While immigration debates, policies and rules make the news seemingly every day, very few new laws or regulations have actually been implemented for employment-based immigration. Behind the scenes, however, strict new interpretations of existing laws and under-the-radar changes in enforcement have significantly impacted the ability of companies to transfer, hire and keep foreign employees in the United States. Several key changes have been buried in seemingly innocuous policy memorandums or government websites. The impact on companies can be both real and urgent.

While these changes have occurred in different areas, there is one central theme: there is little to no margin for error on the part of employers or employees. In an ever-changing environment where compliance is paramount, there are a few key points to remember:

Compliance Employers should exercise extra vigilance given the consequences for even minor immigration infractions have dramatically changed. Two examples include:
  • The USCIS has increased the risk that students, including those with OPT or STEM OPT work authorization, could unintentionally violate status and accrue unlawful presence. Additionally, the USCIS website indicates that third-party placement of STEM OPT holders constitutes a violation of status, an assertion not supported by the governing regulations.
  • The USCIS has also indicated that it will seek to initiate removal (deportation) proceedings immediately against individuals who fail to maintain status as the result of a denied petition or benefit request.
Preparation Do not assume that the amount and types of information that have generally resulted in successful immigration filings in the past will continue to have a successful result. Prepare well in advance for any type of immigration requests and be prepared to provide a level of detail and documentation that may seem more burdensome than previously required. The USCIS recently confirmed that it may deny immigration filings without first issuing a Request For Evidence, if certain baseline information is not provided in the initial filing.
Planning Know when your employees are traveling internationally. Given increased government scrutiny, strict interpretations of the law, and a “culture of no” at the US ports of entry, international travel poses increased risk and could impact any currently pending immigration requests, as well as the employee’s ability to return to the United States. Additionally, representations made by individuals at US Consulates and at ports of entry must be 100% accurate. The current Department of Homeland Security broadly interprets “misrepresentation” and is conducting increased site visits and retroactive reviews of previously approved immigration benefits to ensure accuracy, creating an increased risk of exposure.
Communication Stay in close communication with your foreign national population and business managers, plan ahead for any international travel or changes in employment, and coordinate with your Baker McKenzie team to discuss the implications and risks involved.

All signs indicate that the current environment for immigration will continue to change and that enforcement will increase in ways not previously seen. Immigration is a daily headline and your foreign national population is likely aware of the news and rumors, whether accurate or not. Your Baker McKenzie team will help you stay abreast of current issues, discuss the implications for your business, and address the concerns of your employees whenever necessary.