How to Prepare for Heightened Immigration Enforcement and Compliance in the Trump Era

Prepared by Amy L. Peck Jackson Lewis P.C. (402) 827-4250 | [email protected]

This paper is meant to provide information of a general and educational nature and does not constitute legal advice or create an attorney-client relationship. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. The views expressed in this paper are solely those of the authors and do not necessarily represent the views of their firm or its principals or clients. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis. ©2017 Jackson Lewis P.C.

This article has previously been published in the May-June issue of Nebraska Lawyer.

When Donald Trump announced he would be running for President of the United States in June 2015, immigration became a hotter topic. Throughout his campaign, Trump made many statements about immigration. He focused primarily on undocumented aliens who enter the country illegally and on investigating abuses of visa programs that he believes disadvantage American workers. After his inauguration, Trump signed Executive Orders to keep some of the promises he made. Those set the tone for a heightened emphasis on compliance and enforcement in the workplace and constitute a blueprint for agency action and possible legislation in furtherance of the President’s goals. In this article, we will: (I) review what has been done so far in terms of orders, guidance and proposed legislation to set the scene for what may be on the horizon; (II) discuss how these actions are relevant to all employers – even those who do not realize that they may be affected; and (III) set out strategies to meet the expected enforcement and compliance challenges ahead.

I. WHAT HAS BEEN DONE SO FAR?

Executive Orders on Enforcement

January 25th Orders

On January 25, President Trump signed two Executive Orders aimed at border security and immigration law enforcement. These two Orders deal primarily with individuals who are undocumented: 1) how to stop them from entering the country illegally, and 2) how to detain and deport those already in the country (many have been here for decades) who threaten public safety.

The “Border Security and Immigration Enforcement Improvements”1 order directed the Department of Homeland Security (DHS) to start the process of constructing the border wall between the U.S. and Mexico immediately. It also directed, among other things:

 Ending the “catch and release” policy that had allowed “captured” aliens to enter the U.S. while awaiting deportation proceedings;  Creation of more detention space at the border to hold those aliens and to facilitate their return to their home countries;  Hiring of 5,000 more Border Patrol agents to help with enforcement at the borders; and  The promotion of agreements with state and local law enforcement to enforce immigration laws to further expand the government’s ability to expedite immigration investigations and deportations.

The second order, “Enhancing Public Safety in the Interior of the United States,” 2 focuses on enforcement beyond the border areas. Some of the directives order the federal government to:

 Withhold federal funds from “sanctuary cities”;

1 For text of the Order, see https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and- immigration-enforcement-improvements. 2 For text of the Order, see https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order- enhancing-public-safety-interior-united.

 Add 10,000 immigration officers to perform immigration law enforcement functions;  Make public on a quarterly basis a comprehensive list of criminal actions committed by aliens;  Establish an Office for Victims of Crimes Committed by Removable Aliens to provide support for family members; and  Reinstate the Secure Communities Program that focuses on deportation of those who generally “pose threats to public safety.” This replaces and broadens the Obama Administration’s Priority Enforcement Program that focused on deporting more hardened criminals including criminal gang members and those who pose a danger to national security.3

January 27th (and March 6th) Orders

On January 27, President Trump signed the “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order, which had an immediate effect on individuals from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. Known as the “Travel Ban,” the Executive Order included a 90-day ban on entry of individuals from the seven selected countries to the United States, halted refugee programs for 120 days, and halted the Syrian refugee program indefinitely. The immediate implementation of this Executive Order by the Department of Homeland Security led to chaos, protests, and, ultimately, an injunction blocking the Order. On March 6, 2017, the Administration adjusted and reissued the Order. 4 That, too, was blocked by the courts. 5 Meanwhile, directives have been sent to Consulates abroad by Secretary of State Rex Tillerson setting out procedures for “extreme vetting.” Consular Chiefs have been asked to determine which populations of visa applicants should be subject to additional vetting and put appropriate protocols in place to “vigorously enforce all existing grounds of inadmissibility.” On May 4, the Department of State requested emergency review and public comment on a new rule on the collection of additional information from some visa applicants. The proposed rule would “institutionalize” and expand Secretary Tillerson’s “extreme vetting” directive.6

The new or expanded areas of inquiry in the proposal are:

 15 years of travel history (including domestic travel in the country of nationality if it was under control of terrorist organizations) and sources of funding for travel;  15 years of address history;  15 years of employment history;  All passport numbers and country of issuance;

3 For information about Secure Communities and Priority Enforcement Programs see https://www.ice.gov/secure- communities. 4 For text of the reissued Order, see https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting- nation-foreign-terrorist-entry-united-states. 5 As of April 1, 2017, the Administration has filed appeals to both the 4th Circuit Court of Appeals and the 9th Circuit Court of Appeals regarding these injunctions. 6 For text of the proposed rule, see https://www.federalregister.gov/documents/2017/05/04/2017-08975/notice-of- information-collection-under-omb-emergency-review-supplemental-questions-for-visa.

 Names and dates of birth of siblings, children, and current and former spouses or civil or domestic partners;  5 years of social media platforms and identifiers; and  5 years of phone numbers and email addresses.

Although DOS has estimated the number of applicants who will be affected by the proposed rule to be approximately 65,000 annually (or 0.5% of applicants), no particular subsets of applicants are identified. Consular officers will have the discretion to decide, based upon “the circumstances of a visa applicant, a review of the visa application, or responses in a visa interview [that] indicate a need for greater scrutiny.” They also will have the discretion to grant visas even if all of the requested information cannot be supplied upon determining that the applicant has a “credible explanation” for the failure and that there is enough other information to make a decision about eligibility.

In addition to new vetting procedures, in response to intelligence reports the DHS and the Transportation Security Administration (TSA) have instituted new travel restrictions. Until further notice, no personal electronic devices (PEDs) larger than a cellphone or smartphone, such as a laptop computer, tablet, or e-reader, can be carried into the cabin of airplanes flying directly to the U.S. from 10 airports in the Middle East, North Africa, and Turkey.7 All passengers will be subject to these restrictions, including U.S. citizens, regardless of Trusted Traveler Status. The United Kingdom also has put similar restrictions in place. In addition to the new PED policy, all travelers to the U.S. should be prepared for the possibility that their electronic devices might be “detained” for examination and inspection upon arrival in the United States and that they may be asked to “unlock” their devices for inspection – even if those devices contain confidential business information.8

Buy American, Hire American Executive Order

On April 18 at Snap-On Tools in Wisconsin, President Trump signed the Buy American, Hire American Order, focusing on reform of the H-1B visa program, as well as elimination of waivers and exceptions that are central to international trade deals. The Order directs the Departments of Homeland Security, Justice, Labor, and State to crack down on fraud and abuse in the immigration system, across the board, to create higher wages and rates of employment for U.S. workers.9

7 For Q&A on PED Restrictions, see https://www.dhs.gov/news/2017/03/21/qa-aviation-security-enhancements-select-last- point-departure-airports-commercial. 8 For additional information, see ACLU publication Know Your Rights booklet at https://www.aclu.org/files/kyr/kyr_english_5.pdf. Also see “Restriction on Personal Electronic Devices, including Laptops, on Flights from 10 Airports, Meredith K. Stewart, March 20, 2017, at http://www.globalimmigrationblog.com/2017/03/restrictions-on-personal-electronic-devices-including-laptops-on-flights- from-10-airports/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ GlobalImmigrationBlog+%28Immigration+Blog%29 9 For text of the Buy American, Hire American Order, see https://www.whitehouse.gov/the-press- office/2017/04/18/presidential-executive-order-buy-american-and-hire-american.

The Order requires the departments to make proposals on what can be done to achieve the goals of ensuring that:

1. American workers are protected, 2. H-1B visas are going only to the most highly skilled workers, and 3. American workers are not replaced by “cheap labor” from abroad.

Like various reform bills pending in Congress, the focus is on the perceived abuses of outsourcing firms.

Some necessary reforms envisioned in the Order will have to be legislative, but others can be accomplished administratively, including:

 Increases in fees for H-1B visa petitions;  Changes to the wage scale to institute higher prevailing wage requirements;  Greater focus on enforcement against gross and egregious law violations; and  Adjusting the lottery system to give Master’s degree holders priority.

Indeed, some changes in this direction already have been made. The DHS had announced that it will be targeting outsourcing firms with more unannounced site visits to H-1B dependent employers. It also will target outsourcing firms in adjudications by considering whether employees classified as computer programmers really are eligible for H-1B status.

President Trump has stated that he would like to eliminate the random lottery system altogether. Instead, H-1B visas would be awarded to the “most skilled or highest paid” applicants. This sort of priority system has been suggested by Senators Dick Durbin and Chuck Grassley in their bipartisan bill, the “H-1B and L-1 Visa Reform Act.” The Durbin-Grassley system would prioritize workers with the highest wages and advanced U.S. STEM degrees. The Administration would see this type of reform as an “elegant way of solving the problem” of outsourcing.

A White House background briefing says there is a “great appetite in [the] departments and agencies to get to work on closing loopholes, shoring up [the H-1B] program, [and] dealing with long-running abuses.” While there is no specific timetable set for the reports and reforms, the expectation is that things will start to happen soon.

Perhaps in response to President Trump’s campaign promises, a number of bills including the Durbin- Grassley bill have been introduced and re-introduced in Congress to reform business immigration processes. Most of the bills10 focus on limiting fraud and outsourcing (and fraud in outsourcing), raising wages, and compliance.

10 For information on various bills that have been introduced in Congress, see Congress Considers Visa Bill Ahead of Expected Immigration Executive Order, Amy L. Peck, February 1, 2017 (High Skilled Worker Integrity and Fairness Act of 2017 introduced by Representative Zoe Lofgren (D-CA)) at http://www.globalimmigrationblog.com/

Below are some of the primary areas of cross-over among the pending legislation, the Buy American, Hire American Order, and President Trump’s policies as expressed during his campaign.

 Restarting fraud assessments for all immigration benefits and categories.  The expansion of on-site visa investigations eventually to include all work visa categories.  Increases in wage requirements for temporary work visas (H-1B) and greater limitations on employers who use large numbers of H-1B workers.  Rules clarifying what individuals entering the United States as business visitors or tourists are allowed to do while in the country to ensure that U.S. workers are not being displaced.  Instituting merit based visa allocation systems.  Imposing salary requirements on outsourcers.  Raising wage requirements for visa holders.  Providing more authority for DHS and Department of Labor (DOL) to investigate fraud and abuse by sharing information and instituting higher penalties.  Requiring employers to provide petition or visa beneficiaries with all documentation filed on their behalf with the DHS and DOL (only redacting sensitive financial or proprietary information).  Requiring the U.S. Citizenship and Immigration Services (USCIS) and Consulates to provide beneficiaries with brochures outlining employer’s obligations and employee’s rights under the visa programs.

While these bills raise all sorts of issues and possibilities, what they have in common is an emphasis on fraud investigations, sharing of information between agencies regarding potential violations, and workplace enforcement.

II. WHO IS AFFECTED?

All employers are affected by at least some of the new emphasis on compliance because all employers must verify work authorization by completing Forms I-9 Employment Eligibility Verification. Given the Administration’s emphasis on unauthorized workers, Immigration and Customs

2017/02/congress-considers-visa-bill-ahead-of-expected-immigration-executive-order/; Congress Considers Halting Job Flexibility Rule, Bill to Change Employer H-1B exemption Eligibility, Forrest G. Read IV, January 9, 2017 (The Protect and Grown American Jobs Act introduced by Representative Darrell Issa (R-CA) and Scott Peters (D-CA)), at http://www.globalimmigrationblog.com/2017/01/congress-considers-halting-job-flexibility-rule-bill- to-change-employer-h-1b-exemption-eligibility/; The Fairness for High Skilled Immigrants Act introduced by Senator Jason Chaffetz (R. Utah), January 2017 at https://www.congress.gov/bill/115th-congress/ house-bill/392 ; Gear Up for H-1B, L-1 Reforms by Otieno B. Ombok, March 13, 2017 (The H-1B and L-1 Visa Reform Act introduced by Senators Chuck Grassley (R. IA) and Dick Durbin (D. Ill) with co-sponsors Bill Nelson (D. FL), Richard Blumenthal (D. CT) and Sherrod Brown (D. OH) in the Senate, January 2017 and its companion in the House introduced by Representative Bill Pascrell, Jr. (D. NJ) with co-sponsors Dave Brat (R. VA), Ro Khanna (D. CA) and Paul Gosar (R-AZ)) at http://www.globalimmigrationblog.com/2017/03/gear-up-for-h-1b-l-1-reforms/.

Enforcement (ICE) is expected to conduct more I-9 audits. And all employers who have employees who travel abroad, even if the travelers are U.S. citizens, could be affected by the new travel restrictions on PEDs and possible inspections of PEDs, including cell phones and smart phones at ports of entry.

Other employers who hire foreign nationals on visas, including international companies who regularly transfer individuals from abroad, will be affected by the new emphasis on compliance, strict scrutiny of visa petitions and policies, as well as possible new regulations limiting visa options, raising wage requirements, and curbing outsourcing. These companies will also be affected by “extreme vetting” of foreign nationals for national security purposes. Foreign nationals transferring employment to the US or foreign nationals coming to the United States to do business with U.S. companies could be quite delayed as consulates evaluate documentation and possibly request Security Advisory Opinions (SAOs) from Department of State headquarters in Washington, D.C.

There are still other employers who may not think that the orders regarding border security and deportation are relevant to their businesses, but it is important to remember that employers may not know they have undocumented workers on their payroll and they may not know that they have employees who are subject to deportation.

Employers are not usually experts in conducting forensic evaluations of work authorization documents—nor are they expected to be. Employers are expected to follow the rules, review documentation to the best of their ability, and complete I-9 Employment Eligibility Verification forms completely and correctly within specific timeframes. Even having followed all of the correct procedures, employers can sometimes end up withholding taxes and Social Security based upon documentation of work authorization that went unrecognized as false.

Beyond that, employers may have immigrants on their payroll who are subject to possible deportation and possible ICE raids on company premises for committing what might seem to be minor infractions. Immigrants could be subject to deportation if they simply have been charged with criminal offenses (not convicted) or if they have committed acts that constitute chargeable criminal offenses, defrauded government agencies, or abused programs related to public benefits.11 Under this broad standard, anything from driving under the influence, to misrepresenting status to an immigration officer, to presenting a false Social Security card to “turnstile jumping” (a minor criminal offense in New York) could result in deportation.

III. HOW CAN EMPLOYERS PREPARE FOR THE ANTICIPATED CHANGES?

Audit I-9 Compliance

As mentioned above, Immigration and Customs Enforcement (ICE) is expected to prioritize prosecuting employers and company officials who knowingly hire illegal workers. To do this, ICE has

11 In Section 2 of the Border Security and Immigration Enforcement Improvements Order it states: It is the policy of the executive branch to . . . (b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations . . . .

deployed a variety of tools to uncover noncompliance including confidential informants, undercover agents, and Form I-9 audits affecting employers both large and small. During an I-9 audit, ICE not only reviews I-9 and E-Verify records for substantive and technical errors that can generate fines, but also scrutinizes the employer’s hiring policies and procedures, staff training, payroll records, and records of 1099 subcontractors in seeking indications of possible violations that can be referred to other government agencies, such as the Department of Labor.

Steep fines and administrative penalties including the threat of debarment from all federal contracts are possible outcomes. ICE also makes use of its ultimate deterrent against the employment of undocumented aliens—asset forfeiture and criminal prosecution of employers’ property with increasing frequency.

ICE, however, has been known to be more lenient with employers who have taken steps to review and, when necessary, update their compliance programs by implementing procedures to correct inadvertent errors and prevent future violations. Monetary penalties may be reduced where ICE finds technical violations, but recognizes an employer’s good faith compliance efforts. Preventive action may be the best way to reduce the chances of financial risk and public relations exposure with a comprehensive internal audit.

Conducting a comprehensive audit involves more than a simple review of I-9 documentation for errors. It also includes:

 A review of the company’s entire I-9 or E-Verify profile including recruiting, hiring, and employment eligibility verification policies and procedures;  Subject-matter testing of responsible staff members;  Instituting best practices on record retention;  Correcting errors appropriately;  Ensuring that non-discrimination principles are followed to avoid Civil Rights Act violations;  Considering process management tools such as electronic I-9 software platforms; and  Considering the pros and cons of using E-Verify.

ICE generally provides a three-day notice before an I-9 compliance review, but three days may not be enough time to prepare if an employer has not already conducted a comprehensive audit.

Prepare for Unannounced Worksite Visits

If a company has employees working in H-1B or L-1 status, they should prepare for unannounced worksite visits by the Office of Fraud Detection and National Security (FDNS). USCIS created the FDNS in 2004 to “ensure that immigration benefits are not granted to individuals who pose a threat to national security of public safety, or who seek to defraud our immigration system.” Its mission continues to be relevant today. The FDNS generally conducts its investigations by arriving on site without advance notice and asking to speak with the individual who signed the employer’s petition and to the beneficiary to determine if everything in the petition is accurate. It will focus on job

descriptions, job locations, salary, education requirements, and the like. The investigator may want to tour the premises, take photographs, and ask for a broad range of documents to verify the accuracy of all statements, including financial documentation and even information that may go beyond the petition itself, to information about immigrant visa applications, other office locations, layoffs, and hiring policies. If the FDNS is seeking more documents or information than can easily be compiled during the visit, the employer should explain that they will forward the documents within a reasonable time.

The FDNS and the USCIS take the position that by submitting petitions, the employer consents to on- site visits and that no subpoena or warrant is necessary for the visits themselves or for requests for information and documents. While site visit cooperation is not mandatory and may be refused, the refusal of a site visit may result in negative information being sent to the USCIS in connection with the visit that could result in a revocation of the case in question and other possible consequences or scrutiny. The employer and employee are not required to answer every question asked. An employer should ask to consult with counsel prior to answering questions if the questions do not seem relevant.

To prepare for an FDNS visit, employers should:

 Determine who will interact with the investigator, i.e., who the “first responder” should be and who will be the “back-up” responder.  Make sure that the receptionist(s) know who to call if an investigator arrives.  Provide training and instructions to the responders.  Make sure in-house counsel is aware of the possibility of an FDNS visit.  Audit LCA Public Access Files and PERM Audit files to ensure the company is prepared and in compliance and that records are not being kept longer than required.  Audit the job duties, salaries, and locations of H-1B and L employees to ensure the filed petitions are still accurate. If there are inconsistencies, counsel should be notified to determine next steps.  Make sure that beneficiaries have reviewed the petitions filed on their behalf.  Decide how and when to notify H-1B and L-1 employees about the possibility of an FDNS visit. If any foreign nationals in H-1B or L status work remotely at a third party location or at home, make sure they are aware of the possibility of an FDNS visit – even at a home office.  Sometimes, the FDNS or the Department of Labor might reach out directly to foreign national employees by mail, email, or phone. Let employees know that if they are contacted directly, they are free to respond and they are free to reach out to their employer for advice.

Do’s and Don’ts for interactions with the FDNS:

 Ask for the investigator’s card and write down all of his or her contact information.  Ask for and write down the purpose of the visit, including the name of the employee(s) the investigator wants to interview and what evidence or records the investigator wants to see.

 Do not have the interviews in open office areas or allow the investigator to wander through the company unaccompanied.  The designated responder should ask the investigator to wait while he or she privately calls counsel for advice, notifies the beneficiary to see if the beneficiary is on-site and prepared, and calls the office number on the investigator’s business card for verification purposes.  A company may inform the investigator that they would like to have their attorney present during the visit. While the FDNS likely will not delay the interviews for that purpose alone, if it is not possible for the attorney to be on site, request audio or video conferencing if that is feasible.  If there is not an appropriate first responder on site, if the beneficiary is not on site when the Investigator arrives, or if the visit would cause an unreasonable disruption at that particular time, the responder should explain that and ask to reschedule.  Ensure that there is a witness to take detailed notes in every interview – even the interview with the first responder. Mark all notes as “Confidential Attorney Client Communication- Prepared at Request of Counsel.”  If the investigator asks for documents, ask for specifics about what investigator wants to see. Then the responder should retrieve and make copies of those specific documents for the investigator.  After the interviews are completed, call counsel to debrief and consider whether there should be any next steps.

Prepare for Possible ICE Raids

While employers may not think their premises would be subject to an ICE raid, as discussed above, companies nevertheless should be prepared. ICE raids can lead to potential civil and criminal charges and each situation is different. It is therefore essential to consult with counsel on these matters. The general overview below provides employers with basic things to consider in advance of a possible ICE raid.

 As with the unannounced FDNS worksite visits, identify a first responder and a back-up who initially will interact with the ICE officer(s) and accompany the officer(s) while they are on the premises.  Advise employees that if a raid occurs, they should not block, interfere, or engage in any hostilities with the ICE officers as they conduct their activities.  Inform employees that they have a right to talk, and not talk, with ICE officers if they like. However, do not direct employees not to speak to agents when questioned. Suggest they can contact the American Civil Liberties Union (ACLU) if they have any questions about their rights.

If a raid occurs, remember:

 ICE needs a search warrant. Be sure to ask to see the warrant, examine it to see if it grants entry to the premises and that it is properly signed.  Contact counsel immediately, but ICE will not delay the raid to wait for the attorney to arrive.  Do not engage in any activities that could support a harboring charge, such as hiding employees, aiding in their escape from the premises, providing false or misleading information, denying the presence of specific named employees, or shredding documents.  After the raid, contact the families of any detained employee, debrief staff, and make notes for counsel marked “Confidential Attorney Client Communication-Prepared at Request of Counsel.”

Strategize for Possible Travel and Global Mobility Issues

As new forms of vetting become the norm and as policies around immigration benefits tighten, employers need to think about how their overall business strategies might be affected. If a company employs foreign nationals on visas, they need to think about the following:

 Prepare strategies to deal with travel restrictions, extreme vetting, and strict scrutiny of visa petitions that might slow the pace of business travel for foreign nationals and interfere with talent acquisition, as well as contractual obligations and business expansion goals.  Review staffing goals in light of possible higher wages for H visas and the possible implementation of wage requirements for L visas.  Focus on hiring foreign nationals who might be at the top of merit-based visa allocation system.  Prepare for the possibility of more limited outsourcing opportunities.  Prepare for possible changes in trade agreements that could affect hiring and employment, particularly of TN nationals.  Put in place electronic device policies to deal with possible border inspections of PEDs, including cellphones and smartphones.

IV. CONCLUSION

With the heightened focus on immigration enforcement and compliance in the Trump Era, it is important for employers to think about changes that may be on the horizon and prepare their companies to meet the new challenges. That old adage, “the best offense is a good defense” is particularly apt if employers want to try to reduce their immigration risks and liabilities as the government plans for more inspections and raids. Moreover, to remain competitive, especially in terms of staffing, talent acquisition, and collaboration with subsidiaries, affiliates or partners abroad, employers will need to adjust their business strategies around what the future may hold in terms of changes in business immigration law and the establishment of new vetting procedures to enhance national security.

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