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Preparing for an Increase in I-9 Worksite Enforcement

After reviewing data related to time spent by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) unit on worksite enforcement, Acting Immigration and Customs Enforcement Director Thomas Homan issued a directive “to increase that [level of enforcement] by four to five times.” A review of Homeland Security Investigations (HSI statistics from the prior administration reveals that the number of employer audits reached a peak in 2013 with 3,127 nationwide, but by 2016, audits had dipped to 1,279 audits (down 59 percent). The ICE directive comes just after an announcement of the largest fine on the I-9 enforcement record, as well as the White House release of President Trump’s interior enforcement principles which include making participation in the now-voluntary E-Verify program mandatory.

Ninth Circuit Approves Travel Ban 3.0, In Part

The Ninth Circuit Court of Appeals has ruled to allow President Donald Trump’s latest travel ban proclamation to go into effect – at least in part.

Employers Should Prepare Now for Increased ICE Enforcement

Increased immigration enforcement and a reduction in illegal entry into the United States remain among the Trump administration's highest priorities. Notably, Acting ICE Director Thomas Homan has reportedly ordered Homeland Security Investigations (ICE’s investigative arm) to increase its worksite enforcement actions by "four or five times" in the new fiscal year.1 In the past, ICE conducted worksite raids to arrest employees who lacked work authorization in the United States. While worksite raids have not yet occurred under this administration, they are expected to return soon, this time targeting aggressively both employers and employees.

Insights: Responding to Temporary Protected Status Extensions and Terminations

Having terminated Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone in May 2017 and having announced the limited extension of TPS for Haiti and Sudan until January and November 2018, respectively, the Trump Administration has turned its attention to Central America.

Do Not Respond to Emails Requesting I-9 Information

The USCIS has issued the following notice regarding scam emails requesting I-9 information

USCIS Will Begin Accepting Cap-Subject H-1B Petitions for Fiscal Year 2019 on April 2, 2018

U.S. Citizenship and Immigration Services (USCIS) will accept new H-1B petitions subject to the annual quota for fiscal year 2019 (FY 2019) starting April 2, 2018. Because April 1, 2018 falls on a Sunday, USCIS will accept cap-subject petitions for the year starting on the following business day, Monday, April 2, 2018. Employers should identify any current or future employees who may require new H-1B visas to work in the United States. Individuals currently holding F-1 student visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States will likely require a cap-subject H-1B petition to be filed on their behalf.

Mandatory E-Verify under Consideration in Congress

Every employer in the United States would be required to use E-Verify to determine whether employees are authorized to work if “The Legal Workforce Act of 2017” (LWA) is passed.

Business Immigration Zone (BIZ): Businesses Brace for H-1B Battle as Employment-Based Visas Become Harder to Obtain

Employment-based immigration is becoming increasingly difficult; the Trump administration just made it more difficult for companies to renew H-1B visas for foreign professionals who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the U.S. Citizenship and Immigration Service (“USCIS”) gave deference to past H-1B approval decisions. When due, this enabled H-1B visa holders to generally obtain extensions. USCIS recently rolled back that guidance and now requires no deference, so H-1B visa holders who seek extensions must again prove eligibility as though they are seeking H-1B visas for the first time. This policy shift will impose greater uncertainty, higher costs and labor delays to companies who rely on foreign talent. USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas.

USCIS Formalizes Policy on Lack of Deference to Previously Approved Petitions

All I-129 petitions, whether initial requests or requests for extension of visa status, will be subject to the same level of scrutiny, USCIS has confirmed. The agency will no longer defer to the findings of a previously approved petition even when the key elements of the petition have remained unchanged. This will affect most nonimmigrant workers in the U.S.

USCIS's Updated Policy on Adjudications of Nonimmigrant Worker Visa Petitions Rescinds Former Deferential Policy

On October 23, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) rescinded policy guidelines in effect since April 2004 regarding requests for the extension of certain nonimmigrant visas (i.e., visa petitions filed using Form I-129). Previously, an adjudicator’s determination that a non-U.S. citizen met the eligibility requirements for granting a nonimmigrant visa was given deference in subsequent requests for a visa extension where the parties (petitioner and beneficiary) and the underlying facts and circumstances remained the same. The new policy guidelines now eliminate this deferential policy, requiring an adjudicator to review any request for a nonimmigrant visa extension the same as the review of the initial petition. In essence, a new adjudicator may question another adjudicator's prior approval of the nonimmigrant petition, even if there is no material change in the underlying facts.