When we ask employers and HR professionals “What part of your job keeps you up at night?” one of the most common responses is “my company’s immigration matters.” This concern was evident in Littler’s 2018 Employer Survey in which 1,111 in-house counsel, HR professionals, and C-suite executives provided feedback on the top issues impacting their workplaces. Perhaps not surprisingly, immigration policy changes and increased enforcement ranked as the most or second-most concerning workplace issue over the past year for 28% of those surveyed. In reflecting on the immigration policy changes that they expect to significantly impact their workplaces over the next year, 48% selected tighter restrictions on visa adjudications, and 36% expressed concern with increased workplace immigration enforcement. Other notable concerns for employers were issues regarding Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) changes (29%), tighter controls on green card adjudications (26%), and the travel ban executive order (16%).
What issues under the current administration have impacted or may impact employers with their immigrant workforce? While the news highlights the administration’s position on illegal immigration and the border wall, most employers having any significant immigrant workforce have noticed that lawful immigration has grown difficult in the past 2 years.
Most will recall the Travel Ban Executive Order (EO); however, a lesser-known EO has resulted in a more immediate impact for employers, the Buy American and Hire American EO (BAHA). BAHA addresses the H-1B visa, commonly known as the professional visa because it is used for those positions that require a specific bachelor’s degree at a minimum. BAHA requires rigorous enforcement and administration of the existing laws under the H-1B program. In addition, BAHA calls for reform to ensure H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. (Beneficiary is the term used for individuals for whom an employment-based visa petition is submitted by an employer on their behalf.)
The result for employers has been that more careful consideration is necessary when filing H-1Bs on behalf of foreign workers. There has been closer scrutiny of the wage levels used for determining the prevailing wage for a particular occupation, closer scrutiny of whether the employer requires a specific related degree for a position, and closer scrutiny of whether the H-1B candidate’s degree is related to the position. This closer scrutiny has caused onboarding delays since workers are now more reluctant to leave their existing employer until the H-1B has been approved.
Although BAHA specifically concerns the H-1B visa, it has created more far-reaching issues in other visa categories, such as the L, E, TN, and O, to name a few. BAHA has directly affected State Department visa adjudications, Department of Labor review, and U.S. Citizenship and Immigration Services (USCIS) interpretations. These are three agencies that touch the immigration world.
In addition to BAHA, on October 23, 2017, the USCIS rescinded an April 2004 policy memorandum that granted deference to previous approvals of visa petitions. This withdrawal has led to substantial burdens for some employers, as prior extensions for petitions such as H-1Bs, L-1s, TNs, and O-1s are no longer given deference. Employers are seeing some of these extensions met with detailed requests for additional evidence or, even worse, denials for employees who have been with the company for extended periods of time.
Other changes that have impacted or have the potential to impact employers on visa adjudications include a USCIS Policy Memorandum on H-1B Third-Party Worksite Requirements, which makes it more difficult for employers to place H-1B workers at a client site; a mandate for all employment-based green card/adjustment of status applications, which requires an in-person interview before the issuance of permanent residence; and new guidance that places greater restrictions on H-1B petitions for computer programmers and TNs for economists.
Increased Immigration Enforcement
Employers’ other major immigration concerns are worksite immigration enforcement actions, which include I-9 audits and worksite raids where Immigration and Customs Enforcement (ICE) will arrest employees who are suspected of being in the United States without authorization.
Dating back to October 2017, then-Acting ICE Director Tom Homan announced ICE would seek to quadruple I-9 audits. This directive is coming to fruition, as the year commenced with an ICE operation against 98 franchise retail operations across 17 states and Washington, D.C. As of the time of this article, ICE has already performed 2,282 I-9 audits during fiscal year 2018, while performing only 1,360 audits during fiscal year 2017. These numbers are expected to grow, as Derek Benner, the Acting Executive Associate Director for ICE’s Homeland Security Investigation division, has indicated ICE would like to open 15,000 audits per year if possible.
ICE does not appear to be limiting I-9 audits to certain industries that had traditionally been ICE’s focus, such as construction or service industries. ICE appears to be increasing both the number and scope of its audits.
Finally, employers are also facing the additional difficulties beyond I-9 audits. ICE has brought back the practice of detaining employees during worksite raids, putting employers in the position of determining how to handle these raids, and how to comply with warrants. ICE recently announced it performed 3,510 worksite enforcement actions between October 1, 2017, and May 4, 2018. During the entire fiscal year of 2017, ICE conducted only 1,716 actions. As part of the 3,510 worksite enforcement actions, ICE has made 139 criminal arrests and 172 administrative arrests.
Further compounding the difficulty surrounding these issues for some employers has been the arduous battle between the federal government and California, which has passed laws meant to restrict ICE’s worksite enforcement actions in Assembly Bill (AB) 450. California’s efforts may have led to increased I-9 audits in California across many industries. In some states, we are seeing more cooperation between the federal and state authorities.
One thing is certain: The administration has taken significant action in the employment immigration world, both by slowing down legal immigration and increasing the pressure on employers through worksite enforcement. We expect this trend will continue.
Jorge Lopez is a shareholder in Littler’s Miami office and is chair of the Global Mobility and Immigration practice group. He has practiced immigration law for more than 30 years and focuses on corporate immigration, processing temporary and permanent corporate visa petitions, and all aspects of the Immigration and Nationality Act regarding visa benefits and Federal I-9 immigration compliance.
Hector Galeano is an associate in Littler’s Miami office. He handles all aspects of business visas and immigration-related employer compliance investigations.
Sean McCrory is an associate in Littler’s Dallas office. He regularly advises employers on federal I-9 compliance issues, E-Verify, and immigration-related employment discrimination issues.
To access The Littler® Annual Employer Survey, 2018, please visit https://www.littler.com/2018-employer-survey.
 AB 450 imposed new requirements for public and private employers regarding immigration worksite enforcement actions by ICE. Among other things, AB 450 prohibits employers from consenting to ICE access to worksites and employee records in certain circumstances and requires employers to provide notice to current employees and any authorized representatives regarding an ICE audit.