In this day and age of “alternative facts” and “fake news,” it seems that rumors spread with speed like never before. Companies turn to their counsel to see if they should panic or sit back and watch the truth unfold. In an effort to correct misinformation, here are some of the most recent employment immigration related rumors, myths and truths reported by the news, our clients, our companies and other colleagues in our professional network.
True or False?
A new regulation has passed that changes the H-1B program so that H-1B beneficiaries (workers) will no longer be permitted to have extensions past the sixth year, regardless of whether an I-140 (Immigrant Petition for Alien Worker—the second step toward lawful permanent residence) has been filed. Therefore, employers should be instructed not to file any extensions past the sixth year for their H-1B employees regardless of whether an I-140 has been approved.
FALSE: As of the date of this article, there has been no such indication that the administration has changed the regulation in AC21, allowing an unlimited three-year extension of H-1B status, should an I-140 petition be approved. The administration discussed the fact that the word “may grant” is used instead of the word “shall” in the regulation, leaving open whether officer discretion may be imposed to disallow an extension. However, no instruction to the Department of Homeland Security has been made; nor does it appear to be something that will be imposed in the near future.
True or False?
Spouses of H-1B beneficiaries with approved I-140 petitions will no longer be permitted to have work authorization. Therefore, employers should be instructed to let go any employee currently in H-4 status who they know has an Employment Authorization Card based on their spouse.
FALSE: While there appears to have been discussion in the Trump administration related to the withdrawing of this regulation, as of February 1, 2018, no steps have been taken to withdraw this regulation, which was originally promulgated during the Obama administration on May 26, 2015.
Further, if an employee has already been verified as having authorization to work through a certain time period, the employer may not discriminate based on the type of work authorization provided to the employer. Through verification and the I-9 process, the employer may only request documentation of eligibility to work. Once verification is made, they may not re-verify unless an expiration of that work authorization is approaching. Attempting to re-verify certain employees and not others without an approaching expiration date could be considered a form of discrimination against those employees.
True or False?
Immigration and Customs Enforcement (ICE) has dramatically increased the number of raids they are performing all over the country and employers should beware that they will be next. Therefore, all employers should re-verify their workers’ status immediately just to be safe.
FALSE: There are two types of tactics that previous administrations used to enforce compliance with immigration laws at the worksite. The first was ICE raids, which really only affected a small part of the workforce but had a large impact on public opinion. The success of this tactic is not from its efficient discoveries of workers without status, but more from the fear spread by the shock factor of hearing about armed federal agents storming into a 7-Eleven and arresting the workers inside.
Another tactic used to discourage illegal employment is an ICE audit. These rarely make the news but can often be much more effective procedurally in that they tend to lead to more discovery of problematic documentation on a larger scale. Audits also require a smaller financial and staffing investment by the government.
It is difficult to know which tactic this administration will favor at this point. However, recently, the ICE website proudly reported that ICE targeted 98 7-Eleven stores and made 21 arrests based on workers who were suspected to be in the United States without legal status. Audit notices were issued to many of the stores.
Regardless of the scare tactic used, employers should beware of being too overcautious at the risk of discriminating against certain foreign workers. Reverification should only be implemented in certain types of cases, such as the expiration of a work authorization document or a verification across the board of ALL employees, not just the few foreign workers who may be on staff.
True or False?
H-1B filings have seen an increase both in Requests for Evidence and an increase in subsequent denials.
Well…I cannot confirm that this is true or false since I am not aware of any actual statistics from United States Citizenship and Immigration Services. That being said, I can confirm what I am seeing and what many of my colleagues are discussing, which is that we have all received a lot more requests for evidence than in past years, many times asking for the same items we had included in the initial petition (a productive use of USCIS resources).
Another request that has become commonplace is to require the employer to justify the Skill Level of the worker (Skill Level ultimately determines the pay of the worker). The problem with this line of inquiry is that the Skill Level determination (and thereby the pay) is not within the USCIS’ jurisdiction. Rather, it is the Department of Labor’s responsibility. The responsibility of USCIS in this regard is to determine only whether a certain job would require a four year degree in a discipline related to the occupation. Ultimately, when this point is made, an approval will often be issued. However, unaware employers will have a problem maintaining their H-1B workers.
The bottom line is that USCIS’ duplicative requests and overreaching is the unfortunate consequence of the implementation of President Trump’s Executive Order, “Buy American, Hire American.”
I hope this article has not successfully achieved this administration’s apparent goal of both confusing and scaring you from sponsoring foreign workers.
Dara Berger’s practice is focused on immigration law, assisting companies, big and small, families and those in removal proceedings. She is the current chair of the Immigration Law Section of the State Bar of Georgia.