Immigration

Subscribe to Immigration

Assembly Bill 450, signed by Governor Brown in October of 2017, is effective this month. It imposes several new immigration-related responsibilities on California employers with respect to worksite enforcement actions and compliance with the requirement under federal law to complete and maintain the Employment Eligibility Verification form (aka “the Form I-9”) for employees.

What employers need to know about the new law:

  • It affects public and private employers;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor unless they provide a judicial warrant;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to access, review, or obtain an employer’s employee records without a subpoena or judicial warrant. However, there is a carve out in the law for the Form I-9 when Immigration and Customs Enforcement (ICE) agents present a Notice of Inspection (NOI).  Please note that an administrative agency such as ICE can issue subpoenas, meaning subpoenas are not always issued by a court;
  • Employers must provide notice (within 72 hours) to employees and if applicable their union representative, of any Form I-9 inspection by ICE as well as any other inspections of employment records conducted by an immigration agency;
  • Following up on above notice requirement to employees and their union representative, the new law has additional disclosure requirements which must be followed by an employer when requested by an affected employee.  Namely, an employer must, upon request, provide a copy of the NOI and any follow up documentation describing deficiencies identified as a result of the inspection by ICE (typically this would be the Notice of Suspect Documents or Notice of Discrepancies, both issued by ICE);
  • It limits re-verification of employees employment authorization unless specified by federal immigration law; and
  • Allows for civil penalties for non-compliance ranging from $2,000 – $10,000.

All of which is to say that employers in California should have a plan in place to address worksite enforcement actions by ICE agents so as to ensure that agents are not allowed access to nonpublic areas of a place of employment unless they provide a judicial warrant allowing such access.  This plan of action to address office visits by ICE isn’t limited to California employers. As a general rule employers should have a plan in place that when ICE agents arrive at a place of employment to deliver a NOI they are escorted to a private conference room or office and the NOI is handled by a manager or supervisor.  The NOI is the document that starts an administrative worksite enforcement action by ICE and by law, employers are provided with three business days to provide ICE with the Forms I-9 and other documentation listed in the NOI. Employers should train personnel to never waive the three business days requirement to provide ICE with the Forms I-9.  Also, train personnel to not allow ICE agents to interview employees short of a warrant. Finally, as a general rule employers should not handle worksite enforcement investigations without the assistance of legal counsel, especially in the current environment that will focus more heavily on penalizing employers for their failure to comply with the immigration requirements to hire and maintain a legal workforce.

Any questions about California’s new immigration law or ICE worksite enforcement actions please do not hesitate to contact me at montserrat.miller@agg.com.

Employers take note that a new Form I-9 has been issued by the Department of Homeland Security. The Form I-9 was released July 17 and will be effective September 17, 2017.  Meaning, all employers must use the new version of the Form I-9 no later than September 18, 2017.  As of that date, prior versions of the form will not be acceptable.

In a nutshell the revised Form I-9 will (i) update List C to reflect the most current version of the certification or report of birth issued by the Department of State; (ii) make a change to the form’s instructions to remove “the end of” when describing the day on which Form I-9 completion is required; and (iii) make a revision to the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to call it by its new name, the Immigrant and Employee Rights Section (IER). To read more about the changes please click here and see bullet point #4 and click here.

To view the Federal Register announcement click here.

Any questions please don’t hesitate to contact me – montserrat.miller@agg.com.

 

As my readers know, my legal practice covers advising organizations on both compliance with the Fair Credit Reporting Act as well as the Immigration and Nationality Act.  Background screening and immigration.  In the end, both federal laws address employee onboarding issues related to work authorization and background checks.

In addition to writing my (almost) weekly Compliance News Flashes, over the past few months I’ve written a series of bylines for different publications focusing on immigration-related worksite enforcement and how employers can protect themselves regarding their compliance with the employment eligibility verification requirements (i.e., the Form I-9). To facilitate compliance I thought it would be helpful to include these articles, as well as articles I’m quoted in along with a free webinar, in one blog posting with links.

Bylines:

  • The Record-Keeping Mistake You Could Be Making published in Construction Business Owner — “The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization. Proper completion of the Form I-9 is especially important in the industries with large workforces, given today’s environment. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.”
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in QSR Magazine — In an article published by QSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in FSR Magazine — In an article published by FSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Strategies to Maintaining a Legal Workforce as Concerns about Increased Worksite Enforcement Increase published in Georgia Contractor — see pages 30 and 31.

Quoted in:

“Get Ready for More Immigration Audits,” Human Resource Executive Daily

In an article published by Human Resource Executive Daily on June 5, 2017, Montserrat Miller discusses immigration enforcement in the United States and how employers should prepare. “Make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, and whom to summon for help, including HR leaders and legal counsel,” said Miller.

“Immigration Enforcement Efforts Expected to Increase,” Society for Human Resource Management (SHRM)

In an article published by SHRM on May 18, 2017, Montserrat Miller is featured prominently in an article discussing how immigration enforcement related to the workplace–raids, audits and site visits–are likely to increase under the Trump administration and how audits will focus on visa fraud, not just Form I-9 violations.

Webinars:

In June I did a webinar for the Georgia Restaurant Association entitled Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?  — this free webinar is of general applicability and I encourage everyone to take advantage of free legal advice.

Compliance News Flashes:

If you’re interested in receiving the Compliance News Flashes (latest edition) please email me at montserrat.miller@agg.com. This newsletter provides quick blurbs on compliance issues related to background screening and immigration.

In February I started writing a weekly compliance news flash which is published on Friday.  In April it dawns on me that I should provide this information to all my wonderful readers (thank you by the way). Clearly I was on the slow train on this one.  Regardless, here you go–this week’s compliance news flash which succinctly covers important issues related to employment background checks  and immigration compliance (i.e., Form I-9, E-Verify and Homeland Security workplace investigations).  Prior versions of the Compliance News Flash can be found by clicking here and here and here.  If you would like the news flash to appear in your inbox please send me an email and I will add you to my list — montserrat.miller@agg.com.

Happy reading.

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.

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.

The current version of the Employment Eligibility Verification form (Form I-9) expires today.  I’ve previously posted on my blog here on this topic.  Below notice is from U.S. Citizenship and Immigration Services (USCIS) regarding what to do in light of this expiration date.  Presently, the revised version of the Form I-9 is the subject of a 30 day notice and comment period, following an earlier 60 day notice and comment period.  If you would like to see the “revised” Form I-9 click here .  Hopefully the revised Form I-9 will be available in May.  Note that it will still be a two page document but there are some formatting changes which USCIS hopes will make the form easier to complete.

USCIS Notice:

“Until further notice, employers should continue using Form I-9, Employment Eligibility Verification. This current version of the form continues to be effective even after the Office of Management and Budget control number expiration date of March 31, 2016, has passed. USCIS will provide updated information about the new version of Form I-9 as it becomes available. 

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. To learn more about Form I-9 visit I-9 Central.”