While the issue of “Dreamers” rightly dominates the news, more quietly, a sea change has begun in U.S. policy toward foreign professional workers due to President Donald Trump’s “Buy American, Hire American” executive order. This order, published in April 2017, ordered U.S. government agencies to scrutinize immigration-related regulations and procedures for the express purpose of encouraging the hiring of U.S. workers, causing a dramatic impact on some U.S. employers.
Employers have already seen the net result of this directive, as U.S. government agencies have made the employment-based immigration process more lengthy and uncertain. The Departments of Labor and Homeland Security are also required to devote more time and resources to investigations, site visits and workplace raids. This has
made sound compliance practices critical for any business with foreign citizens on the payroll. Such employers need to do three things to successfully navigate this new landscape.
Challenges to Compliance Programs
First, employers must ensure that their established compliance program can withstand these new challenges. To do that, smart employers will think about taking a top-down and a bottom-up approach.
From the top down, employers should review and evaluate their company’s immigration practices. U.S. regulations for programs like the H-1B visa (in the temporary worker context) and the PERM labor certification process (in the permanent residency context) require employers to give and later document notice to workers at their facilities. Further, H-1B employers must maintain detailed “Public Access Files,” documenting, among other items, that the employer is paying the required wage. These public access files must be available for public or government inspection upon request.
Employers best positioned to succeed in this new climate must also review their company procedures periodically to ensure that the now higher and more restrictive interpretation applied by the government to existing standards and regulations is being met. Immigration counsel also should be retained to ensure that the company is prepared for any compliance audit or investigation.
From the bottom up, employers need to know that their HR and compliance staff have protocols firmly in place for responding to workplace visits from DOL investigators or DHS inspectors. These protocols should be vetted by immigration counsel with expertise in worksite enforcement. Established protocols are critical because the lack of proper protocols results in confusion and possible mistakes. Believe it or not, a stray or uninformed remark from the reception desk made in error can lead to the revocation of an employee’s immigration status and potentially to a broader investigation. A lack of adequate records can result in heavy fines and, in certain circumstances, potentially an employer’s disbarment from the U.S. immigration program for up to three years. Having appropriate protocols in place allows an employer to rest easy, knowing that staff will respond correctly and that the employer will pass any site visit, investigation or audit with flying colors.
Second, smart employers will manage employee expectations more closely. Travel is more complicated now, and routine business visas can take six weeks or more, whereas before they were issued in a matter of days. The same is true for applications to renew existing work permits. Routine extensions, normally approved in two weeks or less using DHS’ premium processing service, now can take up to three or four months if DHS decides to challenge the petition. These challenges now happen with higher frequency and on increasingly questionable legal footing, requiring employers and their immigration counsel to expend more time and resources to respond.
Foreign national employees, as well as the teams and managers who rely upon them, must understand that delays are inevitable and that international travel (including personal trips to visit home) now carries the risk of extensive delays. Unexpected denials of immigration requests may necessitate a change in plans. Lastly, difficulties with immigration may not reflect negatively on the employee or the employer but rather reveal a new, and sometimes misplaced, aggressiveness and higher level of scrutiny from immigration officials.
Willingness to Adapt
Lastly, smart employers must also be willing to adapt to the current climate. U.S. immigration policy is constantly shifting and the standards for adjudication are in flux. As the goal posts seem to be moved ever farther, smart employers will understand that their prior “business as usual” outlook may not garner the same success it did before, and they must be willing to creatively engage this new environment. Access to novel and creative legal arguments, implementing strategic changes in company processes and providing greater education to foreign professionals and their managers may go a long way to securing success and easing trepidation in what are uncertain times.
These challenges, however intimidating, are far from insurmountable. In fact, for most employers, maintaining a diverse workforce, including foreign-born professionals, continues to be an important corporate value and a critical business asset. To succeed, employers must simply apply, in collaboration with immigration counsel, the same vigilance and forethought to their immigration program that would be expected to be applied to any other area of their corporate compliance.
Karen Winarsky is a partner and Justin Russo is an associate in the Atlanta office of Fragomen, Del Rey, Bernsen, & Loewy, where they practice in the area of business immigration law.