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Recent media coverage highlights incidents relating to enhanced vetting and potential travel bans of foreign nationals by State and Homeland Security officials at US Consulates and US ports of entry. Several countries have issued travel advisories for the United States. While the reported cases impact a limited number of individual travelers, the widespread news has…

President Trump has taken quick action to ramp up immigration enforcement in his first days in office. While Trump’s early focus on deportations and border security is not new, the swift and aggressive enforcement approach represents a significant change as compared to prior administrations. These actions have led to arrests and heightened concerns among employers and employees alike.

What do employers need to know?

Since Trump’s inauguration, there has been a significant increase in targeted enforcement measures against individuals present in the United States who are not U.S. citizens who have a criminal record, and also recent arrivals to the United States who do not hold lawful immigration status. The vast majority of immigration enforcement since January 20 has occurred in private residences and public spaces, though there have been immigration enforcement actions at worksites. There have not been reports of wide-scale worksite raids yet, though the focus may shift to worksite inspections in the next wave of enforcement activities.

Worksite enforcement inspections can take a variety of shapes. In particular, employers should be prepared for the following:

  • Fraud audits in relation to employer-sponsored visa holders;
  • Administrative I-9 audits;
  • Arrests of targeted individuals; or
  • Raids based on suspicion of undocumented workers at worksite facility.

Continue Reading The Post-Inauguration Playbook: Spotlight on Immigration Enforcement and Raids

President-elect Trump’s announced (and rumored) Cabinet member selections confirm that immigration enforcement will be a top priority from day one. With less than two months before inauguration day, US employers should take action now to ensure they are compliant with immigration regulations, are prepared for worksite ICE (Immigration & Customs Enforcement) or DOJ (Department of Justice) raids or enforcement activity and are ready to respond to government investigations or employee complaints regarding the employment of foreign workers.

We recommend the following three steps:

1. Conduct an Internal I-9 Audit

We expect to see a significant rise in worksite inspection and I-9 audits from the incoming administration. All employers are required to verify the work authorization of all employees in the United States by completing and maintaining the Form I-9. Employers should conduct internal I-9 audits every 2-3 years to identify potential liability and make necessary corrections; conducting an internal audit with counsel is a helpful tool to protect the audit under attorney/client privilege. Immediate steps employers can take include:

  • Conduct an internal I-9 audit if one has not been completed in the past 3 years.
  • Review current protocols and conduct internal training to ensure a consistent and complaint work verification procedure and prevent future errors.
  • Review electronic platforms to ensure they are complaint with I-9 regulations and audit ready.

Continue Reading The Pre-Inauguration Playbook: Steps US Employers Should Take to Ensure Immigration Compliance as We Enter a New Era of Enforcement

Donald Trump’s return to the White House in January will have a profound impact on immigration law and enforcement. While the Trump/Vance ticket made immigration a central focus of its campaign, the platform took aim at asylum law and unlawful immigration rather than legal immigration and employer-based immigration. Trump’s first term provides strong clues about potential policy and enforcement changes, though uncertainty remains for employers.

Potential Changes to Employer-Based Immigration

Trump’s first term in office did not result in major legislative changes to immigration law, but enforcement methods and interpretation of existing laws varied drastically from historical norms. Potential changes in a second Trump administration could include:

  • Increased worksite enforcement
  • Restrictions for visas and permanent residence for certain countries
  • Attempts to eliminate the STEM OPT program
  • Attempts to increase prevailing wage rates for H-1B and permanent
    residence processes, aiming to price employers out
  • Increased denials across the board with USCIS and DOS (e.g., 21-24% H-1B denial rate)
  • Increased corporate investigations in relation to protection of US workers (e.g., investigation of PERM practices, hiring practices, and alleged preferential treatment of foreign workers)

Continue Reading Trump Back in Office: What Employers Can Expect Regarding Employer-Based Immigration

We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of key updates from Austria, Italy, Japan, Philippines, Singapore, Thailand, and the United States.

Click here to view.

  • An overview of key global immigration and mobility issues to consider related to immigration, employment, compensation and employee benefits, income taxes and social insurance, and global
…

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 5th 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.Continue Reading Beyond Borders: How US Multinational Employers Can Master Immigration Compliance