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By: Dawn M. Lurie

Seyfarth Synopsis: “ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”  Referring to Immigration and Customs Enforcement’s (ICE) early morning raids at nearly a hundred franchisee convenience stores across the nation, the ensuing public comments from agency officials confirm that 2018 will be a year of increased immigration enforcement.  ICE investigations can result in the arrest of employers and employees and the imposition of large-scale fines; under the current Administration, though, it’s not only ICE that companies need to consider.  Following the “Buy American, Hire American” Executive Order, a myriad of reinvigorated agencies that span all parts of the government have increased immigration-related oversight.  Employers should proactively prioritize addressing immigration compliance. 

Continue Reading Following a Long Thaw, ICE Returns with Increased Worksite Enforcement

By: Dawn Lurie and Alexander Madrak

Seyfarth Synopsis: The Department of Homeland Security ends Temporary Protected Status for El Salvador, Nicaragua, and Haiti, affecting close to 300,000 individuals.  Employers should be prepared to handle the influx of work authorization automatic extensions, expiring work authorizations, and other Form I-9 issues that may arise.

What Happened?

On Monday, January 8, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced the termination of Temporary Protected Status (TPS) for El Salvador.  El Salvador’s TPS designation was set to expire on March 9, 2018, but Secretary Nielsen delayed termination for 18 months to September 9, 2019 in order to “provide for an orderly transition.”  This decision affects an estimated 200,000 Salvadoran foreign nationals.

Similarly, Nicaragua’s TPS was set to expire on January 5, 2018, but was extended to January 5, 2019.   The Department of Homeland Security (DHS) also previously announced the termination of TPS for Haiti.  Haiti’s TPS termination was delayed for 18 months from the original expiration, with TPS now terminating on July 22, 2019.  Together, these decisions affect an estimated 5,300 Nicaraguan and 59,000 Haitian foreign nationals.

Continue Reading TPS Ending for El Salvador, Haiti & Nicaragua, and a Short Reprieve for Hondurans Still Waiting to Know Their Fate – Now What?

By: Angelo Paparello

Seyfarth Synopsis: Employers take note. The April 18, 2017 “Presidential Executive Order on Buy American and Hire American,” has unleashed an array of legally dubious grounds from officials at U.S. Citizenship and Immigration Services as their basis to ask for burdensome additional evidence and to deny requests for work visas and employment-based green cards on behalf of both existing and prospective employees.

Continue Reading Revanchist Immigration: The Aftermath of “Buy American, Hire American”

By Mahsa Aliaskari and Alexander Madrak

Seyfarth Synopsis: Citing security reasons, the Trump administration announces expansion of requirements for the 38 countries that participate in the U.S. Visa Waiver Program (VWP) allowing limited travel to the U.S. for business and tourism.

On December 15, 2017, the Department of Homeland Security (DHS) announced additional security measures for countries whose nationals use the U.S. Visa Waiver Program (VWP) for temporary visits to the U.S.  The Administration’s most recent announcements surrounding the VWP requirements fall in line with its ongoing efforts to tighten the rules for those seeking to visit, work or live in the United States.  With national security serving as the justification for the enhanced scrutiny and increasing limitations, while the VWP changes may appear innocuous, they may also impact how companies handle business travel.  For clarification on all of the acronyms used in this space, remember – if you are traveling using ESTA – that means you are traveling under the VWP program.

The VWP allows citizens from 38 countries to travel to the United States for business or pleasure for up to 90 days.  More than 20 million people participate in the program each year, generating nearly $100 billion in travel exports for the U.S. economy.  European countries encompass a large majority of the 38 countries with Australia, New Zealand, Japan, Singapore and South Korea also participating.

The DHS announcement included a requirement for VWP-participating countries to screen travelers crossing their borders from third-party countries against U.S. counterterrorism information.  Another change that more closely aligns with the Administration’s pattern of tightening the rules for entry into the U.S. requires VWP countries to engage in a public information campaign aimed at reducing visa overstays.  This public information campaign requirement will be applied to any country where more than 2% of its nationals overstay their 90-day stay in the U.S.  Current statistics show that only 4 of the 38 countries that participate meet this threshold – Greece, Hungary, Portugal, and San Merino.

DHS has historically struggled to monitor and enforce exit requirements. With these new VWP requirements, we may see efforts to better track VWP travelers, which may mean more countries being subject to this new public information campaign requirement.  But more importantly, it is not yet clear what kind of an “information campaign” would be deemed sufficient for a country to comply, how it would be monitored and what kind of unilateral action will be taken if a country is deemed noncompliant.  What we do know is that the DHS Secretary has the authority to designate and remove countries from the VWP.  Without a clear roadmap of how these new requirements will be monitored or implemented, there is some cause for concern that a country could be removed at any time.

Now more than ever, business travelers should keep in mind that overstaying the 90-day period even by one day not only makes the person deportable from the U.S., but can also mean losing the privilege of using the VWP.  To visit in the future, a B visitor stamp would have to be obtained at a U.S. consulate for any entries into the U.S., and the B visa applicant may have to explain their overstay to a consular officer.

The increased requirements on the VWP follow the Administrations’ efforts to increase enforcement and restrictions in the immigration arena.  Stay tuned.

Seyfarth Synopsis: The Department of Homeland Security (DHS) published its regulatory plan for 2018, which aligns with President Trump’s Executive Order, Buy American Hire American.

Although the specifics of each proposed rule will remain confidential until published in the Federal Register, the Regulatory Agenda does provides insight on what is likely ahead.  Changes to the existing visa programs will be accomplished through a notice and comment period, and will not become effective immediately.

H-1B Cap Lottery Pre-Registration and Selection

DHS will propose a rule that would require all H-1B petitioners to pre-register for the H-1B lottery.  Only those petitioners that have been selected in the lottery could then submit H-1B petitions for that fiscal year.

As introduced in the Buy American Hire American Executive Order, DHS is also expected to propose a priority system for the allocation of H-1B visa numbers.  Priority would be given to the beneficiaries that DHS deem to be the most highly skilled and also the highest paid. (Potential Publication Date: February 2018)

H-1B Eligibility

The proposed rule would revise the definition of “employer-employee relationship” and add new requirements designed to ensure that employers pay appropriate wages to H-1B workers.  In addition, the rule is expected to raise the standard on what constitutes a specialty occupation with the stated goal to “increase the focus on truly obtaining the best and brightest.” (Potential Publication Date: October 2018)

Termination of H-4 Work Authorization

DHS will propose the elimination of the February  2015 regulation permitting certain H-4 spouses to apply for employment authorization.  (Potential Publication Date: February 2018)

Revisions to Practical Training for Foreign Students

Immigration and Customs Enforcement (ICE) may issue a proposed rule to reform the practical training programs for foreign students.  Revisions will likely include additional employer obligations and possibly a rescission or limitation of the Obama Administration’s extension of STEM Optional Practical Training from 17 to 24 months.  (Potential Publication Date: October 2018)

Summary

DHS’s Regulatory Agenda for 2018 contains many changes that could greatly affect employers’ business immigration programs as they pertain to individuals in H-1B, H-4 and F-1 status.  Although some of these proposed rules could be introduced as early as February 2018, the rules must first go through a notice and comment period followed by a formal approval process that will take many months to pass.  Seyfarth Shaw LLP will closely monitor these developments.

Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.

U.S. Citizenship and Immigration Services (USCIS)

In the event of a shutdown, USCIS will be minimally impacted because it is largely a fee-funded service.  This means USCIS will continue to process applications and petitions for immigration benefits, with some processing delays possible.  However, petitions for which a Department of Labor (DOL) certification is required — such as an H-1B or E-3 petition that requires a Labor Condition Application (LCA) — may be adversely affected, as discussed.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during a shutdown.  Employers must continue to complete I-9 forms in compliance with the law and create cases in E-Verify if E-Verify becomes available.

Other agencies of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) would likely retain most of their essential staff, so it is expected that TN and L-1 petitions for Canadian nationals would continue to be adjudicated at the border.

Department of Labor (DOL)

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL,  are considered non-essential and would likely be placed in furlough status during a  government shutdown.  OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, applications for permanent employment certification (PERM applications), or PERM audit responses.

Department of State (DOS)

In the event of a shutdown, it is likely that visa issuance will continue, at least temporarily.  It is expected that domestic and overseas Consular operations will remain fully operational as long as sufficient fees exist to support operations.

Seyfarth Shaw’s Business Immigration Group is closely monitoring this developing situation.  If you should have any questions about how the government shutdown might affect your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.

Seyfarth Synopsis: This blog post is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2019. We recommend that employers identify any such candidates as soon as possible, as on April 2, 2018, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the fiscal year 2019 H-1B quota (which begins on October 1, 2018). It is likely that, as in previous years, USCIS will receive H-1B requests far in excess of the annual quota within the first week of filing eligibility, in effect resulting in a random lottery-type selection process. This occurred last year in the 2018 H-1B cap, which was reached in the first week of filing eligibility based on USCIS receiving over 199,000 H-1B cap petitions. The most conservative and recommended approach is to submit all 2018 cap cases during the first week of filing eligibility, which begins on April 2, 2018.

Background

There is an annual limit on the number of H-1B petitions that USCIS can approve during the government’s 2019 fiscal year (beginning October 1, 2018 and ending September 30, 2019). The H-1B cap for fiscal year 2019 is 65,000 (of which about 6,800 are reserved for nationals of Chile and Singapore under Free Trade Agreements with those countries). USCIS will begin accepting petitions for FY 2019 on April 2, 2018.

There is an additional quota of 20,000 H-1Bs reserved for persons holding a master’s degree or higher awarded by an accredited college or university in the United States. To be eligible for the “master’s cap,” the employee must have completed the master’s degree program prior to the filing date. This additional quota of 20,000 H-1Bs has historically not been exhausted as early as the general H-1B quota of 65,000. However, both the regular cap and the master’s cap were exhausted last year during the first week of availability.

If USCIS receives more than 20,000 H-1B petitions towards the so-called master’s cap, a separate lottery process is applied. USCIS will apply the random selection process to the master’s cap petitions prior to conducting the regular H-1B lottery. Any master’s cap petitions not selected in the master’s lottery will be eligible for selection in the regular H-1B lottery, effectively being granted two opportunities at H-1B status.

Exceptions

With some exceptions, current H-1B workers are not subject to the annual cap. Non-cap cases include H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position. In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.

Anticipated Unavailability of H-1B Work Permits Means Filing Early

In 2008, USCIS announced that it would apply the lottery process to all H-1B petitions received during the first five business days of the cap period, even if enough petitions were received to fill the annual quota on the first day of the filing period (i.e., April 1). We do not know how quickly the H-1B numbers will be exhausted this year, but the most conservative strategy is to assume that the H-1B numbers will be unavailable after the initial five-day filing period. Once the H-1B numbers are exhausted, new H-1B work permits will not be available until October 1, 2019.

Thus, to maximize the likelihood that affected employees will obtain an H-1B number effective as of October 1, 2018, employers must be in a position to file the H-1B petition with the government between Monday, April 2, 2018 and Friday, April 6, 2018. We are preparing “cap-subject” H-1B petitions at this time and recommend that employers begin the process now for any employees or candidates who need an H-1B.

Persons Affected

The persons who need to file an H-1B include any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization (known as Optional Practical Training or “OPT”) expires. In addition, any pending hires should be assessed to determine whether an H-1B will be needed for eventual continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States. Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may need to convert to H-1B status.

“Cap-Gap” Relief for F-1 Students

Under a rule issued in 2008, DHS grants “cap-gap” relief to F-1 students whose OPT expiration dates fall between April 1, 2018 and September 30, 2018 and whose employers have filed H-1B petitions on their behalf. Such students will be given a bridge of both status and work authorization until October 1, 2018. This means that individuals in the U.S. in F-1 status who are completing OPT and whose employers have filed H-1B “change of status” petitions on their behalf will have their work authorization automatically extended until October 1, 2018 (the required start date on the H-1B petition), provided that the H-1B petition is received and approved. These individuals will not experience the gap in employment eligibility or in status that may otherwise have occurred. If the petition is rejected or denied prior to October 1, 2018, the “cap-gap” employment eligibility ends immediately.

In addition, the 2008 “cap-gap” rule grants a bridge of status — but not work authorization — to individuals in the U.S. during the 60-day grace period following completion of their F-1 status who do not hold a valid EAD. This means that individuals in the U.S. in F-1 status who are in their 60-day grace period and whose employers have filed H-1B “change of status” petitions on their behalf will have their status, but not employment authorization, automatically extended until October 1, 2018, provided that the H-1B petition is received and approved.

Alternatives to the H-1B Work Permit

In some cases, there may be alternatives to the H-1B work permit. If an affected employee falls into one of the following categories, that employee may not need to file for an H-1B work permit in April:

  • Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all H-1B eligible Canadian or Mexican employees will qualify for TN status.  In addition, TN visa classification falls under the North American Free Trade Agreement (NAFTA) which continues to be closely examined by the current administration.
  • Citizens of Australia, Chile, or Singapore.
  • The spouse of an L, E or H-1B work permit holder, who is eligible for spousal employment authorization (EAD).
  • J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2017.
  • With limited exceptions, H-1B employees who have held H-1B status at any time during the last six years with a cap-subject employer.
  • A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.
  • Certain other foreign nationals who may qualify for O, E, or L visas.

Conclusion

Employers must act now to identify and begin H-1B processing for candidates or current employees who require sponsorship and who do not meet one of the above exceptions. If an employer misses the filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work.

Seyfarth Synopsis: Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump’s September 24, 2017 Presidential Proclamation.

The Presidential Proclamation is the third in a series of executive actions ostensibly aimed at protecting the U.S. from terrorism and other national security threats through barring or limiting U.S. travel for nationals of eight countries.  The first such action, published on January 27, 2017, was revoked in the wake of several successful legal challenges.  It was replaced on March 6, 2017 with a more narrowly tailored version.  Challenges to this second version prevailed in Hawaii Federal District Court and also before the Ninth Circuit, and they are now being considered at the Supreme Court.

On October 17, 2017, just one day before the Presidential Proclamation was set to take effect, a federal judge in Hawaii called into question the Trump administration’s claim that it will enhance national security.  The judge accordingly ruled that the plaintiffs’ challenge to the Proclamation will likely prevail.  He further found that, unless enjoined, the Proclamation will cause the plaintiffs to suffer irreparable harm in the form of familial separation, loss of access to potential foreign students who would attend schools in Hawaii, and diminished vibrancy at Muslim religious associations within the state.

In the early morning hours of October 18, 2017, a federal judge in Maryland also ruled that the plaintiffs are likely to prevail, would suffer irreparable harm, and further opined that the Proclamation amounted to an unconstitutional Muslim ban.  The judge pointed to several of President Trump’s disparaging campaign speeches and tweets concerning Muslim immigrants to support his conclusion.

As a result of the rulings in Hawaii and Maryland,  all U.S. travel restrictions imposed against nationals of Iran, Libya, Yemen, Chad, Somalia, and Syria have been lifted.  However, as the restrictions applicable to nationals of Venezuela and North Korea were not challenged in either Hawaii or Maryland, they remain intact.

The Trump administration has signaled that it will challenge these decisions and further developments will likely emerge rapidly.  Individuals from restricted countries who are considering travel to or from the U.S. should exercise caution and should anticipate increased screenings, potential delays, or even refusal of admission.

Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government’s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers. As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law. Prior to this, the often touted “record settlement” included IFCO Systems North America Inc.’s (IFCO) $20.7 million dollars from 2006.

While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies. The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible. If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really “just” a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).

We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE’s immigration priorities-, and promoting “Buy American, Hire American” policies. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread “desk audits” or “silent raids” of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected. This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.

The Story Behind Asplundh

Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case – how did they get here?

ICE’s six – year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States. But more importantly, the charges noted that “the highest levels of Asplundh management remained willfully blind.” Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney’s Office announced on September 19, 2017 that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas in connection with this case, with each defendant facing prison time and fines.

ICE Acting Director Thomas Homan stated in its September 28th announcement that “[t]oday’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet” (emphasis added).

The charge was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney’s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States. More specifically, as noted in ICE’s statement, the six year investigation revealed that from 2010 to 2014, “the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.” The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines – a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.

While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts. As noted in the company’s own statement, Asplundh has already taken some corrective action, including:

  • Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.
  • Revising hiring procedures to verify each identification examination for every new hire.
  • Investigating every complaint of potentially undocumented workers.
  • Retaining a third party consultant to review actions and procedures.
  • Presenting the company compliance program to ICE for review.

These corrective actions are reminiscent of what we saw with IFCO and changes that IFCO made in 2006 as part of its agreement with ICE. Recent history has shown us ICE’s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.

What Does This Mean for Your Operations?

The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made. From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.

Compliance with Form I-9 requirements should be a priority – not an option – for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability. Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda. Businesses can begin taking a proactive approach and action on the following fronts:

  • Preventative Audits – Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a “desk audit” or a full on investigation. Remember, if the company has been audited once, you are on the government’s radar with secondary inspections and active investigations a possibility.
  • Train, Train, Train – Human Resource teams and their delegates need to consistently and accurately complete Form I-9s. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.
  • Improve or develop policies and procedures – Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more “decentralized” approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities. When the process is identifiable, then accountability can be, too.
  • Manage compliance – Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals. For the company it can also mean a PR nightmare. Dedicating top management level resources to oversee a company’s immigration compliance program should be a top consideration.
  • Prepare for possible workplace disruptions – Whether the current Administration steps up enforcement actions is not really the motivating factor. As depicted in the excerpt below from the Department of Homeland Security – U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties. The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.

For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless of the party controlling the executive branch. Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.

As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.

Seyfarth Synopsis: On September 15, 2017, Seyfarth Shaw partner and former U.S. Citizenship and Immigration Services director Leon Rodriguez, joined other former Department of Homeland Security Officials in filing an amicus brief in support of the State of Hawaii and other plaintiffs challenging the travel ban. 

The brief, which was also signed by former Homeland Security Secretary Janet Napolitano and former Customs and Border Protection Commissioner Gil Kerlikowske, explained that individualized assessments, based on the rigorous vetting methods already in place at the time the travel ban was first instituted, provide far more effective protection for the United States than wholesale bans based on a traveler’s country of origin.   The brief cites congressional testimony about the refugee vetting process given by Mr. Rodriguez during his time as director of U.S. Citizenship and Immigration Services.

A link to the brief is available here.