Foreign Workers in the Trump Era - Immigration Compliance and Managing Your Workforce

Date: October 25, 2017

Originally published in Association TRENDS magazine.

On the campaign trail, now President Trump spoke of getting tough on immigration violators – both those unlawfully present in the U.S. and the employers who facilitate their presence here by hiring undocumented workers. Many articles followed as to precisely what this get tough attitude would mean with respect to worksite enforcement, including I-9 compliance, as well as to those employers who currently employ work authorized aliens in lawful status.

Since Jan. 20, 2017, the primary focus has been on the “travel ban,” which primarily affects nationals of six countries. Under the original order, lawful permanent residents could have found themselves barred from the U.S. if they traveled abroad, and nonimmigrant workers, in lawful status, could have found their visas revoked. Therefore, employers with workers who held citizenship from these six countries, would need to consider the possibility of the employee being unable to return to the U.S. if they traveled abroad, or having their lawful visa status cast into doubt. While the current travel ban is less extensive, a victory at the Supreme Court for the administration could open the door to broader restrictions.

There has also been a clear uptick in enforcement activity. Though, it is almost entirely at an individual level, with the official focus on alleged “criminal” aliens. This standard has been broadly read to include persons with outstanding orders of removal, and even DACA recipients (usually students who came to the U.S. when young), may have been granted deferred action to permit them to remain in the U.S. and obtain work authorization under the prior administration. It is too early to determine whether enforcement activity against employers has increased; however, given the doubling of fines last November, and a new mandatory I-9 form coming into effect in January, employers are urged to review their compliance policies immediately.

Other potential areas of concern include the H-1B program, which is the mechanism through which employers are able to hire foreign professional workers to offset shortages of such workers in the U.S. The administration has indicated an intent to increase scrutiny of H-1B petitions and to strengthen its fraud investigations. As of this writing, however, the only concrete actions have been the elimination of premium processing, ostensibly for backlog reduction purposes, and narrowing the eligibility of computer programming occupations for the visa category. Other changes, such as restriction the visa category to high paying occupations, have also been suggested.

Finally, consular offices have started to vet certain visa applicants more closely; part of the “extreme vetting” promised as part of the general election campaign. This vetting includes asking for social media handles, accounts, and other such information. A supplemental questionnaire came into effect on May 25, which is being used to obtain more detailed information from selected visa applicants. This program is currently temporary, and scheduled to expire in November, but it seems likely that it may be extended permanently. The net effect for employers is that they may encounter delays with the arrival or return of foreign workers whose home countries fall within the net of this new vetting procedure.

Overall, these changes reflect a fluid environment for immigration compliance, and association employers are well advised to keep abreast of new developments and understand how they may affect their current workforce.