President-elect Trump made immigration a significant issue in his campaign, promising to enact a host of immigration policies focusing on curbing illegal immigration and increased screening procedures. Although the details of any new immigration policies have not been set, it is likely that there will be an increase in enforcement and more restrictive adjudications across the board. With that in mind, here are a few New Year’s resolutions to implement in preparation for the likely changes in 2017 and beyond.
- Check your I-94 on each entry
An I-94 record is proof of foreign nationals’ immigration status in the U.S., including the class of admission and the date such status expires. Since Customs and Border Protection (“CBP”) stopped issuing paper I-94 cards and began digitizing the I-94 process, foreign nationals may look up their I-94 information on the CBP website. However, even if the foreign national was admitted properly by the inspecting officer and received a stamp in his or her passport, it is quite common to see errors on the online record.
Ensuring that one is admitted properly is critically important to maintaining status. First, the penalty for violating status for 6 months is a 3-year bar to entering the U.S. This increases to a 10-year bar if out of status for 1 year. However, even a foreign national who spends just one day out of status will have his or her visa voided pursuant to INA 222(g). Those who enter through the visa waiver program or ESTA and overstay are ineligible to return on the visa waiver program and must apply for a visa instead.
In the age of ever increasing information sharing between immigration agencies, it is important to always remain in status. Checking your online I-94 record is an easy way to do so. If you find errors, contact your immigration attorney to get it corrected right away.
- Stay out of trouble
Criminal issues can wreak havoc on an otherwise straightforward immigration petition and, at worst, lead to ineligibility and/or deportation. For example, the Department of State (“DOS”) recently implemented a policy of “prudentially” revoking nonimmigrant visas of individuals arrested for, or convicted of, driving under the influence that occurred within the previous five years. While a visa revocation does not become effective until the foreign national travels abroad and does not affect his or her underlying nonimmigrant status, the visa is no longer valid for travel back to the U.S. After departure from the U.S. a non-immigrant with such an arrest and/or conviction must apply for a new visa from a U.S. Consular post and will be referred to a panel physician for a medical exam to determine medical admissibility.
Additionally, although marijuana use was legalized for recreational use in more states this past election, the Federal government still regulates marijuana use under the Controlled Substances Act. Therefore, using marijuana continues to be an offense under federal law, regardless of any state law to the contrary. A marijuana conviction, or merely an admission to the elements of a marijuana offense, can cause a foreign national to be inadmissible to the U.S., with limited options for waivers available.
- Ensure your employees are work authorized
President-elect Trump has stressed that he will increase the enforcement of immigration laws and crack down on unauthorized employment. All employers are required to complete Form I-9 for each employee to verify his or her employment authorization. The Form I-9 is only a few pages, however, the 70 page M-274 handbook illustrates the challenges of proper compliance and the number of issues that can arise. Similarly, Congress may pass a law that requires all employers to register for the E-Verify program, an online system to determine employment eligibility of employees.
Incorrectly completing Form I-9 can result in significant penalties imposed on the employer. Penalties for I-9 paperwork violations range from $216 to $2,156 while the penalties for employing unauthorized workers range from $539 to $21,563 per unauthorized alien. Engaging in a pattern of violations can even result in criminal penalties.
Consistent with President-elect Trump’s focus on curbing illegal immigration and prioritizing American workers, employers with large numbers of foreign workers should prepare for an increase in government audits and immigration raids. Employers should ensure their records are accurate, but must also be careful not to over-document the file or engage in any activity that would discriminate against workers due to their national origin. An immigration attorney can conduct an internal audit to ensure that I-9 forms are properly completed and identify any practices that may not be in compliance.
- Prepare for site visits
The Fraud Detection and National Security Directorate (“FDNS”) is tasked with identifying threats to national security, public safety, or the integrity of the immigration system. FDNS officers perform background checks and fraud reviews at a national level as well as conduct targeted site visits where fraud is suspected. Currently, FDNS investigates nonimmigrants in the H-1B and L-1 visa categories, although this could be expanded to other visa categories as well.
It is important that front-end staff, human resources, and general counsel be prepared for such a visit. HR, foreign national employees, and managers should be familiar with the information contained in the Form I-129 petition to accurately respond to any questions by an FDNS site visit. Although FDNS officers will generally not reschedule a site-visit to allow immigration counsel to be present, some investigators will allow immigration counsel to be teleconferenced in for the interview portions of the site visit.
During the Bush administration, Immigration and Customs Enforcement (“ICE”) frequently used raids of homes and targeted workplaces as an effective way of apprehending undocumented immigrants, although total deportations have increased during the Obama administration. President-elect Trump has promised to deport 2-3 million undocumented immigrants who have committed crimes and is likely to rely on workplace raids to accomplish his enforcement agenda.
Once the Trump administration starts governing on January 20, details will emerge regarding the specific immigration policies to be implemented over the next four years. Foreign nationals, employers, and immigration attorneys would do well to initiate New Year’s resolutions in preparation for the immigration policies under the Trump administration. Contact an immigration attorney at Wolfsdorf Rosenthal, LLP for assistance with your immigration strategies in 2017.
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