Immigration Compliance Changes for Employers in 2017

ISSUE: 

Highly Skilled Workers: The Department of Homeland Security issued a new regulation on January 17, 2017 for highly skilled workers. The new rule changed the way certain Employment Authorization Document (EAD) applications are adjudicated, eliminating the 90-day processing rule but allowing Adjustment of Status applicants to continue working based merely on a timely filed pending EAD renewal. In contrast, H-4 and L-2 EAD applicants are required to file their EAD renewals in time to receive the new EAD before the old one expires. Practically, this means H-4/L-2 EAD applicants must now file their EAD renewal applications 5-6 months in advance to avoid a gap in work authorization. The new rule also provides a 60-day grace period to certain temporary workers whose employment terminates. This gives employees sufficient time to apply for a change of status, depart the country, or find another employer before their status terminates. It also provides a window of opportunity for a new employer to file the necessary paperwork for an incoming employee before they run out of status. Finally, the new regulation clarifies the eligibility rules for H-1B exempt organizations.

Presidential Travel Orders for Certain Foreign-Nationals: On December 4, 2017, the U.S. Supreme Court allowed the third presidential proclamation restricting admission to the United States for certain foreign-nationals to go into effect. The proclamation temporarily restricts travel to the United States by citizens of Chad, Iran, Libya, North Korea, Yemen, Syria, Somalia and Venezuela. The restrictions vary by country and can be found here on the U.S. Department of State's website (https://www.dhs.gov/news/2017/09/24/fact-sheet-president-s-proclamation-enhancing-vetting-capabilities-and-processes). The rules surrounding visa issuance and subsequent admission in the country for individuals effected by the travel restrictions can be complicated and are subject to continuing changes. 

Status of DACA Program: On September 5, 2017, the Trump Administration announced a scheduled repeal of the Deferred Action for Childhood Arrivals (DACA) program. The program grants work permits to young adults who, as children, overstayed their visas or entered the U.S. without lawful inspection. The program will be phased out on March 5, 2018, by which point Congress will need to create a legislative remedy or else the approximately 800,000 DACA recipients will lose their work permits and protection from deportation.

Immigration Audits, Investigations and Site Visits of U.S. Employers: All immigration-related agencies are expected to increase audits, investigations and site visits of U.S. employers in connection with immigration, I-9 and E-Verify compliance. This includes the Department of Homeland Security, the Department of Labor, and the Department of Justice. Civil fines and in certain limited situations criminal penalties can ensue where non-compliance is discovered.

Read more Insight & Impact from December 2017:

• Labor and Employment Legislative Updates
• Year-End Benefit Reminders
• Nomination of New OSHA Leadership and Changes to the Submission Deadline for Electronic Reporting of Workplace Injuries and Illnesses

IMPACT: In keeping with the new rules governing EAD processing, employers should pay careful attention to make sure that EAD renewal applications are filed in a timely manner. In many cases, this will mean submitting the renewal application far in advance of the expiration date of the current EAD. Failure to do so could result in the employee temporarily losing his or her work authorization while waiting for the renewal to be processed.

When considering a new-hire candidate for visa sponsorship, employers can now take the 60-day grace period into consideration. For example, if a candidate was terminated from his/her last job less than 2 months ago, there could be enough time to quickly prepare and file a change of employer application on behalf of the sponsored employee to preserve his or her immigration status and work authorization. By the same token, if an employer needs to terminate a sponsored worker's employment for any reason, they can do so knowing that the individual may have as much as 60 days of grace remaining on their immigration status after the date of termination. As with any termination, employers are strongly encouraged to consult with legal counsel beforehand.

The repeal of DACA is primarily an I-9/E-Verify issue for employers. To ensure full compliance, employers should have reminders in place to follow up with any employee with an expiring work authorization document, including DACA-based employees. It is critical to be proactive in this respect so as to avoid inadvertent unauthorized employment.   

In this era of extreme vetting and stepped up enforcement, it is imperative for employers to review their immigration paperwork to ensure that it is in full compliance in the event of an audit, investigation or site visit by a government agency. Whether it is I-9/E-Verify compliance files, H-1B public access files or immigration sponsorship files for temporary workers, companies can avoid fines and other penalties by providing frequent training to their HR professionals and conducting periodic inspections of their immigration paperwork.

To view a recent Quarles & Brady webinar discussing The Year in Review: Immigration Compliance for Employers in 2017, please click here.

For more information on managing specific terms of employment agreements, please contact your local Quarles & Brady attorney or:

• Eric Ledbetter: (312) 715-5018 / eric.ledbetter@quarles.com.