IMMIGRATION UPDATE IMPACT ON EMPLOYERS Kate E

IMMIGRATION UPDATE & IMPACT ON EMPLOYERS Kate E. Tucker Kramer Rayson LLP September 12, 2017

IMMIGRATION PRIORITIES o Attacks on multiple immigration fronts o Media Attention on the Travel Ban n o No real impact on employers in its current form. Actual Focus: n n n Border Security Deportation “Protecting US Workers”

HIRING FOREIGN NATIONALS o Buy American / Hire American n n o EO issued April 2017 No immediate impact (so we thought) Directive to DHS, DOL, DOS, DOJ: analyze existing rules and suggest changes. n n Crack down on abuse and fraud Protect US workers

H-1 B SPECIALTY WORKERS o o o Position requires a bachelor’s degree in a particular field. Pay the prevailing wage (per DOL) Apply on April 1 / Start on October 1 85, 000 available Lottery system Cap exempt employers

POTENTIAL CHANGES TO THE H-1 B PROGRAM o o o o Dismantle the program Decrease number of H-1 Bs available Raise the prevailing wage Priority to MS+ from US institutions. Requiring proof of recruitment efforts. Increasing employer site visits and audits Increase penalties and/or filing fees Require E-Verify to sponsor

ACTUAL IMPACT o Numerous Requests for Evidence issued. n n o Revocation of DACA n n n o Level One Wages Specialty Occupations Childhood arrival, educated, no criminal record No status, just work authorization and deferred action Congress has 6 months to act Stricter Scrutiny? Interviews?

OTHER AFFECTED WORK AUTHORIZED STATUSES o L-1 (intra company transferees) n n n o Site visits Wage requirements No replacement of US workers OPT (recent graduates) n n Reverse extension Reduce number of degrees under STEM

OTHER AFFECTED WORK AUTHORIZED STATUSES (CONT) o TN (Canadian and Mexican professionals) n o B-1 (visitors for business) n o If NAFTA is terminated, all TNs would be terminated. Clarify permissible business activities. Suspension of Entrepreneur Rule

BORDER SECURITY & DEPORTATION o Limited impact on employers. n n n o Construction Hospitality Landscaping / Agriculture Two EOs in January 2017 n n Exterior Enforcement (border security) Interior Enforcement (deportation)

EXTERIOR ENFORCEMENT o o o Massive expansion in detention Requires detention of everyone No exception for clean criminal history Such increased detention not possible Priorities: dangerousness and flight risk

INTERIOR ENFORCEMENT o Expedited removal: n n n o Convicted of any criminal offense (convicted, charged, engaged in); Engaged in fraud or willful misrepresentation before any government agency; Abused any public benefits program; Subject to a final order of removal; or Risk to public safety or national security. Has already led to increased deportations.

SHIFTING FOCUS: EMPLOYER V/S WORKER o 2009 – DHS shift from worker to employer n n o o Decreased raids detaining / deporting workers. Increased audits & fines on employers. EOs seemed to be a reversion. New administration’s dual focus: n n n Increased audits & fines Increased deportation February 2017 memo: take action against any undocumented worker encountered.

ICE RAIDS & AUDITS o o “Business is good. ” Hiring Violations n n n o 1 st offense: ~$500 to $4300 (per employee). Up to $21, 000 for subsequent offenses. Terminate within 10 days & avoid fines. Paperwork Violations n n ~ $200 to $2100 Adds up quickly.

CHANCES OF AN AUDIT o Triggers: n n o Disgruntled US worker. Worker injury Criminal activity (i. e. document production) IRS or DOL (Wage & Hour) Audit Frequent Targets: construction, landscaping / agricultural, hospitality, large employers.

AUDIT PROCESS o Notice of Inspection (by DHS, DOJ or DOL) n n o In person 3 days notice Interview by agent: n n n HR policies, procedures, training. Business information Information about subcontractors.

AUDIT RESULTS o Notice of Suspect Documents n n o Notice of Technical Violations n o 10 days to correct. Notice of Procedural Violations n o Undocumented workers. 10 days to terminate. Cannot be corrected Notice of Intent to Fine (from the DOJ)

POTENTIAL CHANGES TO E-VERIFY o EO proposed in January n n o Leaked but not issued Requests options to increase employer participation in E-Verify. Mandatory E-Verify for everyone would take legislative action (federal or state). n n n Some states make E-Verify mandatory. TN does not (except government contractors) TN recently took a step in that direction.

KRAMER RAYSON LLP TLEA q Tennessee Lawful Employment Act (2011). q q q Original regulation mandated compliance via: q q q Enacted to get tough on illegal employment. Changed almost nothing (must still complete I-9) E-Verify, OR Maintain identification document (including ICs). Penalties: n n $500 to $2500 per employee. Suspension of business license

2016 AMENDMENT o Effective January 1, 2017 n o Employers with 50 or more employees: n o Must E-Verify. Employers with fewer than 50 employees: q q q Hired on / after that date (no existing employees) E-Verify, OR Maintain identification document from list (includes independent contractors). $500/day fee for failure to remedy violation

ANOTHER NEW I-9 FORM o Recent revision – January 21, 2017. n o Current version revised July 17, 2017. n n o “Smart Form I-9” w/ technical enhancements. Minor changes / nothing notable Must use by September 17, 2017 Using old version = fine.

BEST PRACTICES o o Training in I-9 and E-Verify compliance Use current version of the I-9 form. n n o Print each new I-9 form directly from the USCIS website. Spanish version is for translation only. Be mindful of the timeline for completion: n n n Section One – On or before the first day of work Section Two – Within three business days. E-Verify – Within three business days. Identification Document – Prior to start.

BEST PRACTICES (CONT) o o o Review Section 1 – employer is responsible for mistakes. Calendar expiration of work authorization. Don’t ask for specific document (provide list) Keep copies of documents (but only the documents necessary for verification). Keep I-9 forms together in notebooks: Conduct self-audits.

KRAMER RAYSON LLP Kate E. Tucker ktucker@kramer-rayson. com 525 -5134 (ext. 141)