Learn about how government proposals will affect your company, and the new immigration liability landscape for employers under the Trump administration presented by Grant Sovern and Eric Ledbetter.
Immigration Issues for Employers & Employees: The New Immigration Landscape Under the Trump Administration
1. Immigration Issues for Employers & Employees:
The New Immigration Landscape Under the
Trump Administration
2017 ACC-WI CLE | Wednesday, February 22, 2017 | 3 – 4 p.m.
2. Overview of US Immigration System
Three levels of immigration benefits
Nonimmigrant visas
Alphabet soup of visas to enter and stay in the US
Immigrant visas – green cards
May stay permanently, work anywhere, come and go easily
US citizenship
And the 4th group – undocumented
The governmental immigration agencies
3. Nonimmigrant Visas
Stay in the US for a finite period of time
May only do the activity approved by the government
A to V in the alphabet
H-1B, professional workers
L-1, intracompany transferees
F-1/J-1, international students and interns
TN, Canadian and Mexican professionals
B-1/B-2, visitors for business or tourists
O-1, people with extraordinary ability
4. Immigrant Visas—Green Cards
May stay in the US indefinitely
May work/live anywhere, activity not restricted
May travel in and out of the US freely
Only four major ways to get a green card
Family sponsorship by close family member: spouse, parent, child, or sibling
Employer sponsorship, prove no American is qualified for the job
Green Card Lottery (Diversity Visa Lottery)
Asylees, refugees, victims of domestic violence, and others
Can lose green card by committing certain crimes, not paying taxes, or leaving the
US for long period of time
5. US Citizenship
May vote in US elections, serve on juries, qualify for certain security clearances
Once a citizen, the government cannot take it away unless the person lied in the
application process
Three ways to get citizenship
Birth inside the US
Derive citizenship through birth outside the US to US citizen parent
Naturalize to become a citizen after having green card for 5 years (or 3 years if married to US
citizen)
Must take civics and English exam and prove no crimes during 5-year period
6. Immigration Government Agencies
Department of Homeland Security
Citizenship & Immigration Services – grants immigration benefits
Customs & Border Protection – authorize entry to US at borders and airports
Immigration Customs & Enforcement – fines companies and deports people
Department of State
Runs US embassies and consulates around the world
Grants visas to physically enter the US
Department of Labor
Precertification necessary for some work visas and many green cards
Department of Justice – runs immigration court system
7. Trump Executive Orders
Travel ban on people coming from Iraq, Iran, Libya, Syria, Somalia, Sudan, and
Yemen for 90 days
Any connection to these countries will likely create additional screening upon
re-entry to the US after international travel
120-day halt to refugee admissions and indefinitely from Syria
Federal judges in several states have put a temporary stay on portions of this
Executive Order
9th Circuit Court of Appeals stayed the order nationwide
Likely to issue new, more narrowly tailored order
8. Executive Orders on Interior Immigration Enforcement
Executive Orders signed on January 17
Implementation memo released by DHS, which includes provisions to:
Near elimination of parole except in cases of national security or extreme humanitarian needs
Expand 287(g) partnerships with local police to deport more people
Remove privacy protections for immigrants
Hire 15,000 more border patrol agents
Expand deportation priorities to include those accused of crimes, not just convicted and those
who admit to other violations—allow deportation of anyone who is deportable
Increase Expedited Removal (deportation without hearing in front of judge) to anyone in the US
less than 2 years and anywhere in the country, not just within 100 miles of border, and within 14
days of entry
9. Draft Order Regarding Business Immigration
Review all immigration regulations related to business immigration
Propose new parole regulations that likely mean the termination and/or reform of
current parole policies for Deferred Action for Childhood Arrivals (DACA)
Propose new regulations to reform business visa programs to protect American
workers. This is likely aimed at adding more requirements to the H-1B and L-1
processes.
Consider ways to improve the H-1B lottery allocation process
Commence L-1 worksite audits/visits of L-1 employers and L-1 worksites—
eventually add all employment visas (O-1, TN, E)
10. Proposed Order—Continued
Establish an immigration commission to make immigration policy
Propose new regulations to reform F-1/J-1 work options (OPT, CPT, and EADs for
recent college graduates to work as interns)
Clarify (limit) what are acceptable activities in the US on B-1 visas
Reform H-2A, agricultural worker visa program
Incentivize more employers to use E-Verify
Reform the Visa Bulletin and how green cards are made available
Propose new E-2 regulations to conform with current law
Propose new J-1 Summer Work program regulations
11. Senators Durbin & Grassley Bill
Replace the existing H-1B lottery process with priority system that CIS will create,
which would prioritize H-1B petitions with higher salaries and non "H-1B-
dependent" employers
Increase Department of Labor audits/investigations of H-1B employers
Prohibit companies that employ more than 50 percent of their US workforce on H or
L visas from obtaining any more H-1Bs
Change the L-1 program to add a prevailing wage requirement similar to the H-1B,
further restrict L-1B specialized knowledge standards, and add a cap on the number
of L-1s issued per year
12. Representative Issa Bill
Raise "H-1B dependent" exemption to $100k instead of $60k
Discontinue current Master's degree exemption from H-1B dependency
Result: those employers that employ a large portion of employees (usually more
than 15 percent) on H-1B visas must advertise and prove there are no Americans
available for the job anytime the salary is less than $100k
13. Representative Lofgren Bill
Increase H-1B prevailing wage requirements by eliminating the Level 1, entry-level
prevailing wage
Instead of H-1B lottery, select petitions with highest salaries first
Replace the green card allocation system to be first-come, first-served, instead of
the current system where employees from China, India, Mexico, and Philippines
wait up to 10-15 years longer
Similar to Issa's bill, raise the wage at which an H-1B dependent employer would be
exempt from the recruitment requirement to $130k, and eliminate the Master's
degree exemption
Set aside 20 percent of the 85,000 new H-1B visas for start-up companies with
fewer than 50 employees
14. Bar Removal of Immigrants Who Dream and
Grow the Economy Act: Senate & House
Senators Graham (R-SC), Durbin (D-IL), Murkowski (R-AK), Feinstein (D-CA),
Flake (R-AZ), and Schumer (D-NY)
Representatives Coffman (R-CO), Gutierrez (D-IL), Curbelo (R-FL), Roybal-
Allard (R-FL), Denham (R-CA), Lofgren (D-CA), Ros-Lehtinen (R-FL), and Chu
(D-CA)
Bar removal of DREAMers or those with DACA benefits
15. What Employers Should Do to Prepare
Take stock of company's current immigration practices
If company has H-1B or E-3 employees, self-audit DOL Public Access Files
Also ask when was last H-1B dependency calculation performed
Determine if company already using E-Verify or could use it
Identify when was the last I-9 self-audit performed
Prepare HR, business managers, receptionists for unannounced "site visits" by
government agencies (if employees on work visas)
Develop consistent approach for H-1B contract workers
Develop consistent message for foreign national employees (including DACA)
16. What Employers Should Do To Prepare—Continued
Consider implementing travel plan/system to ensure employees from designated
countries are not stranded on business trips
Consider advising employees regarding rights/responsibilities during re-entry into
the US
Can employees share sensitive company information on their phone, laptop, or workbag with
CBP officers? Is a warrant ever needed?
Who has a right to a lawyer during entry/inspection?
Have an emergency plan if immigration raid occurs
Who to notify?
Media relations?
Employee messaging?