Immigration Rules Clamp Down While ICE Investigations and I-9 Audits Ramp Up

The impact of the Trump administration’s crackdown on illegal immigration is growing as employers must contend with a surge in workplace immigration investigations and more stringent regulations. 

In keeping with his campaign pledge of protecting jobs for American workers, President Donald Trump has made immigration a top priority. Much of the emphasis has been on deporting illegal workers, but employers have also been in the crosshairs of immigration enforcement agencies. 

According to new statistics from U.S. Immigration and Customs Enforcement (ICE), worksite audits and investigations in the first seven months of this fiscal year are already well ahead of the totals from fiscal year 2017. From October 2017 to May 2018, ICE conducted 3,510 worksite investigations and opened 2,282 audits of I-9 employment eligibility verification forms, as compared to 1,716 investigations and 1,360 I-9 audits during all of FY 2017. 

The increase follows a directive from ICE’s acting director Thomas Homan last year to increase workplace enforcement by "four or five times." This has led to some headline-grabbing cases, including the arrest of 800 undocumented workers at a Chicago bakery and the targeting of nearly 100 7-Eleven stores across the nation. 

Hiring Immigrant Workers Gets Harder

In addition to stepping up their enforcement agenda, federal agencies are focusing on revising immigration rules in an effort to make it harder for employers to obtain immigrant workers, according to Sarah Maxwell, an immigration attorney with Vedder Price in Los Angeles. She reviewed the shifting regulatory landscape during a recent Envoy Global webinar. 

As an example of tightening rules, Maxwell cited a recent memo regarding the H-1B visa program in which U.S. Citizenship and Immigration Services imposed added requirements for employers seeking to place workers off-site. 

The H-1B program offers a limited number of nonimmigrant visas each year for guestworkers in specialty occupations. The initial visa period lasts up to three years, and H-1B status can be extended up to three additional years. 

Under the new requirements for H-1B visa holders placed at third-party worksites, employers "must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for the visa holder for the entire time requested on the petition," the guidance states. 

For a lot of employers, this is extremely onerous, Maxwell said. "Imagine hiring a foreign worker for an attorney position and having to dictate to the USCIS every single project that she will be working on for the entire three-year period with some level of detail." In some cases, it could be impossible, she added. 

Employers unable to specify all of the work that would be performed over the three-year period will in many cases find that the USCIS will reduce the visa period to one year to reflect the amount of work that can be fully substantiated, Maxwell said. 

Other potential immigration rule changes that are in the works include the following: 

  • Redefining "specialty occupation" for H-1B visas. The Department of Homeland Security intends to revise the term "specialty occupation" to better protect U.S. workers and increase the focus on obtaining the best and brightest foreign nationals. "All current requirements in the evidentiary process for the visa are based on the fact that ‘specialty occupation’ is defined as requiring a bachelor’s degree or its equivalent in a particular specialty as the minimum for entry into the specific occupation. So any altering of that definition would fundamentally change the H-1B category itself," Maxwell said. The proposed revision is expected in January 2019. 
  • Work authorization for H-1B spouses may end. Currently, spouses of H-1B visa holders waiting for green cards have been eligible to work in the U.S. on H-4 dependent visas. DHS has given notice that it is reviewing this authorization, which would impact more than 100,000 work-authorized individuals and their families, according to Maxwell. On May 16, however, a bipartisan group of 130 U.S. lawmakers sent a letter to the Secretary of Homeland Security opposing the potential change. "The opportunity for H-4 visa holders to work has made our economy stronger while providing relief and economic support to thousands of spouses, mostly women, who have resided in the United States for years," the letter said.
  • The H-1B lottery may be changing. DHS wants to revise the existing system in which employers seeking to obtain H-1B workers are chosen through a lottery system when the number of petitioners exceeds the annual cap of 85,000 visas (65,000 H-1B visas plus another 20,000 for guestworkers with advanced degrees). A proposed rule expected in July would create an electronic registration system for employers seeking H-1B visas subject to the annual cap.

Employers have their work cut out for them in staying abreast of developments in this rapidly changing area. In an environment of ramped up enforcement and tighter regulations, HR departments play a particularly important role in monitoring their organizations’ practices and ensuring compliance with workplace immigration law.


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