Employment Law Forum --

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2018-03-22 25K 25 0 0

Employment Law Forum -- - Description

Immigration Panel. . . Moderator. . . Jeffrey . S. Horton Thomas, Partner, Head of the Hospitality Group, . . Thomas . Employment Law Advocates, APC. . Panelists. . . Michael . Boshnaick, Partner, . . ID: 660896 Download Presentation

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Employment Law Forum --

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Presentations text content in Employment Law Forum --




Forum --

Immigration Panel



S. Horton Thomas, Partner, Head of the Hospitality Group,


Employment Law Advocates, APC



Boshnaick, Partner,


Deanne M. Bringle, Senior Manager, Relocation, Immigration & Compliance,


Brothers Entertainment Group of Companies

Angelo A. Paparelli, Partner,


Shaw LLP


Buy American and Hire American

Executive Order


Buy American and Hire American

" Executive Order

Directs DOL, DHS, DOJ and DOS to propose changes to H-1B and other employment-based immigration regulations and policy

Offers no specifics, but generally asks for agency recommendations on:


cap allocation to prioritize advanced-degree holders and high-wage earners, similar to proposals in Grassley-Durbin and Lofgren legislation

Wage increases - though some reforms could only occur through legislation, officials have suggested that the Administration believes it can accomplish some wage reforms administratively, e.g., recent guidance on computer programmers and Level 1 wages


Buy American and Hire American

Executive Order




with the enforcement-related announcements issued by USCIS, DOJ, and DOL

Order encourages all immigration agencies to more vigorously enforce H-1B program violations, particularly “fraud” and “abuse”, which the Administration defines separately

In the H-1B context, “abuse” is bringing workers into the US to undercut the American worker, and not because business requires their skills or talents


Buy American and Hire American

Executive Order (cont’d.)

Other possible changes:


in H-1B filing fees

Across-the-board administrative and legislative reforms for employment-based immigration programs

Impact on other visa programs

Encourages broad crackdown on fraud and abuse throughout the immigration system

Trade-agreement categories - the fact that the EO is paired with trade provisions suggests that changes to these trade agreement immigration provisions programs may be under



Buy American and Hire American Executive Order (cont’d.)


some in the Administration believe H-1B prioritization can be accomplished by regulation, senior Democratic and Republican House staff believe regulatory options are very limited because of INA’s “first-come, first-served” language. If prioritization regulation is issued, a court challenge is likely

Likely to be debate on high-skill immigration in this Congress, but majority wants to address enforcement first. Health care and tax reform will take priority over immigration. There will be also be an appropriations battle this fall. H-1B provisions could be attached to a spending bill


H-1B Specialty Occupation

April 2017 USCIS policy memorandum takes the position that computer programmer positions are not presumed to be eligible for the H-1B program, rescinding a legacy Nebraska Service Center memorandum

Level 1 wages “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation”

But entry-level positions are not inconsistent with a specialty occupation claim – Legislative history of the H-1B provisions of Immigration Act of 1990 recognizes that “certain


workers with highly specialized knowledge are needed in the United States …” See H.R. Conf. Rpt. 101-955 at 67; 1990 U.S.C.C.A.N. 6710, 6747) (Oct. 26, 1990) (emphasis added)

Occupations under scrutiny

IT occupations generally, including computer programmers, software developers, computer systems analysts

Research analysts


Product managers


H-4 EAD Litigation

Save Jobs USA v. DHS

appeal remains pending in federal court

Trump Administration has asked the court to hold proceedings in abeyance for six months while it considers rulemaking; the court has not yet ruled on the government’s motion

Could result in a restriction or elimination of the H-4 EAD regulation and indications are that the Administration is planning to rescind the H-4 EAD regulation

Timing is not yet known


Offered Wage and FLSA Compliance

USCIS adopted the Administrative Appeals Office’s decision in

Matter of I-Corp.

, Adopted Decision (AAO Apr. 12, 2017)

, a case that involved an L-1B worker who was to be paid on the foreign payroll


Petitions based on an illegal or otherwise invalid employment contract will be denied. Specifically, petitioners must establish that the beneficiary’s offered wage is not less than the minimum wage under state or federal law in order to be considered.

Decision validates the applicability of the FLSA on foreign workers in the United States on a L-1 visa

Employers should develop processes to ensure FLSA compliance for foreign transferees remaining on home-country payroll


NAFTA Renegotiation

Press reports indicate that the Administration plans to notify Congress of its intention to initiate renegotiation of NAFTA

Federal law requires the president to give Congress 90 days’ notice of his intention to revise a trade agreement

Must announce Administration’s goals for renegotiation

Must consult with key congressional committees

Negotiations expected to begin by late 2017

NAFTA requires six months’ notice for a party to withdraw

Administration’s intentions with respect to TNs, NAFTA L-1 and B provisions not yet known


60-day Grace Period

After cessation of employment, eligible nonimmigrants (E, H-1B, H-1B1, L-1, O-1 and TN) have a grace period of 60 days or through authorized validity period, whichever is shorter

No employment or self-employment during the 60-day grace period unless otherwise authorized under 8 § CFR 274a.12


EAD (Employment Authorization Document) Updates

Processing delays – New rule effective January 17, 2017 eliminates 90 day processing time requirement for EAD applications and provides no mandatory processing time

However, renewal application may be filed 180 days before expiration (was 120 days under prior rule)

180-day automatic extension of work authorization if individual


in the same EAD category or for TPS and application is timely filed

Includes: Adjustment applicants (c)(9); Asylees (a)(5); Refugees (a)(3); Grantees of withholding of deportation or removal (a)(10); those who properly filed application for asylum or withholding of deportation/removal (c)(8); TPS grantees, regardless of employment authorization category of current EAD (a)(12), (c)(19); TPS applicants deemed prima facie eligible for TPS (c)(19); Approved VAWA self-petitioners and their qualified children (c)(31



EAD (Employment Authorization Document)


H-4, L-2, and E spouses are not be eligible for automatic EAD extension upon timely renewal filing


I-9 purposes, the employer may accept: expired EAD and I-797 receipt notice showing timely filed renewal EAD application when verifying work authorization for employees with an automatic EAD extension


New M-274 and I-9 Form

USCIS has released an

updated M-274

, Handbook for Employers, dated 01/22/17, and a

table of changes

Key changes

Reflects November 14, 2016 revisions to Form I-9

Contains new instructions for employment verification under the new AC 21 regulation, including the automatic EAD extension

Increased I-9 penalties

Revised edition of Form I-9 expected on July 17

Form will become mandatory on September 18

November 14, 2016 edition acceptable until then

Effective July 17, DOS Form FS-240, Consular Report of Birth Abroad, is an acceptable List C document


Extreme Vetting at U.S. Consulates

Visa applicant may be subject to increased questioning if consular officer determines that greater scrutiny is required to verify the applicant’s identity or to vet for terrorism or other national security-related visa ineligibilities


questions include information about:

Fifteen years of home address, employment, and travel history, including information on how the travel was funded

All passport numbers

Names and birth dates of siblings, children, spouses and partners

Social media platforms and identifiers used

May also be requested to provide details of international or domestic travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization

May also be asked to explain the details of their travel, and when possible, provide supporting documentation


to provide requested information may not necessarily result in visa denial, if the consular officer is able to conclude that the applicant has provided adequate information to determine the eligibility to receive the visa


Visa Adjudication Trends at U.S. Consulates

Increase in “Administrative Processing”

Uptick in substantive denials at the U.S. Consulate in London (as of July 2017)

More frequent verification emails from the DOS in end-client placement scenarios

Revocation of visas for individuals arrested for DUI in the U.S.


DOL Enforcement

On June 6, 2017, Labor Secretary Alexander Acosta announced DOL is increasing its focus on pursuing employers who commit visa fraud and abuse

DOL's planned enforcement initiatives include:


audits and investigations of employers to ensure they are complying with H-1B, H-1B1, E-3, H-2A and H-2B program rules

Changes to the LCA to give DOL greater capacity to identify employer violations and potential fraud

Greater transparency in DOL foreign labor programs

Could include more public disclosure of information about employers who use foreign labor programs

Increased coordination across DOL investigatory and enforcement units

Includes greater involvement of the DOL Inspector General, which has the authority to pursue criminal actions against program violators

Earlier this year, DOL also suggested it would seek legislative changes to broaden its authority to initiate administrative investigations, which is largely complaint-driven under current law


Department of Homeland Security

Interior Enforcement Policy

February 20, 2017 – DHS issues memorandum entitled “Enforcement of the Immigration Laws to Serve the National Interest.”

Memorandum contains significant modifications of Obama era enforcement and deportation policies

Obama administration Priority Enforcement Program terminated.

Section A: New removal priorities include:

anyone convicted of a criminal offense

anyone charged with a criminal offense

anyone committing acts which constitute a chargeable criminal offense


Department of Homeland Security

Interior Enforcement Policy (cont’d.)

“the Department no longer will exempt classes or categories of removable aliens from potential enforcement.”

Immigration and Customs Enforcement (ICE) directed to hire 10,000 additional officers and agents

Section B: Restoration of the Secure Communities and INA Sec. 287(g) programs

Fines and penalties – Section F of the policy directs issuance of guidance to ensure assessment and collection of all fines and penalties


ICE & E-Verify Enforcement

Immigration and Customs Enforcement

1200 worksite inspections last year, focused on critical infrastructure, organizations with national security implications

No current plans to increase number of inspections this year or change inspection strategy

Homeland Security Investigations division has begun to focus more investigative resources on immigration document and benefit fraud


Trump budget asks for funding for nationwide mandatory E-Verify. Currently, E-Verify has 724,000 enrollees, 2.8 million worksites and handles 23 million queries per year. An E-Verify mandate would double the E-Verify workload if the mandate is limited to new hires only


Local Law Enforcement Participation in Immigration Enforcement – Secure Communities and INA 287(g)

Secure Communities Program

Initiated in 2008

Provides real-time access to arrest information to Immigration and Customs Enforcement

replaced in 2014 by the now suspended Priority Enforcement Program

Now back in effect

INA Section 287(g)

Provides for


of state and local law enforcement officers to conduct immigration enforcement

287(g) officers receive all authorities of ICE agents to conduct immigration investigations and effectuate arrests

32 law enforcement agencies in 16 states participate


ICE Sensitive Locations Policy

Well-established ICE policies usually (but not always) prohibit enforcement at “sensitive locations” including but not limited to: hospitals, schools and churches. See,


Explicit exceptions:

national security or terrorism matter

imminent risk of harm

dangerous felon, terrorist suspect, or other imminent danger

risk of destruction of evidence

ICE has announced that that policy remains in effect. https://www.ice.gov/ero/enforcement/sensitive-loc


Authorities of Immigration Officers

Immigration officers’ activities in the interior (not at the border) are governed by the 4



100-Mile border exception



amendment prohibits entry into private buildings absent:

consent of the owner or their representative

ordinarily organizations implicitly consent to entry into public areas of their buildings

exigent circumstances, including imminent danger or “hot pursuit”

a court-ordered search or arrest warrant

In some very limited circumstances, officers do have the right to enter even non-public areas of a non-residential building without consent, including exigent circumstances or pursuant to a warrant.


Business’ Authorities / Responsibilities

Control of entry:




Businesses can and should establish

investigation-preparedness protocols on

how employees should handle visits by law enforcement officers, including immigration officers

Responsibilities include:

safety of employees and visitors

compliance with HIPAA and other laws that govern the privacy and confidentiality of patient and employee information


Policies for Law Enforcement


Safety and orderliness of the operating environment

For health care and similar facilities:

Patient privacy

Patient willingness to seek care

Supporting general public safety and compliance with law

Maintaining positive/constructive relationship with local law enforcement


Key Elements: Policies for Law Enforcement


Decisions on nature of cooperation with law enforcement

Physical access to premises

Level access to employees

Company security cooperation with law enforcement officers

Designation of key personnel

Greeter such as security personnel or desk personnel

on-site managers

legal counsel

If arrests allowed, procedure should be in place to avoid disruption of care environment

Policies can be different depending on which law enforcement agency. See Seyfarth Shaw Quick Guidance: What to Do In The Event of a Visit by DHS-ICE Agents: http://seyfarth.com/publications/MA



Future of Worksite Enforcement / Site Visits

Worksite Enforcement

Other than indications of hiring more agents, so far no indications of policy to conduct worksite raids

Site visits –

USCIS Memo – “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

Announces targeted enforcement prioritizing

H-1B dependent employers

Employers with H-1B visa holders work off-site

Employers for whom sufficient information can not be obtained from publicly and commercially available sources

Targeted site visits parallel DOJ announcements about enhanced enforcement


Site Visits (cont’d.)

USCIS identifies indicators of Fraud and Abuse

The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA).

There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers.

The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description.

The H-1B worker has less experience than U.S. workers in similar positions in the same company.

The H-1B worker is not working in the intended location as certified on the LCA.

Similar site visits expansions have been announced for L-1 and EB-5 visa categories


Sanctuary Cities and Loss of Federal Funding – Congressional Proposals

Executive Order: Enhancing Public Safety in the Interior of the United States, Section 9:

Defines sanctuary jurisdictions as those violating 8 USC 1373.

DHS, Declined Detainer Outcome Report:

Identifies jurisdictions that have failed to honor detainers

Department of Justice – Attorney General Sessions, April 21, 2017 letters to 9 jurisdictions:

Threatens removal of federal law enforcement funds unless in compliance with 8 USC 1373.


Workplace Enforcement

Develop and Enforce an Immigration Compliance Policy

Hire only authorized workers,

Honor antidiscrimination rules,

Discipline those who fail to comply, and

Consider other best practices



Workplace Enforcement

Place Controls on Employment-Based Immigration Sponsorship

Written justification to petition for work-visa or green-card benefits

for each foreign worker.

Centralize due-diligence and signature authority confirming facts stated in all immigration submissions.

Require systematic record-keeping and compliance on posting and

good-faith recruiting procedures.


Workplace Enforcement

Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct.

Avoid risk of deemed co-employment and of taint from the vendors’

immigration violations.

Make sure immigration letters for vendor employees are accurate.

Require vendors by contract to adopt enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.


Trump Effect: Overall Impact on Strategic Planning and Growth

Lack of predictability and uncertainty tied to an unpredictable federal administration and a governmentally-inexperienced politician/cabinet should provide us all with a “wild ride”

The overall policy agenda appears to be generally pro-business but with some “conflicting signals” and policy gaps unaddressed or unclear

Be wary and “on-alert” for Trump targeting (GM, Boeing, Lockheed, etc.)

Republican “sweep” will drive some legislative progress and alignment (with stubborn minority faction): healthcare and tax reform on the “short list”

Keep a close watch on the reaction of the states at a legislative level in 2017-2018


Mergers & Acquisitions – Immigration considerations

Involve immigration counsel early on during due diligence period

Assume or do new I-9s?

Assume LCAs or amend H-1Bs?

Amend nonimmigrant visa petitions?

Amend corporate Blanket L petition

Decide on


mmigration strategies to preserve “pipeline” immigration benefits for transferring employees – employment authorization and preservation of green-card eligibility

Decide whether contractual provisions on immigration successorship in interest are feasible in asset acquisition transaction.


Entry Ban Update


is affected?

Nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen and refugees from all countries unless exempt or granted a waiver

Exempt per Executive Order:

U.S. Lawful Permanent Residents

Dual nationals entering on a passport from a non-restricted country (not including Canadian permanent residents)

Multiple-entry US visa holders who are otherwise admissible

AOS applicants with valid Advance Parole

Those already granted asylum in the US

Admitted refugees or those whose travel has been formally scheduled by the

U.S. Department of State


Entry Ban

Update (cont’d.)


per SCOTUS (those with a credible claim of a bona fide relationship to a close family member in the U.S. or a U.S. entity


Those entering to visit or live with close family

Those entering to study at a U.S. school

Those entering having accepted an employment offer from a U.S. entity

BUT self-petitioners may not be exempt unless they can show a relationship with a U.S. entity

Unclear if an invitation from US for purposes of business travel will qualify


Entry Ban Update (cont’d.)

State of Hawaii v. Trump:

On July 13, the federal District Court in the State of Hawaii enjoined the government from applying the ban to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States

Ban may also not be applied to refugees who have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee

Discretionary waivers available for the non-exempt: must show denial of entry would cause hardship, entry is in national interest and would not pose risk to national security

Prospective expansion of the ban

According to news reports, on July 12, DOS issued cable to consulates calling for worldwide review of visa security measures

It is unclear whether the strict vetting procedures in cable will eventually replace the travel ban and extend beyond six restricted countries


Visa Waiver Program (ESTA) and the Entry Ban


not directly covered by the entry ban, Visa Waiver Program (VWP) travelers who have traveled to a country of concern since March 2011 may be restricted from using the Program

Dual nationals

of the U.S. or another country and Iran

, Iraq, Sudan or Syria citizenship are prohibited from using the VWP

Potentially affected VWP travelers should check the status of their registration in the

Electronic System for Travel Authorization (ESTA)

to ensure that it remains valid


Visa Waiver Program (ESTA) and the Entry



travel to a country of concern took place after their most recent ESTA registration, foreign nationals should reapply for ESTA for authorization to use the VWP in the future

A waiver or exemption from the VWP travel ban may be available for certain types of travel

If ESTA registration is cancelled or denied, a B-1/B-2 visa is required for business travel or


Make prearrangement with counsel for potential problems with CBP


Port of Entry or Pre-flight Inspection Post


Search and Seizure at the Border

Authority of Customs and Border Protection to inspect and download data from electronic devices in the possession of


citizens and foreign


Rights vary based on status:

U.S. citizens

U.S. lawful permanent residents

Nonimmigrant visa holder, and




Proactive measures employers and travelers should take.


DACA (Deferred Action for Childhood Arrivals)

The future of DACA work permits (EADs)

Handling requests from DACA employees to support applications for Travel

Permits (advance parole travel


Consider possible alternatives

adjustment of status

if married to a U.S.


itizen coupled with advance parole travel authorization and reentry.

adjustment of status based on “forgiveness clauses” (no fault of the individual or “technical reasons”

discretionary parole


Audience Questions & Answers

Jeffrey S. Horton






Deanne M.







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