Additional Executive Orders (“EO”) are apparently circulating among administration officials, including more related to immigration and one specifically related to business immigration. It is unclear when or exactly what President Trump will sign but one such draft order is entitled “Executive Order—Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The scope of this EO, as presently drafted, will affect foreign worker visa programs (e.g., workers in E, H-1B, H-2A and L status).  It also affects the J-1 exchange visitor program and student visa reform, and orders L-1 site visits.  These are just some highlights of what such this EO could cover.

The focus of this particular EO is to prioritize “the protection of American workers…and the jobs they hold.” The EO requires the Security of Homeland Security to, within 90 days, review all regulations that allow foreign nationals to work in the United States to determine if they are in the national interest or should be rescinded.

Of greatest interest for purposes of this blog is what it says about E-Verify – “within 90 days of the date of this order, submit to the President a list of options for incentivizing and expanding participation by employers in E-Verify, including by conditioning, to the maximum extent allowed by law, certain immigration-related benefits on participation in E-Verify.” Could this mean something akin to the situation where in order for an employee to apply for an extension of their work authorization under STEM OPT their employer must participate in E-Verify?

This E-Verify mandate is in line with then presidential candidate Trump’s “10 Point Plan to Put America First.”  Point #9 was, “Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.”  For this point to be fulfilled, President Trump is pushing for an expansion of the E-Verify program.  Which, by the way, an expansion of E-Verify to make it mandatory is not necessarily a controversial item on Capitol Hill.  I expect that legislation will be taken up this year on Capitol Hill making E-Verify mandatory for all employers in the United States.

Annually my law firm publishes a checklist of legal issues we believe will be relevant in 2017.  To view the list click here.

In no particular order of importance this year’s list includes the following, with brief write-ups by AGG lawyers:

  1. Wage and Hour
  2. Non-GAAP Financial Measures
  3. Ban the Box
  4. EU-U.S. Privacy Shield
  5. Immigration Compliance – Form I-9 and E-Verify
  6. Robust Compliance Programs
  7. Blockchain and Digital Transactions
  8. Cyber Security and M&A Transactions
  9. Online Advertising Practices
  10. Wellness Programs
  11. Tax Reform
  12. The Consumer Financial Protection Bureau
  13. E-Discovery and Defense Costs

Please join me and my colleague, Teri Simmons, for a free webinar on January 24th at noon EST during which time we’ll discuss immigration compliance issues relevant to employers.  We’ll also cover what organizations can expect in 2017 under the new Administration.

Teri and I will cover topics related to the Employment Eligibility Verification form (the “Form I-9”), E-Verify, government investigations and penalties related to the Form I-9, and on-site audits when petitioning for H and L nonimmigrant status.  Click here to register and learn more about the topics we’ll address.

The webinar is pending CLE credit approval by the State Bar of Georgia.

 

Happy New Year!

The (some would say unexpected) results of the presidential campaign have led us down a path where president-elect Trump will be sworn in January 20, 2017.  While the dust is still settling, and will continue to settle over the coming weeks and months, employers should prepare for the potential impact this Administration could have on immigration compliance.  What do I mean by immigration compliance?  I’m talking the new Employment Eligibility Verification form (the “Form I-9”), mandatory E-Verify, and increased government investigations. While today’s hype may be about border security, vetting of refugees, and deporting criminal aliens, I believe immigration compliance is an area that will take on greater importance under this Administration.  I’m doing two (because it’s that important) free webinars with colleagues on this topic and I hope you will join us.

The first one–Understanding the New Form I-9 and the Election’s Potential Impact on Immigration Reform–is sponsored by Equifax Workforce Solutions on January 19, 2017 at noon EST.

Click here to register.

I’ll post information on the second webinar, which will be hosted by my firm on January 24, 2017, at a later date.

If your organization has been using E-Verify for more than 10 years, this posting is for you.  If you are an E-Verify Employer Agent and your cases go back over 10 years, this posting is for you.

U.S. Citizenship and Immigration Services (“USCIS”) must dispose of transaction records that are over 10 years old annually.  The next time they will do so is April of next year. Which means that employers and E-Verify Employer Agents with transaction records in E-Verify dated on or before December 31, 2006 must download these records from now through March 31, 2017 in order to have a record of such.

Historic Records Report Fact Sheet.

Instructions to download the Historic Records Report.

In California, individuals now have a private right of action to bring a claim against an employer who uses the E-Verify program for pre-screening purposes.  They also have a private right of action if an employer does not provide them with the required notices as part of the Further Action Notice (FAN) or Tentative Notice Confirmation (TNC) process.  These are now considered unlawful employment practices under California’s Labor Code.

E-Verify is the electronic employment eligibility verification program maintained by U.S. Citizenship and Immigration Services (USCIS).  It complements the Form I-9, as the employer needs to input information from the Form I-9 into the E-Verify system when creating a case to determine employment eligibility.

Currently, an employer using E-Verify cannot use the program to pre-screen employees to determine if they are employment authorized prior to hiring them. Check pages 8 and 82 of the E-Verify User Manual which states that “Pre-screening [is] the prohibited practice of creating a case in E-Verify before a job offer has been accepted.”   In addition, an employer using the E-Verify system must provide any notices generated as a result of a FAN or TNC to the individual.  To read more about employers obligation to provide E-Verify generated notices such as the TNC, read the E-Verify Memorandum of Understanding  or on USCIS’ website.

Back to California and AB-622 Employment: E-Verify system: unlawful business practices.  The law added Section 2814 to the California Labor Code.  AB-622 was signed by the Governor in October of last year.  In California, what now constitutes an unlawful employment practice has been expanded to include pre-screening of job candidates through use of the E-Verify system and not providing E-Verify generated notices specific to an individual’s E-Verify case.  This means that individuals now have a private right of action, which they can enforce in state court.  And it can result in a civil penalty up to $10,000 for each violation for the employer who is found to have engaged in an unlawful employment practice.

Bottom line — do not use the E-Verify system to pre-screen job candidates prior to hiring them and make sure you provide them with any of the notices generated by the E-Verify system, such as the TNC.

For all you E-Verify nerds (like me) out there, here is the latest on the status of the E-Verify program.  The program is obviously operational and not going away, so don’t stop using it if you are.  But in a technicality, since E-Verify is not a permanent program at this time, it requires periodic “reauthorizations” by Congress.  The current reauthorization, which is provided through a continuing resolution, ends tonight.  The Congress is about to approve another continuing resolution to keep the federal government open and that will include the E-Verify program.  The latest continuing resolution will likely be until December 22.  At which point, the hope is that the 2,009 page omnibus bill will have been signed by POTUS (President of the United States).  Stay with me.  Once the omnibus is signed, it includes language to reauthorize the E-Verify program administered by U.S. Citizenship and Immigration Services until…drum roll….September 30, 2016.

Below is the language which makes this a reality, found on page 707 of the current omnibus text:

E-Verify

It’s that time of the year when employers using the E-Verify program need to act to save their historic records.  Yawn…historic records?E-Verify

To comply with the National Archives and Records Administration’s retention and disposal schedule, on January 1st of each year, U.S. Citizenship and Immigration Services (USCIS) is required to dispose of E-Verify transaction records more than 10 years old.

Important — this means that if you have been participating in the electronic employment eligibility program called E-Verify for more than 10 years, you need to download your company’s Historic Records Report before December 31, 2015. This report will include all E-Verify transaction records for cases more than 10 years old.  Employers will not be able to access in E-Verify cases created prior to December 31, 2005 after January 1st.

Takeaway — if you were using E-Verify on or before December 31, 2005 you need to download the Historic Records Report for transaction records older than 10 years and maintain with your I-9 and E-Verify records.  This will be your only proof from the system that the cases were created in the system.

For more information see the USCIS Fact Sheet and Instructions.

 

 

Hours before the government was due to shut down, the President signed into law a stopgap measure which will fund the federal government through December 11, 2015.   The possibility of a government shutdown would have affected, among other programs, the E-Verify program administered by U.S. Citizenship and Immigration Services (USCIS).     Similar to the 2013 federal government shutdown, which forced USCIS to pull the plug on employers’ use of the E-Verify system due to a lack of government funding, there would have been a repeat situation. 

Passage of H.R. 719 removes the immediate threat of a government shutdown.  For purposes of the E-Verify program, passage of H.R. 719 is noteworthy as not only is the program funded through December 11, 2015, its authorization to exist as a program was also extended until December 11, 2015.  For those keeping close tabs on E-Verify, you will know that congressional authorization for E-Verify expired September 30, 2015.  Negotiations are on-going in Congress to reauthorize the program for a period of 3 to 5 years.

 

On Tuesday the 29th of September, at 2 pm EST, I will conduct a free webinar entitled “I-9 and E-Verify Best Practices for a Legal Workforce”.  The webinar is directed to HR professionals and others involved in the new hire onboarding process as well as the continuing employment of individuals.  The webinar will provide practical tips on completion of the Form I-9, including the handling of remote employees, and use of the electronic employment eligibility verification system, known as E-Verify.  It will explore common errors when completing the I-9 and consequences of non-compliance with immigration laws and regulations.

Accurate Background will host the webinar – thank you Accurate Background.  You can register by clicking here.

Oh, and did I mention it’s free!  I hope you will join us.