Employers have been audited and penalized over the years for discriminatory practices against foreign nationals based on impermissible criteria, such as national origin, ancestry, native language, accent, looking or sounding “foreign,” or requiring more or different documents than allowed by law. Now, the focus has shifted to punishing companies that discriminate against U.S. workers, along with making it harder for legal immigrants to stay in the United States and for companies to continue to employ them. There are reports of increased worksite raids and an expansion of the scope of audits by U.S. Immigration and Customs Enforcement (ICE), which has announced it would like to open 15,000 ICE audits per year instead of the thousand or two typical of recent years.
In a recent survey by Littler, immigration enforcement issues and related policy changes were among employers’ top concerns. Respondents identified tighter restrictions on visa adjudications (48 percent) and increased workplace immigration enforcement (36 percent) “as the areas where they expected to see the most significant impact on their workplaces in the near-term.” Among other things, new H-1B data from U.S. Citizenship and Immigration Services shows that previously approved renewals are being denied at a higher rate and that there has been an uptick in requests for evidence when processing H-1B applications.
Finding ways to implement President Trump’s “Buy American and Hire American (BAHA)” order has become a central focus of federal agencies across the board. The order directs the Secretaries of State, Labor, and Homeland Security, and the Attorney General, to propose new rules and issue new guidance, and to supersede or revise previous rules and guidance if appropriate, “to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.” And those same agencies are directed to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
According to reports, one practical effect of this push is that issues are being raised that were not investigated in the past. For example, the Department of Justice’s (DOJ) Civil Rights Division’s “Protecting U.S. Workers Initiative,” launched in 2017, is aimed at “targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers.” Under that initiative, the Civil Rights Division has opened dozens of investigations and has increased its collaboration with other federal agencies “to combat discrimination and abuse by employers using temporary visa workers.”
It’s important to keep in mind that while the federal government’s focus has been shifting overall, DOJ is still investigating cases of discrimination against foreign nationals who are authorized to work in the United States. So just “keeping foreigners out” is a woefully inadequate strategy for an employer hoping to avoid problems, and is illegal in some cases if those foreigners are work-authorized.
It appears that despite regulatory rollbacks in other areas, the American employer may be caught between a rock and a hard place when trying to meet but not exceed immigration-related requirements in one direction or the other. Navigating these shark-infested waters is growing ever trickier.
Tips for Employers
When attempting to hire only work-authorized individuals, it’s critical not to become overzealous in one direction or the other and thus risk circumventing the law. Here are a few tips:
- Carefully follow the instructions on the Form I-9, Employment Eligibility Verification, keeping in mind that U.S. citizens are not the only type of employee authorized to work in the United States. Classes of legal workers also include lawful permanent residents and other noncitizens with work authorization.
- Confirm that every new hire has work authorization based on documentation listed on the I-9, but be sure not to require more or different documentation than what’s listed on the I-9.
- Do not treat workers or applicants in a way that arbitrarily prefers one class of legal worker over another, or favors “American”-looking or -sounding individuals over others.
- Consider conducting an internal audit with the help of an immigration law attorney.
- Consult with an experienced immigration law attorney to ensure that your company is meeting and not violating legal standards. Your attorney can help with understanding the requirements and periods of stay for various types of visas and determining which are appropriate for your employees; ensuring that preparation, planning, procedures, training, recruitment, advertising, and hiring practices remain within the law; and advising in specific cases.
- Your attorney can help ensure that paperwork requirements are met; that applications and petitions are filled out and filed properly and timely; that your records are complete and in order in the event of an audit; and that you receive competent, knowledgeable legal advice in the event of an audit or raid.
- Department of Justice’s Immigrant and Employee Rights Section
- Littler Annual Employer Survey, 2018
- USCIS H-1B data
- Buy American and Hire American Executive Order
- HR Daily Advisor, “Immigration Issues a Major Concern for Employers in the Upcoming Year”
- National Law Review, “Immigration: Take Action Now on H-1B Applications—Changes on the Horizon”