On March 6, 2017, President Trump signed a new immigration-related Executive Order. This anticipated Executive Order comes on the heels of his controversial January 27, 2017 Executive Order which temporarily suspended the refugee program and temporarily banned individuals from seven countries from entering the United States. The earlier Executive Order was halted in part by a Ninth Circuit Court Order, and met with widespread protests nationwide. The March 6th Executive Order repeals the January 27th Order in its entirety, and will take effect starting March 16, 2017.

The March 6th, Executive Order opened with an approximately two-page clarification of the earlier Executive Order. In response to popular outcry against the January Order and judicial disapproval of alleged religious discrimination, this Executive Order addressed the idea of a “Muslim Ban,” explaining that the earlier Order “did not provide for a basis for discrimination for or against members of any particular religion.” It further set forth the Administration’s policy objectives surrounding national security and cited a 2016 Department of State report justifying a temporary ban for individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen on the basis of national security.

With this backdrop, the March 6th Executive Order’s key points are as follows:

  1. 90-day ban on individuals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq was left off the list this time. The Administration reasoned that a ban on Iraqis is unnecessary given the “close cooperative relationship between the United States and the . . . Iraqi government . . . .” While Iraq is not subject to the 90-day ban, Section 4 of the Order calls for a “rigorous evaluation” of applications by Iraqi nationals. The remaining countries present an “unacceptably high” threat.
  2. The Executive Order only applies to foreign nationals of the designated countries who:
    (a) are outside the United States on March 16, 2017;
    (b) did not have a valid visa at 5:00 P.M., eastern standard time on January 27, 2017; and
    (c) do not have a valid visa on March 16, 2017.
  3. There are several notable carve-outs narrowing the Executive Order’s scope. The Executive Order does not apply to: Green Card holders, dual nationals when traveling on a passport issued by a non-designated country, foreign nationals who have been granted asylum and certain others who hold select visas.
  4. Immigration officials are permitted to make case-by-case determinations to issue visas or permit the entry of foreign nationals for whom entry is otherwise suspended. The foreign national must demonstrate “undue hardship” and that the foreign national’s presence would not pose a threat to national security. The Order outlines instances in which such a waiver may be appropriate, including when the foreign national:
    (a) has been previously admitted for work, study or other long-term activity, and seeks to re-enter the United States to resume this activity;
    (b) seeks to enter for significant business or professional obligations;
    (c) seeks to visit a close family member who is lawfully in the United States; or
    (d) seeks urgent medical care or has a special circumstance.
  5. The United States Refugee Assistance Program (USRAP) is temporarily suspended for 120 days, and the 2017 refugee numerical cap is set at 50,000 refugees. However, the suspension does not apply to those who have been formally scheduled for transit by the Department of State.
  6. The Visa Interview Waiver Program is suspended, meaning that in most instances, a non-immigrant visa applicant will have to undergo an in-person interview.
  7. Several other provisions from the January Executive Order remain in place including the visa reciprocity review and the data collection directives in Section 10 and 11 of the new Order, respectively.

The Executive Order is clear that any immigrant or non-immigrant visa issued before March 16, 2017 shall not be revoked pursuant to the new Order. While this Executive Order is far more specific than the January Order, the implementation by the various agencies will be worth watching to understand its practical impact. Travelers are well-advised to ensure that all immigration-related documentation is in order, account for delays when traveling to and from one of the six listed countries, and maintain a contingency plan in case of unforeseen events in transit.

Haynsworth Sinkler Boyd will continue to monitor further developments in this dynamic immigration climate.

On November 14, 2016, the United States Citizenship and Immigration Services (USCIS) released a revised version of the I-9 Employment Eligibility Verification Form which will be mandatory on January 22, 2017.  The revised form can be accessed and now completed online from the USCIS website.

The revised form includes a number of changes designed to make it more “user-friendly” and alleviate common mistakes during the completion process, such as drop-down menus, instructional text and real-time error messages.  Additionally, a user will now be alerted if certain fields are left blank or completed incorrectly.  The new form is also designed to ensure that identity and employment authorization credentials, provided by the employee for use in completing Section 2 of the form, are consistent with the employee’s citizenship/immigration status reflected in Section 1. Printed instructions are no longer attached to the actual form, but can be accessed directly through links on the form or as a separate document which is consistent with current USCIS practice.  Despite the new features, employers can continue to print a blank form from the website and complete it by hand.

Although the current form with a revision date of 03/08/2013 is still valid, we recommend that employers begin familiarizing themselves with the revised form prior to the effective date of January 22, 2017.

The I-9 Employment Eligibility Verification Form (OMB Control No. 1615-0047), which employers use to verify and document the identity and employment authorization of each new employee hired after November 6, 1986, contains an expiration date of March 31, 2016.  Based upon information received from the USCIS, employers should continue to use the current form until the USCIS releases an update.  Note that the USCIS is working to develop a “smart” version of the I-9 Form to reduce user error and make the form easier to complete. The USCIS will release information about this new version of the I-9 Form if and when it becomes available.

Click here for a copy of the current form.

top10A couple of weeks ago, employment law practitioners from South Carolina and North Carolina gathered for the 31st Annual NC/SC Labor & Employment Conference. The program was filled with many highlights, including a presentation from David Lopez, General Counsel of the United States Equal Employment Opportunity Commission (“EEOC”).

Mr. Lopez discussed the EEOC’s “Top Ten Litigation Developments” and gave some valuable insight into the current trends and thinking at the federal agency charged with regulating and enforcing workplace discrimination. According to Mr. Lopez, the EEOC’s priorities are the following, in order of importance:

  • Number 10: Racial Harassment
  • Number 9: Disparate Impact in Background Screening (i.e., whether questions about applicant convictions has disproportionate effect on certain racial minorities)
  • Number 8: Sex Discrimination
  • Number 7: Preservation of Access to the Legal System (arbitration agreements, retaliatory conduct, etc.)
  • Number 6: The Importance of Juries (statistics show EEOC is often successful in jury trials)
  • Number 5: Discrimination Against Immigrant, Migrant, & Other Vulnerable Workers
  • Number 4: Reasonable Accommodations for Disabled Workers
  • Number 3: LGBT Coverage under Title VII
  • Number 2: Pregnancy Discrimination
  • Number 1 (tie): EEOC’s Pre-suit Obligations (what exactly are the conciliation requirements?)
  • Number 1 (tie) : Religious Discrimination/Accommodation

Obviously, there is a lot to discuss with this list, and future posts will dive into some of these issues individually – so be on the lookout! In the meantime, employers should review this list carefully and think about how you are being proactive to prevent these discriminatory practices – particularly ones that are gaining increasing media attention such as LGBT discrimination, pregnancy discrimination, and banning the box legislation.

A valuable and long-term employee has confidentially revealed to you that he or she is not who he or she claimed to be when originally hired. Since 2012, this scenario is occurring more frequently in part as a result of the Deferred Action for Childhood Arrivals or DACA program. On June 15, 2012, the Secretary of Homeland Security announced that certain individuals who entered the United States illegally as children may apply for deferred action allowing them remain in the US without fear of removal for a period of two years, subject to renewal. DACA does not provide lawful status, but it can provide temporary employment authorization.

When an employer learns that an employee’s identity is different from that previously used to complete the form I-9, the employer can retain the employee or terminate the employee for violating company policy, assuming the existence of applicable and equally applied policy. If the employer retains the employee, the employer should complete a new I-9 for the employee using the new credentials, but include the original date of hire in Section 2 of the new I-9 form. An employer should then attach the new I-9 to the old I-9 and include a brief written explanation for the change. The employer should also attach copies of the new credentials, assuming it does so consistently for all employees.

When preparing the new I-9 form, a DACA-authorized employee will complete Section I of the form, selecting that he or she is an alien authorized to work and will include the expiration date of the employment authorization card and provide his or her alien registration number (which appears on the card). Since the authorization will expire within two years, the employer will be required to re-verify the employee’s credentials to ensure continued employment authorization and should therefore calendar the expiration date at least 120 days prior to the expiration date, so that the employee has time to prepare and file a renewal application. Employers should note that the employee must provide the physical card and not a receipt notice from the USCIS to continue working.

While most employers will affirmatively answer the above question, upon review, we have found that many I-9 forms and compliance practices are deficient.  Currently, employers are subject to increasing scrutiny by Immigration and Customs Enforcement – Homeland Security Investigations, the investigative arm of the Department of Homeland Security, which has broad legal authority to enforce a diverse array of federal statutes, including immigration, employer compliance and document fraud.  HSI will review an employer’s I-9 forms as part of an audit and can impose significant monetary penalties for even minor documented noncompliance.

Since 1986, Section 274(b) of the Immigration and Nationality Act has required that an employer review an employee’s unexpired identity and employment authorization documents and attest under penalty of perjury on form I-9, Employment Eligibility Verification, that the employee is authorized to work in the US. An employer does not attest to the legitimacy of the documents when completing the I-9 form, but rather that it has reviewed the original documents presented by the employee and that they reasonably appear to be genuine and relate to the employee.  The employer must complete Section 2 of the I-9 form within three business days of the employee’s first day of employment, re-verify as necessary, and then retain the form I-9 for the longer of three years from the date of hire or one year from the date of termination. Despite the brevity of the I-9 form and relatively simple instructions, many employers do not take the time to ensure the I-9 forms are completed correctly and consistently, and we find that most employers do not have a written policy governing the hiring process.

We recommend employers take a proactive approach to compliance and annually conduct an internal audit, identifying errors on the I-9 forms and carefully correcting them.  Also, while not mandatory in all states, the employer may consider registering and begin using E-Verify, a free web-based system that allows an employer to quickly confirm the eligibility of a new employee. In certain instances, an employer may also consider participating in the ICE IMAGE certification program, a voluntary cooperative effort with ICE-HSI to review and strengthen hiring practices, ensure compliance, and minimize future enforcement and penalties.

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Learn more about immigration laws and other Hot Topics at one of Haynsworth Sinkler Boyd’s 2015 HR Law Updates scheduled for Anderson, Spartanburg, Sumter, Lexington, North Charleston, and Florence.