I-9 Compliance in a New World: It’s Not Just Paperwork
Question for employers: How does your company handle its I-9s (employment eligibility verification form)? Have you even thought about it? Unfortunately, most employers tend to under think this hugely important human resources component, which affects all its employees, not just foreign nationals. Immigration and Customs Enforcement (ICE) has announced it will increase its worksite audits by “four or five times,” and all employers, irrespective of size, location, or industry, are subject. Couple that with a recent increase in fines – which may no longer constitute “the cost of doing business” – it is time to take a look at your I-9s and devise a plan to ensure current and future compliance.
Question for employees: How careful are you when filling out your I-9? Did you know a false claim to U.S. citizenship is a “nonwaivable” offense that will permanently prevent you from receiving any future immigration benefit and could result in your removal from the United States? In this new world, we have seen an increase in U.S. Citizenship and Immigration Services (USCIS) either asking an applicant for, or conducting its own investigation to obtain, an I-9 from current or even past employment. If your I-9 reveals a claim to U.S. citizenship, even if checked by mistake, this would have a fatal impact on an adjustment or naturalization application.
What it boils down to is that an I-9 isn’t just paperwork. It is an official government form with real meaning and real consequences if not completed and maintained correctly. Employers, if you receive an unexpected visit from ICE with a Notice of Inspection, do not alter or correct your I-9s and do not ask employees for any documentation. Contact your immigration attorney immediately before you take action.
Work Authorization for H-4 Victims of Domestic Violence
The H-4 visa is available for the spouses of those for nationals who have received an H-1B visa. However, unlike many other visa categories for spouses, there are conditions on H-4 visa holders who can apply for and receive work authorization. H-4 visa holders can receive an EAD work if they meet one of these criteria: (1) their spouse has an approved I-140 petition, or (2) their spouse has continued in H-1B status past the six-year mark under the AC21 provisions. The Trump Administration is reconsidering these regulations and may withdraw work authorization for H-4 visa holders – a decision that is expected in June 2018.
Despite the uncertainty for many H-4 visa holders, there remains a safe haven for those spouses who have suffered abuse at the hands of the H-1B visa holder. The Violence Against Women Act (VAWA) allows certain abused H-4 (or A, E-3, G) nonimmigrant spouses to apply for work authorization, which enables victims to seek both safety and independence from their abuser. Applicants must use the Form I-765V, and make an affirmative demonstration of the abuse suffered. Victims who are recently divorced also may be eligible. Work authorization is granted in two-year increments and can be extended, but evidence of the abuse does not have to be resubmitted. However, the granting of work authorization does not provide an independent immigration “status,” and the H-4 visa holder is still subject to the terms and conditions of the principal’s H-1B visa.
Help is available to victims of domestic violence though the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental health care, legal advice, and other types of assistance, including information about filing for immigration status. For more information, visit the National Domestic Violence Hotline website (www.thehotline.org)
USCIS To Destroy Undeliverable Green Cards and EADs After 60 Days: USCIS announced that it is now destroying permanent resident cards, employment authorization cards, and travel documents returned as undeliverable by the U.S. Postal Service after 60 business days if USCIS is not contacted with the correct address. Word to the wise: all foreign nationals should update their address with USCIS within 10 days of moving using Form AR-11.
H-1B Cap Reached in First Week of Filing: USCIS has received enough H-1B cap-subject visa petitions to exceed the statutory limit of 65,000 visas (+20,000 Master’s cap visas) and necessitate a visa lottery. The agency reported receiving 190,098 petitions this year, slightly fewer than last year’s lottery submissions. Those petitions not selected in the lottery will be returned with the filing fees. Premium processing for these cap-subject petitions was suspended.
DACA and Travel Ban Cases Wind Their Way Through Courts: The DACA program remains intact through two federal district court rulings. The Justice Department attempted to expedite the case to the Supreme Court but was unsuccessful, so it could take another entire year for the matter to be resolved through the judicial system. The case determining the legitimacy of the travel ban is set for oral argument on April 25, with the final decision slated for late June.
Immigrant Visa (DS-260) and Nonimmigrant Visa (DS-160) Applications Likely to Include More Detailed History and Social Media Information
The State Department will likely require nonimmigrant and immigrant visa applicants to provide more detailed histories including social media platforms. In a notice of rulemaking governing electronic Forms DS-260 and DS-160, DOS detailed its intention to require visa applicants to provide identifiers for specified social media platforms during the preceding five years. Other questions seek five years of previously used telephone numbers, email addresses, and international travel, and whether specified family members have been involved in terrorist activities. For the DS-260, the new form would also ask for all prior immigration violations, and, for the DS-160, whether the applicant has been deported or removed from any country. No specific social media services were named in the proposed rule, although DOS reserved the authority to include additional social media platforms at a later date. Another proposed change would combine the DS-160 and DS-156, and discontinue the paper Form DS-156 altogether. The latter form is used for E investors. Consular officers had already begun more intensive vetting of some visa applicants — including requests for their “social media handles” (user names) — when DOS launched a new supplemental questionnaire, DS-5535 in May 2017. Comments to the proposed rule are due 5/29/2018.
President Reaffirms Desire to End “Catch and Release” at Border and Deploys National Guard
On April 6, President Trump published a memorandum directing the secretaries of Homeland Security, Defense, Justice, and Health and Human Services to update him regarding the steps being taken to end “catch and release” practices. Catch and release is an unofficial name of a protocol that has been followed by immigration enforcement agencies, ICE and CBP, under which people caught in unlawful immigration status are released while they wait for a hearing with an immigration judge. There is no single policy, regulation, or statute that simply allows apprehended foreign nationals to automatically be released when apprehended, but rather a collection of various and intersecting rules and policies by a number of agencies to provide relief to families, children, and asylum seekers while their immigration cases are being processed. The reports are due to the President in late May.
Meanwhile, in the wake of media reports on a migrant caravan headed to the Southern Border, and in anticipation of the springtime swell in border crossings, President Trump ordered the National Guard in four states deployed to the border. The Presidential Memorandum directs the National Guard to assist DHS in securing the border “to stop the flow of deadly drugs … gang members … and illegal aliens into this country.” The governors of Texas, New Mexico, and Arizona all immediately acquiesced to the President’s order. The governor of California delayed, but ultimately allowed the state’s National Guard units to be deployed specifically to assist with “drugs and thugs” but not immigrants, a distinction that may prove impossible once in the field. In the previous National Guard deployments under Presidents Bush and Obama, Guard units acted as the Border Patrol’s “eyes and ears,” providing additional aircraft and manpower for surveillance and intelligence work. This deployment will likely involve the same type of assistance.
Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email firstname.lastname@example.org