

While he did not mention many specifics, the president’s proposal bears a striking similarity to the RAISE Act, an immigration bill introduced into the Senate in 2017 by Sens. Tom Cotton, R-Arkansas, and David Perdue, R-Geaorgia. Trump praised the RAISE Act when it was initially introduced in the Senate, but the bill died in Congress.

The RAISE Act would have reduced total U.S. immigration by approximately half and included a points-based permanent immigration system which placed high numeric values on advanced education and extraordinary achievement.

According to the system proposed in the RAISE Act, although an immigrant would score more points with a U.S. job offer, U.S. employers would not be able to sponsor new hires or existing employees for green cards. The point value would be the ultimate determinant in whether a person would be able to secure permanent residence in the U.S.

In light of the president’s emphasis on increasing immigration of highly skilled workers, one might assume that his plan envisions higher numbers of temporary work visas for educated and highly skilled foreign nationals. However, neither the president’s recent proposal nor the RAISE Act included any discussion of temporary work visas such as H-1B or L-1 visas.

Further, the president laid out his proposal as just that: a proposal. The changes he would like to make are significant and such a radical departure from current law that most of them would have to be implemented in new immigration legislation. This is not likely to occur anytime soon as it would require bipartisan consensus.

In light of the fact that Congress would need to pass new immigration legislation to implement the president’s immigration vision, recruiters and hiring managers who rely on foreign talent to fill open requisitions should not expect to see increases to the H-1B visa numbers in the near term.

Further, since Trump has taken office, U.S. Citizenship and Immigration Services denials and requests for additional evidence in H-1B visa cases have risen significantly, reflecting the president’s desire to protect the American workforce, as spelled out in his April 2017 Executive Order, “Buy American, Hire American.”

Employers sponsoring H-1B visas should be prepared for the possibility of longer processing times between filing and ultimate approval of petitions, and should budget for potential additional legal fees.

May 22, 2019June 29, 2023

3 Ways HR Leaders Can Stay Ahead of Changing Immigration Policies

Listen to an intense conversation among people-management professionals these days and there’s a good chance the discussion will include immigration.

Organizations are constantly subject to changing regulations and high-stakes political developments affecting the growing global workforce, making immigration a huge pain point, surpassing even costs as a concern in some quarters.

Global uncertainty, changes in H-1B visa availability and countless other immigration-related factors make worldwide recruiting increasingly complex. At the same time, historically low unemployment, widening skills gaps, an aging workforce and the desire to be more diverse and inclusive to compete effectively in a global economy have increased demand for foreign-born workers.

U.S. Census Bureau data show that about 17 percent of the workforce is foreign-born, and without international migration, nearly 45 percent of the nation’s population would be in shrinking regions, with economic concerns related to population decline.

Without an influx of immigrants, the total U.S. population of working-age adults is expected to decline over the next 20 years. It’s clear that HR professionals need a way to prepare for a changing immigration landscape to recruit the talent they need. Here are three tips on how to be prepared.

Build broad support for a diverse workforce. Organizations pursue diversity and inclusion initiatives for a variety of reasons, including a desire to improve employee morale, a sense of social responsibility, greater internal parity and a drive to appeal to a diverse customer base. In addition to these worthy objectives, a growing body of evidence suggests diversity improves performance and competitive standing.

A Barron’s article published earlier this year cites two studies demonstrating diversity’s value. The studies found gender diversity improves investment performance from 4 to 10 percent—and diverse leadership teams outperformed peers on profitability by 21 percent, and on value creation by 27 percent.

Building broad support for a diverse workforce across the organization is critical, not only for gaining buy-in for corporate diversity and inclusion initiatives, but also to prepare for changes in immigration regulations which make recruiting more expensive and time-consuming. With a strong commitment to diversity, company leaders are more likely to allocate the necessary resources.

Stay current on trends and events by following industry sources. Most HR professionals have enough on their plate already and struggle to find time to research immigration policy proposals and keep close tabs on political developments which may affect employment-based immigration programs. This is especially true for those who manage large, global workforces.

One way to stay up to date without investing an inordinate amount of time in research is to follow a variety of industry sources for immigration policy news. In some cases, sectors adjacent to employment-based immigration might spot trends before HR outlets identify an emerging pattern and alert their readers and followers. Immigration law associations frequently provide a roundup on the status of proposed regulations and court cases impacting employment-based immigration.

Prepare policies and workforce strategy for changes. A Pearl Law Group survey conducted last year found 68 percent of employers felt their strategic talent planning has been impacted by recent immigration changes. That’s unlikely to change as long as immigration remains a polarizing political issue around the world. HR leaders who acknowledge uncertainty is the new normal can be more prepared than their peers who are caught off guard by changing immigration regulations. Engaging in what-if scenarios and preparing for likely contingencies can put forward-thinking companies ahead of competitors in the war for global talent. For example, exploring remote working policies can expand the pool of available employees to include offsite candidates who can be a part of the team without relocating. HR can also work closely with counsel to develop policies to address possible scenarios, such as the judicial extension of the DACA program and changes in H-1B visa administration.

A recent National Foundation for American Policy analysis underscored the scope of the challenge HR professionals face on immigration, reporting on a recent spike in visa denials in the United States. The denial rate for visa extensions rose from 4 percent in 2016 to 18 percent in the first quarter of 2019. Over that same time, rejection rates for visa petitions rose from 10 percent to 32 percent.

These changes are happening against a backdrop of a decrease in the number of visa applicants and independent of specific changes in policies or laws. That emphasizes the need for HR professionals to proactively address employment-based immigration policies.

By building a commitment to a diverse workforce, staying informed on trends, and gaming out possible scenarios and strategies to future-proof policies, HR leaders can stay ahead of the curve in a rapidly changing environment.

Peggy Smith is president and CEO of Worldwide ERC. A frequent keynoter and panelist at mobility and HR-related conferences, Smith shares her thoughts on global workforce issues, talent and skills shortages, multigenerational workplace considerations and future mobility strategy.

October 10, 2016June 29, 2023

5 Ways to Manage the Workplace Immigration Process

WF_1016_LEGAL_ImmigrationImage_302 — Employers must follow Form I-9 rules for all employees regardless of national origin, citizenship status or immigration status.

Whether immigration becomes more restrictive or expansive following the November general election, the next administration will most likely continue to encourage workforce investigations of Forms I-9 and employers’ enrollment in E-Verify.

Federal law requires employers to follow Form I-9 rules consistently for all employees regardless of national origin, citizenship status or immigration status.

Here are some tips to help employers answer questions that might arise during the hiring practice that could otherwise lead to discrimination.

Avoid unlawful pre-screening before an offer of employment is accepted.

Employers are prohibited from using the Form I-9, E-Verify, and/or the Social Security Number Verification Service to pre-screen employment candidates to determine whether they are authorized to work. The Form I-9 should only be completed after an offer of employment has been made and accepted. Employers also are not permitted to use E-Verify until the Form I-9 has been completed.

E-Verify was designed to help employers identify fraudulent documents and establish a lawful workforce, but E-Verify is limited and is not a safe harbor for employers. An E-Verify query against an employee can result in a tentative non-confirmation even if the employee is a U.S. citizen with the right to work in the United States. Employers should never automatically assume that someone is unauthorized solely on the basis of a tentative non-confirmation. Employers should provide an employee with a chance to attempt to correct the issue in E-Verify consistent with E-Verify rules before ever considering whether termination of employment is warranted.

If employers want to determine whether a job applicant requires sponsorship for work authorization, the Department of Justice’s Office of Special Counsel has stated that the following language is appropriate to ask prior to hire: “Are you legally authorized to work in the United States? Do you now or in the future require sponsorship for employment visa status?”

Inquiring about status to determine whether an export license is required.

U.S. citizens and nationals, refugees, asylees (a person who is seeking or has been granted political asylum) and recent lawful permanent residents are protected from citizenship status discrimination. These individuals are also considered “U.S. persons” under the Export Administration Regulations and the International Traffic in Arms Regulations, and do not require an export license.

“Non-U.S. persons” who will be exposed to sensitive information may require an export license in accordance with U.S. export controls laws. Employers who sponsor foreign nationals for a work visa must also attest as to whether an export license is required.

The Department of Justice’s Office of Special Counsel indicated that questions about citizenship and immigration status that are asked to all new hires and candidates for positions that are subject to export control laws are not likely discriminatory if the employer’s sole purpose is to determine whether an export license is required because of the position.

If employers ask these questions to influence a hiring decision or to determine whether the scope of work should be limited, they could be deemed discriminatory.

Require all personnel who complete Forms I-9 to undergo ongoing training to prevent discriminatory practices during the I-9 completion process.

The Form I-9 must be completed for every employee hired after Nov. 6, 1986. Officials announced that a new Form I-9 is being introduced this year to include “smart I-9 features,” such as help text and tools to facilitate data entry.

During the I-9 completion process, employers cannot legally request specific documents or too many documents from employees. Employers should present the list of acceptable documents to an employee so that the employee may choose whether to present a List A identity and work authorization document, or a combination of both a List B identity document and List C work authorization document.

Employees are only required to present a valid and original document. Improper rejection of valid documents could be deemed discriminatory.

Establish protocol to address fraud.

Employers should have a written policy with instructions to employers about what to do if an employee admits to previously presenting fraudulent documents to complete the Form I-9. An employer is not required to terminate employment unless it is the employer’s policy to do so where an employee admits to previously committing fraud and then presents an alternative valid document showing work authorization. The employee may continue working so long as alternative documentation is presented that appears genuine and related to the employee. On the other hand, an employer may decide that fraud will not be tolerated under any circumstance. Whatever the employer decides, the critical issue is that the policy be applied consistently.

Compliance audits should be carefully carried out to avoid the appearance of discrimination.

Employers should carefully plan the timing and scope of an audit to ensure that the audit is not perceived as unfairly targeting a specific group of employees. For example, an internal audit should not be limited to employees of one specific national origin. During a compliance audit, employers review historical Forms I-9 and, if attached, copies of documents presented during the I-9 completion process. During this process, if an employer reviews the photocopies of documents and determines that the validity of the documentation is questionable, then an employer must proceed cautiously.

In addition to complying with immigration law, employers must be careful to comply with anti-discrimination laws and export control laws. Due to the complexity of the laws, employers should obtain training and seek immigration counsel when creating their immigration policies.

Avalyn C. Langemeier is a partner with Foster LLP. Kari Blackman is a senior associate with Foster LLP. Both practice employment-based immigration law in Houston.