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

2. 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”

3. 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

4. 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

5. 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

6. 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?

7. 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

8. 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

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

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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)

17. 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.

18. 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

19. 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

20. 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.

21. 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.

22. 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.

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