Are Your Form I-9’s in Order?
Recent Changes in Immigration Policy and Enforcement Suggest They Should Be
In 2017, employers have faced executive orders on immigration, new and enhanced green cards, and a budget proposal to make E-Verify a national requirement for employers. These recent changes in immigration and enforcement policies leave many employers with questions about how business practices will be impacted now and in the future. Here is a summary of some of these changes and their potential impact on employers.
“Buy American and Hire American” Executive Order
On April 18, President Trump issued the Presidential Executive Order on Buy American and Hire American
. Among other things, the executive order provides that the executive branch will “rigorously enforce and administer the laws governing entry into the United States of workers from abroad,” and orders the heads of four federal agencies — the State, Justice, Labor, and Homeland Security departments — to, consistent with applicable law, propose new rules and issue new guidance or, if appropriate, supersede or revise previous rules and guidance, to protect the interests of American workers and to suggest reforms to the H-1B visa process to ensure work visas are awarded to the most-skilled or highest-paid workers.
H-1B visas allow U.S. employers to temporarily employ workers from another country in specialty occupations
. The number of regular H1-B visas for new hires is capped annually at 65,000. An additional 20,000 are available under the advanced degree or masters H-1B exemption. The United States Citizenship and Immigration Services (USCIS) began accepting petitions for fiscal year 2018 on April 3, 2017. On April 7, 2017, the USCIS announced that the 65,000 H-1B visa cap for fiscal year 2018 and the 20,000 cap on advanced degree exemption applications was exceeded and, therefore, it would use a lottery to randomly select the petitions needed to hit the applicable caps, starting with the advanced degree exemption petitions. The USCIS rejected and returned filing fees for all unselected petitions that were not duplicate filings.
According to immigration law experts at Constangy, Brooks, Smith & Prophete, LLP
, because the current process already allots an extra 20,000 slots to the “most-skilled” H-1B workers and existing regulations already require that H-1B workers be paid the “prevailing wage or actual wage” being paid by the employer (whichever is higher), it is unclear what impact the executive order may have for employers in the future.
National E-Verify Process
In March, President Trump issued a budget blueprint, America First: A Budget Blueprint to Make America Great Again
, that included a proposal to invest $15 million to begin implementing mandatory use of the E-Verify program for all employers nationwide. E-Verify is an Internet-based system operated by the U.S. Department of Homeland Security (DHS), in partnership with the Social Security Administration (SSA), that allows participating employers to electronically verify the employment eligibility and Social Security number validity of newly hired employees by cross referencing information on the Form I-9 with records contained in the SSA and DHS databases.
If funded and implemented, this could result in significant civil fines for employers that fail to appropriately comply with verification processes and hire unauthorized employees.
Enhanced Focus on Unlawful Workers and Worksite Enforcement
Another executive order released by President Trump on January 25, 2017, Enhancing Public Safety in the Interior of the United States
, included several directives to re-prioritize immigration enforcement, including:
1) Directs executive departments and agencies to use lawful means to enforce immigration laws and prioritizes removal of those unlawfully in the country who have engaged in criminal or fraudulent activity, including those who have been convicted or charged with a crime or have committed acts that could be charged as a crime, among others.
2) Authorizes (subject to availability of funding and to the extent permitted by law) the U.S. Immigration and Customs Enforcement (ICE) office to hire 10,000 additional immigration officers.
Since execution of the order, there have been numerous news reports about increased worksite enforcement action by ICE. Worksite enforcement actions focus on employers who knowingly hire unauthorized workers and workers who are not lawfully in the United States.
Additionally, ICE conducts inspections focusing on the Form I-9 and supporting documentation, such as payroll records and employee lists, among other items. Failing to comply with Form I-9 verification requirements can be costly for employers, as they can be fined between $216 to $2,156 per form for the first offense.
Employers should ensure adequate training and strict adherence to Form I-9 verification requirements, including reverification requirements. Employers may also implement internal audits of Form I-9’s. ICE has created written guidance
for employers conducting internal audits to help ensure they are conducted consistent with the employer sanctions and antidiscrimination provisions of the Immigration and Nationality Act (INA); however, employers should always work with counsel to ensure their audit processes and overall Form I-9 compliance with the law.
New Green Cards and Employment Authorization Documents
The USCIS announced
on April 19 that redesigned green cards and employment authorization documents (EADs) will be issued starting on May 1, 2017. According to the USCIS, the new EADs and green cards have fraud-resistant security features that make them highly secure and more tamper-resistant. Both cards will display an individual’s photo on both sides and have embedded holographic images, but neither will display a signature. Green cards will have an image of the Statue of Liberty and a predominately green palette, while the EADs will have an image of a bald eagle and a predominately red palette.
According to the announcement, current EADs and green cards will be valid until the expiration date shown on the card. If an individual has an older green card, there may be no expiration date, but the green card remains valid. Therefore, after May 1, employers can rely on both new and existing EADs and green cards for I-9 verification, employment eligibility verification, and E-Verify purposes.
While the legality of some of President Trump’s executive orders related to immigration have been successfully challenged, Form I-9 compliance and enforcement processes are not new. Employers should stay abreast of the above and any coming changes that impact employee eligibility and verification processes. Moreover, employers should work with counsel to ensure they have compliant I-9 verification processes and use the most recent Form I-9