Corporate Immigration Law News

WASHINGTON — U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) announced Tuesday the results of a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

From July 16 to 20, the second phase of the operation, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests. Additional information on this subject can be found on the ICE web site here.

In line with the “warning shot” fired by Immigration and Customs Enforcement (ICE) in its May 14 press release  threatening a two-fold increase in I-9 audits over the summer — as discussed in our May 25 alert — ICE visits and raids on unsuspecting employers in Newark, New Jersey and other jurisdictions designated to have “sanctuary status” across the country, have resulted in a substantial increase in the issuance of Notices of Inspection (ICE subpoenas) leading to a concomitant increase in I-9 audits.  Indeed, ICE is carrying out its promise to throw a hot blanket over the local business community to make a hot summer even hotter. Thus, an employer’s focus on worksite compliance (i.e.; I-9 compliance) has never been more important, especially for businesses in Newark, New Jersey and its surrounding areas, especially those businesses in the labor, manufacturing and food service/packaging industries.

As we close out the month of July and move into August, ICE is actively engaged in a second wave of summer audits, with an overall goal of doubling the number of Notices of Inspection served on employers from 2,281 year-to-date to 5,000 by September 30, 2018. It should also be noted that employer arrests (through the I-9 audit process) are up 91% year-over-year and administrative (alien) arrests are up 255% over the same period. ICE has long term goal to increase the number of ICE audits from 5,000 per year to 15,000 in the coming years.

ICE recently changed the way it calculates civil penalties which, in effect, doubled the amount of fines imposed for I-9 violations. In the wake of those increases, in Fiscal Year 2017, employers were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines. The combination of a substantial increase in the number of I-9 audits and related arrests by ICE, coupled with the doubling of civil penalties assessed, makes this a very credible threat to employers across the United States, but especially those in the labor, manufacturing and food service/packaging industries in sanctuary jurisdictions like Newark, New Jersey.

On that basis, it is imperative for employers to conduct a self-audit of I-9 records and correct any errors or omissions that may be found — once a Notice of Inspection issues, it is generally too late.   By taking affirmative steps now, employers can limit the downside risks associated with an I-9 audit. Here are four steps employers should take now as a self-audit to reduce potential risk and exposure to civil (and possibly even criminal) penalties should ICE make a visit to your business and issue a Notice of Inspection:

1. Gather all I-9 forms in one, centralized location: Employers should have an original copy of the Form I-9 on file for every current employee who performs work for the employer in the United States (who was hired after November 6, 1986).  Under the retention requirements of the I-9 regulations, employers are also required to maintain original I-9 forms for former employees for a period of three years after the date of hire, or one year after the date employment ended, whichever is later. Use payroll records to ensure that you have all I-9 forms required for current employees or former employees – that is what ICE will do once a Notice of Inspection issues!

2. Create a list of current employees for whom you do not have a Form I-9 on file:  Current employees who do not have an I-9 on file will need to be contacted and instructed to bring documentation from List A or Lists B and C of Form I-9 by a date certain.  These Forms should be completed properly and dated contemporaneously – never backdate.

3. Review I-9 forms and correct errors (self-audit): As employers work through each Form I-9, to the extent there are errors, use the USCIS Handbook for Employers to determine how to correct each error. According to the Handbook, the best practice in correcting a Form I-9 is to strike a line through the portions of the form that contain incorrect information, then enter the correct information. The reviewer/auditor should also initial and date the correction.  To the extent errors are found in Section 1 of the Form I-9, the employee (not the employer’s representative) should be instructed to make those corrections, in the same fashion.

4. Purge I-9 forms of former employees who fall outside of the retention requirements:  Destroy all Forms I-9 for former employees who fall outside of the I-9 record retention requirement which is, again, three years after the date of hire, or one year after the date employment ended, whichever is later.  Also, create a spreadsheet of former employees to provide you with an overview of when the business can purge those records.

In addition to conducting an initial self-audit, it is also a good practice to train your Human Resources and/or Recruiting staff and managers on how to properly complete a Form I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S.  It is also a good practice to retain outside immigration counsel to conduct staff trainings and periodic I-9 self-audits.

If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

Two recent policy memos from U.S. Citizenship and Immigration Services (USCIS) will adversely affect the ability of non-immigrant workers (such as H-1B workers) to remain in the United States legally.

USCIS has instructed its adjudicators to deny visa petitions (including extensions of stay) on certain cases without seeking further information or stating a reason for the denial. This will permit USCIS to deny visa petitions without issuing requests for more information (i.e., Requests For Evidence (RFEs) which are becoming more commonplace). In a memo issued on July 13 announcing the change, USCIS said it was intended to prevent frivolous filings and incomplete filings intended as “placeholders.” The memo applies to most visa petitions (e.g., H-1B, L-1, TN-1, O-1), but not to Deferred Action for Childhood Arrivals (DACA) applications.

Such policy memo arose after the publication of another USCIS memo stating that USCIS would start referring people for deportation when it denies a visa petition and that denial leaves the foreign national with no legal immigration status.

These changes are likely to result in more deportation proceedings. This is so because USCIS may start responding to more and more visa petitions by denying them, perhaps resulting in the foreign national being placed in deportation proceedings if his/her authorized stay has expired while the petition was pending.

As a result of the foregoing, the adjudication process of non-immigrant visa petitions is now more unforgiving than ever and employers are cautioned that no petition may be considered routine.

Indeed, the concert of these two memos makes it incumbent for both employers and their immigration counsel to prepare the most thorough non-immigrant visa petition as possible (whether it be a transfer or an extension) and evaluate whether premium processing (at an additional filing cost) is warranted so the foreign national remains in valid immigration status at all times pending final adjudication.

The memos come after a series of other policy changes that scrutinize H-1B petitions for not only H-1B workers who are placed at third party client locations, but also H-1B petitions for many job classifications that previously were not questioned as being specialty occupations (e.g., Computer Systems Analysts, Management Analysts and Operations Research Analysts), making it more difficult than ever for employers to sponsor qualified H-1B workers.

In light of the foregoing, now more than ever, it behooves employers to engage experienced immigration counsel when seeking to employ (or continue to employ) foreign national workers.

If you have any questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.