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By Dawn Lurie, Mark Katzoff, Angelo A. Paparelli and Randy Johnson

Seyfarth Synopsis: On July 24, 2019, U.S. Citizenship and Immigration Services (USCIS), the immigration-benefits component of the Department of Homeland Security (DHS),   published a final regulation on “EB-5 Immigrant Investor Program Modernization” (the “Rule”) to reform the EB-5 program in the Federal Register.  Absent successful court challenges, or the passage by Congress of EB-5 legislation, the Rule will take effect on November 21, 2019.  The Rule makes pronounced changes to the EB-5 program, including a significant increase in the investment threshold, conferral of exclusive authority to USCIS to designate Targeted Employment Areas (TEAs), and retention of priority dates for petitioners. The text of the Rule can be found here.

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This blogpost has been updated on July 23, 2019 with information regarding the number of audit notices issued.

Seyfarth Synopsis: The temperature may be heating up in the nation’s capital, but Immigration and Customs Enforcement (ICE) is keeping things cool.  ICE Acting Director, Matthew Albence, confirmed that almost 3330¹ Notices of Inspection (NOI) have already been served, across the 50 states and Puerto Rico, initiating Form I-9 audits for companies of all shapes and sizes. It is expected that over 5000 NOIs will be issued before this latest ICE blitz is over. With the current enforcement climate, there may even be a resurgence of pre-dawn enforcement actions – otherwise known as “raids” – to surprise both workers and their employers. Companies should expect penalties to climb sky high, with recent reports of multi-million dollar fines, especially for non-compliant electronic I-9 systems — that’s right, something that has nothing to do with unlawful workers.  It is expected that over 5000 NOIs will be issued during this round of audits

What is an NOI?

An NOI initiates a government administrative inspection of a company’s Forms I-9 to determine whether they are complying with existing law.  U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) leadership considers civil administrative audits to be just one of many tools that ICE can use to reduce the demand for unauthorized unemployment and to protect opportunities for U.S. workers.  The current enforcement strategy includes an expanded use of civil penalties, employer audits, and debarment, as well as the criminal prosecution of employers who knowingly break the law.

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By Randy Johnson and Dawn Lurie

Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.

The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.”  For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.

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By: Dawn M. Lurie and Greg Morano*

On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.

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By: Dawn Lurie

Seyfarth Synopsis: The government has temporarily been reopened and E-Verify is back in business, at least until February 15th.  The President and Congress have until that time to provide long term funding for the Department of Homeland Security (DHS).  Our friends over at the Verification Division of U.S. Citizenship and Immigration Services (“USCIS”) have been very busy preparing for the onslaught of E-Verify activity that began early this morning, after the very long 35-day government shutdown.  USCIS issued E-Verify guidance yesterday, January 28, 2019, outlining what employers need to do and when they need to do it.  We expect additional guidance to be posted today in an effort to clarify some of the confusion caused by the government’s initial directives.  

With all of those E-Verify queries sitting in cyberspace or on your desk, let’s start with the basics.  Be warned – if you sleep easily at night without thoughts of E-Verify invading your dreams, this blog post is likely not for you.

Hopefully, during the 35 day shutdown you were able to follow the advice provided in Seyfarth’s previous blog Government Shutdown = E-Verify Shutdown.  If so, your company has been stockpiling E-Verify queries while completing and retaining Forms I-9 in the requisite time frames.  For those companies using electronic I-9 providers, your vendor should have been doing the same through their systems.  Your vendor should also now be providing guidance on how to process those E-Verify queries queued up in their system, and should also be addressing the likely delays, backlogs and TNC related issues.…
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Over the past few days, I’ve received a large number of emails and calls from stressed out clients asking about the lack of access to E-Verify. Do not panic, employers will not be penalized as a result of the E-Verify operations shutdown.

E-Verify is the U.S. Citizenship and Immigration Service’s (USCIS) internet-based system that compares information from an employee’s Form I-9 to Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility.

Since E-Verify is not fee based, the current lapse in appropriated government funding affects the program. Employers will not be penalized for any delays in creating E-Verify cases.  However, employers are reminded that they must continue to complete I-9s in compliance with the law, and when E-Verify becomes available, create cases in the E-Verify system. We expect USCIS to issue guidance—as they have during prior shutdowns— suspending the “three-day rule”  which mandates creating a query within three day of starting work for pay, for any case affected cases.  Historically, employees caught in the Tentative Nonconfirmation (TNC) process were also provided an extended period to resolve any issues; the same is expected this time.…
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By: Dawn M. Lurie and Greg Morano*

Seyfarth Synopsis:  On October 31, 2018, the Department of Homeland Security (“DHS”) announced that it would preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador.  To comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) protects the TPS designation for each country and provides automatic extensions to existing work authorization documents.  TPS and related documentation for Nicaragua and Sudan are now automatically extended through April 2, 2019.  The TPS expiration dates for El Salvador and Haiti remain unchanged; September 9, 2019 for El Salvador and July 22, 2019 for Haiti.

TPS: What is the Status of the Program?

The Trump Administration attempted to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador.  On October 3, 2018, a federal judge issued a preliminary injunction to prevent the termination of TPS and loss of work authorization for TPS beneficiaries.  The court case is ongoing with DHS appealing the injunction order to a higher court.

If the court case is not fully resolved by the time a designated TPS is set to terminate, DHS will issue a Federal Register notice extending TPS documentation for nine months.  This means that your employees will continue to work without interruption, but you will need to update Forms I-9 with the “Auto-Extensions”.  For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.

If a higher court permits DHS to terminate TPS, the beneficiaries’ status will terminate either 120 days after the court order, or on the TPS termination date, whichever is later.

Seyfarth will continue to monitor the court case and provide updates.…
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[Blogger’s Note:  Today’s post originates from a discovery – a gem hidden in plain sight – first brought to my attention by  Gabe Mozes, my immigration partner at Seyfarth Shaw, and co-author of this piece. Great immigration lawyer that he is, Gabe raised a particularly galling example of how U.S. Citizenship and Immigration Services…

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE’s press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.”

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.

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By: Angelo A. Paparelli

The familiar lines were drawn. Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges – all in an age-old constitutional battle of federal power versus states’ rights.

This time around, however, the roles were reversed. Version 2018 is unlike the 1960s when extreme-right southern conservatives, claiming to champion states’ rights, defied but ultimately failed to stop federal efforts to protect civil rights. This time, the state of California passed three statutes under its police powers with the avowed purpose of promoting public safety and protecting undocumented state residents against a determined army of newly-unshackled federal immigration enforcement officers. And this time, the state mostly won.

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