Sept. 3, 2018

This paid piece is sponsored by Woods, Fuller, Shultz & Smith PC.

By Amanda Bahena, immigration attorney

It is important that employers are aware of recent changes to U.S. Citizenship and Immigration Services, or USCIS, practices and policies, especially because many businesses in the Sioux Falls region rely on foreign workers.

First, U.S. Immigration and Customs Enforcement has announced its intention to increase the number of I-9 audits. This means an increased likelihood of fines for businesses not complying with I-9 requirements, workplace raids for businesses employing a high number of immigrants and increased fines for noncompliance. In the past, ICE has been willing to negotiate and reduce fines, but the new policy removes much of the officers’ discretion to do so.

ICE’s updated approach to I-9 compliance means that businesses need to be prepared in the event of an I-9 audit. Businesses must ensure that every new employee completes an I-9, that I-9s are retained for the correct amount of time and that errors discovered upon review are amended using the correct notations. Employers should establish best practices to ensure the business is prepared in the event of an I-9 audit. If ICE decides to conduct an audit, it must give at least three-days’ notice to the business. If this happens, the business should contact a lawyer immediately.

Second, in July 2018, USCIS announced two polices that are important for any businesses employing  foreign workers. Under the first policy, USCIS has stated that it will begin denying more applications that lack required documents or evidence. Traditionally, when a required document was missing from an application, USCIS would send a request for evidence, giving the applicant a chance to correct the deficiency.

The new policy means that more applicants will need to reapply and repay government filing fees if a key document is omitted from the original application. This policy could lead to missing key deadlines, with drastic consequences to immigrant workers and their employers.

In addition to the first policy, USCIS announced that an immigrant who is present in the United States while waiting for a visa and whose application is subsequently denied — for any reason, including missing required documents per the first policy — may be issued a notice to appear. The order places an immigrant in removal proceedings and may result in the immigrant’s removal from the United States. Taken together, these two policies mean increased rejections at the submission stage and more immigrants being placed in removal proceedings upon a rejected application.

Although the effects of these policies are still unknown, the consequences on employment-based visas could be severe. For example, if an H-1B worker’s extension request is denied because of a missing document, then the immigrant could be considered unlawfully present and lose the ability to extend H-1Bstatus. USCIS could issue a notice to appear, and the immigrant employee could be placed in removal proceedings.

As immigration policies become less forgiving, businesses should review and update their immigration practices. If an employer is unsure how to navigate these new policies, the employer should reach out to an experienced immigration attorney.

To learn more about immigration options and employer compliance, contact Amanda J. Bahena, an immigration attorney with Woods, Fuller, Shultz and Smith PC, at [email protected].