The regulatory landscape for immigration compliance is constantly evolving. To protect and keep top talent and to avoid tangles with the law, US multinational employers must stay on top of the latest legal decisions and guidance.

In this blog series, our team of Global Immigration and Mobility experts will share significant legal updates and practical strategies for maintaining compliance. In our first post, we highlight the possible implications of the SEC v. Jarkesy case for immigration courts, and highlight the DOJ’s recently-released Fact Sheet addressing I-9 compliance when using electronic platforms.

1. Challenge to the Validity of Administrative Judges Could Have a Major Impact on the DOJ’s Ability to Investigate Employers for Immigration Misconduct

A case currently pending in the US Supreme Court could have high stakes for administrative law judges in the immigration context–and, depending on the outcome, could theoretically open the door for challenging the ability of the DOJ to investigate employers for immigration-based discrimination.

Background

On November 29, 2023, the US Supreme Court held oral argument in SEC v. Jarkesy. Jarkesy, an investment advisor, had been found guilty by an ALJ of securities law violations. As a result, he was fined, barred from securities industry activities, and his firm was required to repay investors. Jarkesy challenged the SEC’s enforcement action at the 5^th Circuit, which agreed with Jarkesy, and the case was appealed to the Supreme Court. Notably, a core question before the Court is whether Congress’ decision to allow ALJs to be removed only for “good cause” violates Article II of the Constitution (requiring the President to “take Care that the Laws be faithfully executed.”)

Possible impact on ALJs responsible for deciding cases involving immigration-based discrimination by employers

During oral arguments, conservative justices expressed doubts about the constitutionality of the SEC’s current process, where ALJs handle violations and defendants are not entitled to a jury trial.

The arguments that could potentially weaken the authority of ALJs in the Jarkesy case–i.e., that defendants are unconstitutionally deprived of a jury trial when administrative judges address infractions–could also be extended to ALJs sitting within the Office of the Chief Administrative Hearing Officer (OCAHO), potentially depriving them of their ability to adjudicate cases. Defendants are already using this argument in ongoing cases in an effort to invalidate the DOJ’s immigration-related proceedings against them.

If the Supreme Court’s decision leads to the removal of ALJs at the SEC, it is likely that the authority of ALJs at other agencies will face subsequent legal challenges, including enforcement actions brought against employers by the DOJ for allegations of: (i) citizenship-based discrimination; (ii) national-origin-based discrimination; (iii) document abuse (relating to I-9s); and (iv) retaliation.

Employer takeaway

While a legislative “fix” to the issue of ALJ removal would potentially make the issue a moot point, such action would likely take several months if not longer to be implemented. Employers who receive complaints from the DOJ (or individuals) under 1324b should be hesitant to enter into a settlement, as the DOJ would have no mechanism to obtain a judgment if OCAHO is found to be unconstitutional.  

2. The DOJ Releases Guidance on Avoiding Discrimination and Other I-9 Violations When Using Electronic Platforms

The DOJ recently released a Fact Sheet to help employers avoid discrimination and other violations when using private sector software products to electronically complete, modify, or retain I-9 forms–and the guidance also applies to employers who use such programs to participate in E-Verify.

Additionally, the Fact Sheet outlines specific activities that are prohibited by employers when using Form I-9 software, including:

• Completing a Form I-9 on an employee’s behalf (unless helping an employee complete Section 1 as a preparer or translator), or preventing preparers or translators from assisting an employee to complete Section 1
• Changing or updating an employee’s Section 1 citizenship or immigration status attestation (any previous errors by the employee must be corrected by the employee or their preparer / translator)
• Removing any Form I-9 fields, or requesting more or different information than the Form I-9 requires
• Automatically prepopulating employee information from external sources (such as the employee’s job application)
• Using autocorrect, predictive text, or post-dating a Form I-9
• Failing to document any changes made to a Form I-9 in an audit trail
• For E-Verify employers, adding or removing steps in the E-Verify process (and software integration must comply with the E-Verify web services Interface Control Agreement)
• Creating new E-Verify cases due to corrections made to the Form I-9 if the employee already received an “employment authorized” result
• Requesting unnecessary documentation–such as reverifying an employee’s identity or impermissibly reverifying an employee’s permission to work in the US (e.g., based on the expiration of a US passport or green card).

The Fact Sheet also emphasizes that employers who use I-9 software programs should provide the personnel administering them with training and other support, and warns employers to be cautious of Form I-9 software programs that:

• Claim government endorsement, certification or approval (which the government does not do)
• Impose unnecessary obstacles that make it harder for employees to commence work or get paid (such as requiring a Social Security number to onboard or not paying an employee who can complete the Form I-9 but is waiting for a Social Security number)
• Do not provide technical assistance and support

Employer takeaways

Employers who use commercial Form I-9 and E-Verify software should review the Fact Sheet and ensure they follow the DOJ’s guidance, including meeting the requirements for using Form I-9 software, providing appropriate training and support, and ensuring they steer clear of prohibited activity to avoid allegations of violations. Moreover, employers should closely review the compliance of existing or new electronic platforms to ensure compliance.