Author: Melissa A. Silver, XpertHR Legal Editor

By increasing immigration enforcement, banning certain visa-holders from entering the US, and more, the Trump administration continues to shape immigration policies in ways that directly affect employers. With increased scrutiny on employers' hiring practices, especially of non-US citizens, employers need to ensure that they are hiring an authorized workforce and that they are in compliance with the law.

While it may seem daunting keeping up with the various immigration laws and policies, the following are key challenges of which employers need to be aware.

1. Workplace Investigations

President Trump issued an Executive Order (EO) mandating that the US Immigration and Customs Enforcement (ICE) agency hire 10,000 additional immigration officers to enforce immigration laws. According to ICE, hiring is scheduled to commence in FY 2018. Further, the Acting Director of ICE announced that he has instructed Homeland Security Investigations (the investigative arm of the Department of Homeland Security) to increase its worksite enforcement efforts by "four to five times" in 2018.

As a result, employers should be proactive and develop an effective immigration compliance program in which they:

  • Conduct periodic audits of their I-9 forms;
  • Consider enrolling in E-Verify if not required to do so;
  • Provide training to HR, supervisors, managers and designated representatives regarding the Form I-9 process;
  • Track expiration dates of employees with temporary work status and ensure timely reverification;
  • Ensure compliance with any state laws; and
  • Monitor contractor and subcontractor I-9 compliance.

California employers should note that a law was passed aimed at protecting workers from immigration enforcement actions. In particular, California's Immigrant Worker Protection Act, prohibits an employer from voluntarily consenting to allow immigration enforcement agents to enter any nonpublic areas of its workplaces or review employee records unless they obtain a subpoena or judicial warrant. Employers should be aware that the Department of Justice filed a lawsuit challenging this law.

2. E-Verify

E-Verify, or the Electronic Verification system, is a web-based program operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA). E-Verify allows participating employers to electronically verify the information provided by the employee on the Form I-9. It compares the information provided to the data contained in the databases of the SSA and the DHS. Employers are then advised of the newly hired employee's eligibility to work in the US.

Participation in E-Verify is free, and it is voluntary for most employers except where mandated by state law or federal contracts. If an employer participates in E-Verify, it creates a presumption (although it can be refuted) that the employer did not knowingly hire an employee who is unauthorized to work in the US. While there are benefits to using E-Verify, employers must ensure compliance with E-Verify requirements. For instance, E-Verify can never be used to prescreen job applicants. In addition, it should never be used to verify or reverify current employees unless the employer is a federal contractor with a contract that contains a Federal Acquisition Regulation E-Verify clause.

Employers should be aware that a mandatory E-Verify law for all employers, the Legal Workforce Act, is under consideration in Congress. Although this law is only proposed, USCIS is encouraging employers to verify the identity and work authorization of new hires with E-Verify.

3. H-1B Visas

H-1B visas may be impacted as a result of President Trump's Executive Order (EO) on Buy American and Hire American. The EO establishes as the policy of the executive branch the promotion of American business and talent. The H-1B visa is a temporary work visa available for an individual qualified as a professional who is hired to work in a specialty professional occupation. A specialty occupation position is defined as a job that requires at least a bachelor's degree (or its equivalent) in the specialty field of study.

The EO, among other things, directs the Departments of State, Justice, Labor and Homeland Security to suggest reforms of the H-1B visa program, so that visas are awarded to the most-skilled or highest-paid petition beneficiaries. The Department of Labor Secretary of Labor Alexander Acosta announced actions to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse. Further, fraud detection and prevention in the H-1B visa program is a priority for USCIS.

4. Deferred Action for Childhood Arrivals

The Deferred Action for Childhood Arrivals (DACA) program may be coming to an end. The DACA program was established in 2012, providing deportation relief to certain undocumented immigrants who were brought into the US as children and who met certain criteria. An individual granted deferred action under DACA is considered to be lawfully present during the period it is in effect, but deferred action does not provide lawful status, nor does it excuse any previous or subsequent period of unlawful presence. A DACA recipient could obtain an Employment Authorization Document (EAD), which provides work authorization for any employer for its duration.

On September 5, 2017, Attorney General Jeff Sessions announced the rescission of the DACA and the Department of Homeland Security (DHS) issued a Memorandum on Rescission of DACA. As a result, the DHS said it would no longer accept new applications for DACA, which has provided renewable, two-year work permits to about 800,000 undocumented immigrants. The administration set a March 5, 2018, deadline for Congress to act to preserve DACA's protections or grant these individuals some sort of permanent legal status before they begin losing their status.

Prior to the March 5 deadline, a federal court issued an order requiring the USCIS to resume accepting requests to renew a grant of deferred action under DACA. The government appealed this decision to the Supreme Court. The Court denied review of the decision and allowed the appeal process to continue through the lower appeals court.

In the meantime, employers need to be aware that employees who are DACA beneficiaries remain work-authorized throughout the validity period of their acceptable work authorization, and employers should rely on their Form I-9 compliance records and completed I-9 form to confirm employees' work authorization expiration dates. Further, an employer remains obligated to reverify expired temporary work authorization under the Form I-9 rules.

5. Fines

Fines for paperwork and other Immigration Reform and Control Act violations increased significantly as a result of the Inflation Adjustment Act. Employers need to be aware of these increases because they could face penalties for paperwork violations for not using the newest Form I-9. For instance, paperwork violations (per relevant individual), which include Form I-9 paperwork violations, now range from a minimum of $224 to a maximum of $2,236. Employers need to stay on top of these changes because the penalty amounts will continue to be adjusted regularly for inflation.