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Immigration Issues for Employers & Employees:The New Immigration Landscape Under theTrump Administration2017 ACC-WI CLE | Wednesday, February 22, 2017 | 3 – 4 p.m.
Overview of US Immigration System
Three levels of immigration benefits Nonimmigrant visas
Alphabet soup of visas to enter and stay in the US Immigrant visas – green cards
May stay permanently, work anywhere, come and go easily US citizenship And the 4th group – undocumented
The governmental immigration agencies
Nonimmigrant Visas
Stay in the US for a finite period of time May only do the activity approved by the government A to V in the alphabet
H-1B, professional workers L-1, intracompany transferees F-1/J-1, international students and interns TN, Canadian and Mexican professionals B-1/B-2, visitors for business or tourists O-1, people with extraordinary ability
Immigrant Visas—Green Cards
May stay in the US indefinitely May work/live anywhere, activity not restricted May travel in and out of the US freely Only four major ways to get a green card
Family sponsorship by close family member: spouse, parent, child, or sibling Employer sponsorship, prove no American is qualified for the job Green Card Lottery (Diversity Visa Lottery) Asylees, refugees, victims of domestic violence, and others
Can lose green card by committing certain crimes, not paying taxes, or leaving the US for long period of time
US Citizenship
May vote in US elections, serve on juries, qualify for certain security clearances
Once a citizen, the government cannot take it away unless the person lied in the application process
Three ways to get citizenship Birth inside the US Derive citizenship through birth outside the US to US citizen parent Naturalize to become a citizen after having green card for 5 years (or 3
years if married to US citizen) Must take civics and English exam and prove no crimes during 5-year period
Immigration Government Agencies
Department of Homeland Security Citizenship & Immigration Services – grants immigration benefits Customs & Border Protection – authorize entry to US at borders and airports Immigration Customs & Enforcement – fines companies and deports people
Department of State Runs US embassies and consulates around the world Grants visas to physically enter the US
Department of Labor Precertification necessary for some work visas and many green cards
Department of Justice – runs immigration court system
Trump Executive Orders
Travel ban on people coming from Iraq, Iran, Libya, Syria, Somalia, Sudan, and Yemen for 90 days
Any connection to these countries will likely create additional screening upon re-entry to the US after international travel
120-day halt to refugee admissions and indefinitely from Syria Federal judges in several states have put a temporary stay on
portions of this Executive Order 9th Circuit Court of Appeals stayed the order nationwide Likely to issue new, more narrowly tailored order
Executive Orders on Interior Immigration Enforcement Executive Orders signed on January 17 Implementation memo released by DHS, which includes provisions
to: Near elimination of parole except in cases of national security or extreme
humanitarian needs Expand 287(g) partnerships with local police to deport more people Remove privacy protections for immigrants Hire 15,000 more border patrol agents Expand deportation priorities to include those accused of crimes, not just
convicted and those who admit to other violations—allow deportation of anyone who is deportable
Increase Expedited Removal (deportation without hearing in front of judge) to anyone in the US less than 2 years and anywhere in the country, not just within 100 miles of border, and within 14 days of entry
Draft Order Regarding Business Immigration
Review all immigration regulations related to business immigration Propose new parole regulations that likely mean the termination
and/or reform of current parole policies for Deferred Action for Childhood Arrivals (DACA)
Propose new regulations to reform business visa programs to protect American workers. This is likely aimed at adding more requirements to the H-1B and L-1 processes.
Consider ways to improve the H-1B lottery allocation process Commence L-1 worksite audits/visits of L-1 employers and L-1
worksites— eventually add all employment visas (O-1, TN, E)
Proposed Order—Continued
Establish an immigration commission to make immigration policy Propose new regulations to reform F-1/J-1 work options (OPT, CPT,
and EADs for recent college graduates to work as interns) Clarify (limit) what are acceptable activities in the US on B-1 visas Reform H-2A, agricultural worker visa program Incentivize more employers to use E-Verify Reform the Visa Bulletin and how green cards are made available Propose new E-2 regulations to conform with current law Propose new J-1 Summer Work program regulations
Senators Durbin & Grassley Bill
Replace the existing H-1B lottery process with priority system that CIS will create, which would prioritize H-1B petitions with higher salaries and non "H-1B-dependent" employers
Increase Department of Labor audits/investigations of H-1B employers
Prohibit companies that employ more than 50 percent of their US workforce on H or L visas from obtaining any more H-1Bs
Change the L-1 program to add a prevailing wage requirement similar to the H-1B, further restrict L-1B specialized knowledge standards, and add a cap on the number of L-1s issued per year
Representative Issa Bill
Raise "H-1B dependent" exemption to $100k instead of $60k Discontinue current Master's degree exemption from H-1B
dependency Result: those employers that employ a large portion of employees
(usually more than 15 percent) on H-1B visas must advertise and prove there are no Americans available for the job anytime the salary is less than $100k
Representative Lofgren Bill
Increase H-1B prevailing wage requirements by eliminating the Level 1, entry-level prevailing wage
Instead of H-1B lottery, select petitions with highest salaries first Replace the green card allocation system to be first-come, first-
served, instead of the current system where employees from China, India, Mexico, and Philippines wait up to 10-15 years longer
Similar to Issa's bill, raise the wage at which an H-1B dependent employer would be exempt from the recruitment requirement to $130k, and eliminate the Master's degree exemption
Set aside 20 percent of the 85,000 new H-1B visas for start-up companies with fewer than 50 employees
Bar Removal of Immigrants Who Dream and Grow the Economy Act: Senate & House Senators Graham (R-SC), Durbin (D-IL), Murkowski (R-AK),
Feinstein (D-CA), Flake (R-AZ), and Schumer (D-NY) Representatives Coffman (R-CO), Gutierrez (D-IL), Curbelo
(R-FL), Roybal-Allard (R-FL), Denham (R-CA), Lofgren (D-CA), Ros-Lehtinen (R-FL), and Chu (D-CA)
Bar removal of DREAMers or those with DACA benefits
What Employers Should Do to Prepare
Take stock of company's current immigration practices If company has H-1B or E-3 employees, self-audit DOL Public Access Files
Also ask when was last H-1B dependency calculation performed Determine if company already using E-Verify or could use it Identify when was the last I-9 self-audit performed Prepare HR, business managers, receptionists for unannounced
"site visits" by government agencies (if employees on work visas)
Develop consistent approach for H-1B contract workers Develop consistent message for foreign national employees
(including DACA)
What Employers Should Do To Prepare—Continued Consider implementing travel plan/system to ensure employees
from designated countries are not stranded on business trips Consider advising employees regarding rights/responsibilities
during re-entry into the US Can employees share sensitive company information on their phone, laptop,
or workbag with CBP officers? Is a warrant ever needed? Who has a right to a lawyer during entry/inspection?
Have an emergency plan if immigration raid occurs Who to notify? Media relations? Employee messaging?
