In the transition from one administration to another, there are still a lot of unknowns for employers in terms of potential changes to employment related issues. The new administration has promised that regulations will be streamlined and many executive orders will be rolled back, but the devil is in the details so the best advice is to continue on as you were until you hear otherwise.
One area that is provoking a lot of anxiety is that of immigration and travel from certain counties. What will the temporary travel ban look like once the dust settles? How encompassing will the crackdown on illegal immigrants be and how will that affect employers? The New York Times offers an overview of the latest direction: New Trump Deportation Rules Allow Far More Expulsions. Whether or not the new direction will include increased employer I-9 audits or workplace raids by ICE is still just a matter of conjecture.
Time and the appointment of a new Secretary of Labor will offer some clarity on these issues. Until then, business as usual is the best rule of thumb. We’ve compiled authorized resources for I-9 and E-verify, as well as some informed opinions by employment law attorneys on immigration and foreign-born worker issues as they stand now, as well as best practice preparations that employers can be taking now.
Federal resources
I-9 Central – Federal law requires that every employer* who recruits, refers for a fee, or hires an individual for employment in the U.S. must complete Form I-9, Employment Eligibility Verification. Form I-9 will help you verify your employee’s identity and employment authorization.
Employer Beware: The Time to Use the New Form I-9 Is Now – Employment law attorney Carols Ortiz issues this reminder: “On January 22, 2017 employers became obligated to use a new Form I-9, dated November 14, 2016. Prior versions of the I-9 form are no longer valid. You can find the new Form I-9 here. “ He also points out some of the differences between the old form and the new one.
I-9 Central Handbook for Employers (PDF) – Guidance for completing Form I-9
E-Verify – U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use – and it’s the best way employers can ensure a legal workforce.
Form I-9 And E-Verify – Immigrant and Employee Rights Section (IER), U.S. Department of Justice. Employers are required to verify the identity and employment eligibility of all their workers who were hired after November 6, 1986, by completing Form I-9, Employment Eligibility Verification. U.S. Citizenship and Immigration Services (USCIS), in the Department of Homeland Security (DHS), publishes the Form I-9 and accompanying guidance. Some employers use E-Verify, an electronic system that compares a worker’s Form I-9 information with government databases to verify employment eligibility.
I-9, Employment Eligibility Verification Forms
E-Verify Employer DOs and DON’Ts (PDF)
E-Verify Webinars for employers
Employer guidance from employment law attorneys
Guidance for Conducting an I-9 Self-Audit – Employment law attorneys Brenda Eckert and Ashley Mendoza say that “the idea of an audit by U.S. Immigration and Customs Enforcement (“ICE”) is enough to send a chill down any organization’s spine.” They suggest that the number of ICE audits are likely to rise under the Trump administration, making now an opportune time for organizations to conduct a voluntary internal audit of their Forms I-9.” They offer a Guide for conducting a self-audit.
Immigration Enforcement: Preparations for Employers – Employment law attorney Caitlin Poe says that, ” … given the heightened attention on immigration enforcement, employers with foreign-born employees are well-advised to plan their response should they face an audit or worksite enforcement action as a result of this Executive order or future orders or legislation.” She offers best practices for employers to adopt before any enforcement action, as well as best practices should worksite action occur. She also offers preparation and response tips for employees.
Immigration Fact and Fiction for the U.S. Employer: Raids and Employers – Employment law attorney David Grunblatt says, “Given that even individuals who have employment authorization may be subject to removal if they have even minor violations, employers can expect that on occasion, a worker properly processed for hire will suddenly become entangled in a removal proceeding and become unavailable for work … And yes, there is a real possibility that over time, ‘the bad old days’ of worksite raids will become a reality once again. We will talk about preparing for worksite raids in a blog to come.” Follow future immigration posts at Law & The Workplace
How Will Trump Policies Affect H-1B Logjam? – Immigration law attorney Anton Mertens: “President Donald Trump made the protection of American jobs and immigration reform major priorities in his campaign, and he has wasted no time acting upon those promises in his first few days in office. Not only has he promised to build a wall, but he also has committed to making major changes to our immigration policies. These changes could greatly affect the country’s H-1B visa program, which has become an essential program for many businesses in the U.S. to fill open positions. So, just how will the actions of the Trump administration affect American businesses?”
H-1B Cap-Subject Petitions: With Potential Changes Looming, U.S. Employers Must Prepare Now for April 1 Filings – Employment law attorneys Beth Carlson and Sarah Kilibarda issue a reminder and guidance: “April 1, 2017 is the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for the FY 2018 allotment of visas for foreign national professionals in specialty occupations. Cap-subject H-1B visas become available each year on October 1 — and filings with USCIS can be made no sooner than six months in advance.”