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

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

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

H-1B SPECIALTY WORKERS 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-1B PROGRAM Dismantle the program Decrease number of H-1Bs 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 Numerous Requests for Evidence issued. Level One Wages Specialty Occupations Revocation of DACA 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 L-1 (intra company transferees) Site visits Wage requirements No replacement of US workers OPT (recent graduates) Reverse extension Reduce number of degrees under STEM

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

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

EXTERIOR ENFORCEMENT 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 Expedited removal: 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 2009 – DHS shift from worker to employer Decreased raids detaining / deporting workers. Increased audits & fines on employers. EOs seemed to be a reversion. New administration’s dual focus: Increased audits & fines Increased deportation February 2017 memo: take action against any undocumented worker encountered.

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

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

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

POTENTIAL CHANGES TO E-VERIFY EO proposed in January 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). Some states make E-Verify mandatory. TN does not (except government contractors) TN recently took a step in that direction.

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

2016 AMENDMENT Effective January 1, 2017 Hired on / after that date (no existing employees) Employers with 50 or more employees: Must E-Verify. Employers with fewer than 50 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 Recent revision – January 21, 2017. “Smart Form I-9” w/ technical enhancements. Current version revised July 17, 2017. Minor changes / nothing notable Must use by September 17, 2017 Using old version = fine.

BEST PRACTICES Training in I-9 and E-Verify compliance Use current version of the I-9 form. Print each new I-9 form directly from the USCIS website. Spanish version is for translation only. Be mindful of the timeline for completion: 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) 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.

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