Worksite Enforcement

When you think of immigration in the United States these days, the first thought that comes to your mind might be the continuing dispute over building a wall at the Southern border. That topic has certainly received the most attention, but for employers, the more relevant issue remains the increasing worksite immigration enforcement measures. Here are some recent statistics from Immigration and Customs Enforcement (ICE):

  • FY 2018 – 6,848 worksite investigations were opened (compared to 1,691 in FY 2017)
  • FY 2018 – 5,981 I-9 audits were initiated (compared to 1,360 in FY 2017)
  • FY 2018 – 779 criminal and 1,525 administrative worksite-related arrests were made (compared to 139 and 172, respectively, in FY 2017)

As you can clearly see from these statistics, far more employers have been selected for an I-9 audit by the government last year, and many more criminal and administrative worksite-related arrests (not to mention monetary fines) have followed. This trend is projected to continue under the current administration, as it believes that worksite enforcement is “one of the most powerful tools ICE uses to ensure that businesses are complying with U.S. employment laws.”

Whereas larger companies were the more likely “target” for the U.S. government in the past, that is no longer the case. Recently, ICE conducted an I-9 audit of a Korean grocery store in San Diego. As a result of the audit of the employer’s I-9 forms, 26 people were found to be in the U.S. without authorization, and they were taken into ICE custody. Other detailed results of the investigation were not provided, but presumably, the employer was ordered to pay monetary fines for their violations.

As you can see, employers cannot predict when the government will pay them a visit. These audits can be completely random; they can be initiated through anonymous tips, or another agency can share information with ICE that prompts an I-9 investigation. Therefore, it is a good idea to get ahead of the I-9 trend and do an internal audit of your company’s I-9 forms with the help of an experienced immigration professional to make sure everything is in order, or address and resolve any issues – before the government arrives at your door.

H-1B Cap

Once again, we have entered the H-1B cap filing season. The H-1B is a popular nonimmigrant visa category that is available to highly skilled foreign nationals who are offered an H-1B-qualifying position by a U.S. employer. This is also known as a “specialty occupation visa” because in order to be eligible for this visa category, the position that is being offered to a foreign national must require a minimum of a bachelor’s degree in a specific field and the foreign national must meet that requirement.

For foreign nationals working in the U.S., one of the biggest advantages to being in H-1B status is that even though it is a non-immigrant visa category (as opposed to an immigrant visa category), you can have an intent to reside permanently in the U.S., which can be convenient when you begin the permanent residence process.

As there are more petitions filed than there are visa numbers available, USCIS conducts a lottery each year to select the ones that it will adjudicate. For this reason, all H-1B cap petitions must be filed in the first week of April. So employers – if you have employees in a nonimmigrant status (typically students in F-1 status and have temporary work authorization through an Employment Authorization Document), please speak with an immigration attorney right away to discuss whether to file an H-1B cap on their behalf this season.