HR Webinar: Immigration Changes and the Impact to Employers: 2018-2019

Immigration Changes 2018-2019
and Their Impact on Employers
March 28, 2019
Bob Greene

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Today’s Speaker
Bob Greene currently serves as Channels Manager and Sales Trainer at Ascentis.
Bob’s 39 years in the human capital management industry have been spent
in practitioner, consultant and vendor/partner roles. As practitioner, he managed
payroll for a 5,000 person bank in New Jersey. As consultant, he spent 8 years
advising customers in HRMS, and payroll and benefits system design as well as
acquisition strategies. Bob also built a strategic HCM advisory practice for Xcelicor
(now Deloitte Consulting.)
As vendor/partner, he has had prominent roles in sales support, marketing and
product management at several companies and currently Ascentis. Bob has been
a Contributing Editor for IHRIM's Workforce Solutions Review journal, for the past
eight years. His experience also includes two years as Adjunct Lecturer in HRIS at
Benedictine University in Lisle, Illinois. In addition to his 39 years of experience,
Bob also holds a BA in English from Rutgers University.
Bob Greene

Agenda
• Introduction: Legislative Branch Inaction, Executive Branch Action!
• E-Verify
• Federal Contractor Mandate
• The State of the States
• Where To From Here?
• Penalties for Hiring Undocumented Workers
• Assessing and Mitigating Employer Risk
• Executive Order 13788: “Buy American, Hire American”
• Immigrant Employment: A Brief Review of Visa Rules
• EO 13788 Meets the H-1B Program
• Visa Processing Slowdown
• H-4 EADs Discontinued?
• Specialized Challenges in Visa Holder Administration
• FMLA
• Discrimination and Retaliation
• Steps an Employer Should Take NOW!

Disclaimer
• Legal advice
• A political opinion
This presentation is not:
Before Taking Any Actions
Before taking any actions on the information contained in this
or any other Ascentis webinar, employers should review this
material with their professional advisors.

Disclaimer
We could be reviewing the British Parliament, and their progress in
“debating” BREXIT!
And please remember, no matter how dysfunctional some of the US governmental activity
that we discuss here today, IT COULD ALWAYS BE WORSE!

Part I
Introduction:
Legislative Branch Inaction; Executive Branch Action

A Broken Immigration System….?
On January 25, 2019, the longest partial government shutdown
in US history ended after 35 days and an estimated $11 billion
aggregate impact on the American economy.
• The fundamental disagreement between the political “sides” of this argument was
immigration, and specifically the funding of a wall on the Southern border of the US.
• Given the subject matter fueling this dispute, one might expect that, upon resolution
and re-opening of the government, fundamental changes to immigration policy,
potentially impacting employers and their obligation to ensure a workforce that is
100% legally entitled to work within the US, would be put into place.
• One would be wrong.
• In fact, when it comes to immigration law, in the first two years of the current Administration, the
House and Senate have been responsible for little to any new laws or reform of what is generally
agreed upon by all sides to be a “broken system.”
• The prospects for the next two years, under politically divided government, aren’t much brighter on
the legislative front.
• But once again, as with employer compliance arenas like ACA, EEO-1 reporting, OSHA reporting, and
FLSA/Overtime reform (to name a few), there has been plenty of action within the Executive Branch.
• It just doesn’t always get publicized, so let’s review what’s occurred.
Executive Branch!
Judicial Branch!
Legislative Branch?

E-Verify and the I-9 Process
History of e-Verify:
• The current e-Verify program traces its roots back to the Immigration Reform and Control
Act (“IRCA”) of 1986 (P.L. 99-603), signed into law by President Ronald Reagan on November
6, 1986.
• Under that law, employers are prohibited from hiring unauthorized workers, and are subject
to civil and criminal sanctions if they do so. (8 USC 1324a(h)(2).)
• The two government agencies working hand-in-hand to enforce these provisions are the
United States Customs and Immigration Service (USCIS), and Immigration and Customs
Enforcement (ICE), both of which, since 2002, are part of the Department of Homeland
Security (DHS.)
• While collection of an I-9 form from each new hire is required throughout the U.S. (within 3
days of hire but NOT before the applicant has accepted their offer), participation in the e-
Verify program is still largely voluntary.
• Only federal contractors or subcontractors are required to use e-Verify to determine
employment eligibility of employees performing direct work on their contract and new hires.
• It applies to federal contracts containing the Federal Acquisition Regulation (F.A.R.) e-Verify
Clause.
• It exempts contracts of less than 120 days and valued at less than $100,000, and sub-contracts
valued at less than $3,000.

e-Verify Overview:
Overall:
• 24 states (in orange) have laws
on the books requiring the use
of e-Verify for at least SOME
employers.
• The other 26 states (in grey)
have no state-level laws
requiring the use of e-Verify. It
is entirely voluntary except, as
noted previously, for certain
federal contractors and
subcontractors.
Source: E-Verify States Map.
Can be accessed here:
https://www.lawlogix.com/e-verify-map/

e-Verify Specifics:
State Requirement: ALL (or
most) Employers
• There are 8 states which
currently require “all or most”
employers to use e-Verify for
all new hires
• Some of these states limit e-
Verify to employers with more
than a certain limit of active
employees (e.g., UT for
employers of 15 or more).

e-Verify Specifics:
State Requirement: Public
Employers and/or Contractors
currently require public
employers and/or state
contractors to use e-Verify for
all new hires
• Texas, as the state with the
longest Southern land border in
the USA (1,954 miles), requires
the use of e-Verify only by state
agencies, with no specified
penalty for non-compliance.

e-Verify Specifics:
State Requirement: Public
Employers Only
currently require public
employers (only) to use
e-Verify for all new hires
• In Virginia’s case, the penalty
for non-compliance is
debarment from state
contracts for a period of up
to one year.

e-Verify Specifics:
State Requirement: State
Contractors Only
currently require state
contractors (only) to use
e-Verify for all new hires
• In Colorado’s case, the
penalty for non-compliance
is the termination of the
public contract by the
contracting state agencies.

e-Verify Specifics:
State Requirement:
Employers Through Local or
Municipal Requirement Only
currently require county or
municipal contractors only to
use e-Verify, on a county by
county basis
• In the case of New York state
(pop. 19.54 million), only the
Village of Suffern (pop. 10,995)
requires new contractors with
the village to use e-Verify.

e-Verify Specifics:
State Requirement: Employer
Option: e-Verify or Collect
Other Documentation
• The state of Louisiana requires
private contractors doing
business with the state to use
e-Verify
• However, private non-
contractor employers have a
choice to either use e-Verify or
collect certain work
authorization credentials from
each employee, as specified.

e-Verify Specifics:
State Requirement:
Blocking Mandated Use of
e-Verify
• The state of California and
municipalities within it are
banned by law from
mandating e-Verify use as a
condition of obtaining a
government contract or
preserving a business license.

e-Verify: Enrolled Employers
Despite the Lack of a
Mandate, e-Verify
Continues to Increase in
Popularity Among
Employers
• The number of employers
participating in the e-Verify
program has been increasing
steadily for the past 10+ years.
• The total number of employers
has increased from 88,244 in
2008 to 745,633 in 2017 – a
more than nine-fold increase
over nine years.
Source: E-Verify website. Can be accessed here:
https://www.e-verify.gov/about-e-verify/history-and-milestones

e-Verify: Enrolled Memos of Understanding
Despite the Lack of a
Mandate, e-Verify
Continues to Increase in
Popularity Among
Employers
• Notice the LACK of
correspondence between state
laws (or the lack thereof) and
employer enrollment.
• Examples: California, with
66,055 enrolled MOUs (second
largest only to Georgia), has no
state law requiring e-Verify
use. Texas, with 47,879
enrolled MOUs, has no state
law requiring e-Verify use.
https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics

e-Verify: Enhancements and Future Budget
Despite the Lack of a Mandate,
e-Verify Continues to Increase
in Popularity Among
Employers
• DHS treats e-Verify very much
like a software system to which
users subscribe (but at a $0.00
fee.)
• Note the continuous software
improvements every month.
• Irony of the year? With the 35-
day partial government
shutdown earlier this year over
issues of illegal immigration,
the e-Verify system was one of
the first casualties – shut down
for most of that time.
https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-enhancements

Penalties for Hiring Undocumented Workers
• At the federal level, and since there is no nationwide mandate to use the e-Verify
system at this time, sanctions for hiring undocumented workers are based on failure
to verify employment eligibility using the I-9 form and related procedures.
• Penalties can include civil and criminal fines, and under certain circumstances, loss
of business license. For federal contractors, violation of FAR-based hiring
restrictions can result in permanent debarment from future federal contracts.
• For a first offense of hiring undocumented workers, fines can range from $250 to $2,000 per
illegal employee.
• For second offenses, fines can range from $2,000 to $5,000 per illegal employee.
• For third or greater offenses, the fines can range from $3,000 to $10,000 per illegal employee.
• Employers evincing a pattern or practice of knowingly employing illegal immigrants
can incur even higher fines, face up to six months in jail, or even, in the severest
cases, face charges under the federal RICO (Racketeering-Influenced and Corrupt
Organizations Act) statutes.
• And the severest penalties are reserved for those who are found to fit the definition
of “harboring” illegal immigrants, or employing 10 or more such individuals in a
single year, which can lead to up to 10 years of prison time.

Undocumented Workers - Case in Point: Zirkle Fruit
• The landmark 2006 case of Zirkle Fruit Company, a fruit grower in Selah,
Washington, involved a class-action brought by the company’s legally
documented workers, alleging that the employer hired illegal workers
specifically to artificially depress the wages of the legal employees (which, if
proved, would qualify as a RICO violation).
• The case resulted in a $1.3 million settlement paid by the employer to the
plaintiff class of legal (documented) workers.

I-9 Recordkeeping Audits
• According to Danielle Bennett of US Immigration and Customs Enforcement:
“ICE is coming down hard on I‐9 clerical errors to drive home the point that the
integrity of employment records are as important to the federal government as
the integrity of tax files or banking records.” Source: HIREtech
I-9 Audit Statistics 2017 2018
Organizations Audited 1,360 5,981
Criminal Arrests 139 779
Admin Worksite Arrests 172 1,525

Extent of the Problem; Extent of the Risk
• Estimates by the Department of Homeland Security (US DHS), as of January, 2015
(the latest official estimates available as of December, 2018) are that there are 12
million illegal aliens living within the United States. (To arrive at this count, the
government includes all residents currently in the statuses of TPS – Temporary
Protected Status, and DACA – “Dreamers” or Deferred Action for Childhood
Arrivals.)
• For the same time period, the number of annual “removals” (commonly thought
of as deportations) numbered just in excess of 340,000.
• Assuming that the age distribution of these illegal residents approximates that of
the legal population, these numbers equate to about 3.5% (or one in 30
members) of the workforce that might present themselves for employment being
ineligible to work in the US.
• Obviously, there are significant variations in this population geographically, from
border states to non-border, and among larger cities, suburbs, and rural areas.
Clearly, employers must take the process of verifying work eligibility seriously!

• Employers frequently ask, at this point, about the extent of their responsibilities
to verify that a new hire’s work credentials are genuine, as more and more
cases of fraudulent documentation and identity theft arise.
• Federal regulations require that employers make a good faith effort to ensure
that the documentation they collect in conjunction with the I-9 verification
process is genuine, which is, of course, a subjective standard.
• Employers concerned about their HR line managers possibly making errors in
identifying genuine documentation can take one or more of several steps to
mitigate these risks:
• Enrollment in, and regular use of the e-Verify platform, even though it may not be required
in the employer’s jurisdiction. The service is free. Many HRISs, Recruiting and/or
Onboarding products will integrate two-way messaging between their Applicant Tracking and
the e-Verify service.
• Retention of a third-party service to administer I-9 form intake, and/or e-Verify processing.
These third parties are often very experienced, with highly trained professionals, including
back-office immigration attorneys or paralegals on staff. There are many such services
available, and use of such an expert third party firm, and relying on the opinions they render,
would almost certainly be considered a “good faith effort” to comply.

• Employers concerned about their HR line managers possibly making errors in
identifying genuine documentation can take one or more of several steps to
mitigate these risks:
• Use of the Social Security Number Verification Service (“SSNVS”), sponsored by the Social
Security Administration. Employers have access to a choice of two systems:
• …interactive online verification of up to 10 SSNs at one time, or
• …overnight batch verification of up to 250,000 SSNs at a time.
• These services verify that an SSN is correct, on-file, and corresponds to the name entered.
Again, these services are free, and many HRISs and Payroll services offer these services as
part of their product offering.
• SSNVS can not only be used for identity verification, but also to avoid a last-minute rush to
make such verifications prior to issuing Forms W-2. Remember that incorrect social security
numbers reported on W-2 forms can result in fines of as much as $260 per occurrence, if not
promptly corrected.

Part III
Executive Order 13788:
“Buy American, Hire American”

Executive Order 13788 was signed by the President on April 18, 2017,
as the 24th Executive Order of his presidency.
• The order promulgates an increased preference for the manufacture of products in the United
States by American workers, and simultaneously reiterates the Administration’s
discouragement of using imports – whether of goods or workers.
• In that vein, it includes specific reference to the H1-B Visa program in §5(b) of the Order:
(b) In order to promote the proper functioning of the H-1B visa program, the
Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of
Homeland Security shall, as soon as practicable, suggest reforms to help ensure that
H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.
• The agencies and their Directors called to action by the above paragraph have excelled at this
exhortation, as we will see in the statistics that follow.
• Certain key industries, which rely heavily on guest worker talent, could anticipate negative
impact from this Order – high technology, for example, which relies on foreign workers from
key regions for their better “STEM” (science, technology, engineering and math) training.
EO13788: Buy American, Hire American

• However, the actual impact has been surprisingly strong in other industries, including
healthcare (which already was experiencing higher demand than supply of the best workers),
agriculture, and, depending on location, even hospitality and retail.
• The US Bureau of Labor Statistics publishes this tell-tale chart which tells the story:
EO13788: Unprecedented “Talent Inversion?”
April, 2018:
America’s “Talent
Inversion” Begins

• At the end of January, 2019, there were
6.5 million unemployed workers in the
US, while at that same time, there were
7.6 million unfilled jobs (up dramatically
from the 6.7 million unfilled jobs level
just nine months before).
• This upside-down ratio, wherein there
are more unfilled jobs than unemployed
workers to take them, is generally acknowledged as a national “skills gap” or
“skills mismatch.”
• And the average time-to-fill for some industries and job classifications is now
regularly exceeding 60 or even 70 days, a historical high.
EO13788: Unprecedented “Talent Inversion?”

Part IV
Immigrant Employment:
A Brief Review of Visa Rules

Review of Visa Programs in the US
Program Type Program Sub-Program Governing Rules Annual Grant
Lawful
Permanent
Resident
“Green Card” or
Employment-Based
Immigration
1st Preference (EB-1) Reserved for:
 Foreign nationals with
extraordinary ability in the
sciences, arts, education, business,
or athletics;
 Outstanding professors and
researchers; or
 Certain multinational managers
and executives.
Per country:
2,803
Total limit:
40,040
2nd Preference (EB-2) Reserved for:
Foreign nationals who are members of the
professions holding advanced degrees or
who have exceptional ability (including
requests for national interest waivers).
Per country:
2,803
Total limit:
40,040
3rd Preference (EB-3) Reserved for:
Skilled workers, professionals or other
workers.
Per country:
2,802
Total limit:
40,040
4th Preference (EB-4) Special immigrants
(e.g., religious workers and special
immigrant juveniles
Per country:
696
Total limit:
9,940
5th Preference (EB-5) Immigrant investors Per country:
696
Total limit:
9,940
TOTAL 140,000
Country- and
Priority-Specific
“Green Cards”

Lawful
Permanent
Resident
Green Card
“Lottery” Program
(DV-2021)
“Diversity
Immigrant Visa
Program”
Must be from a “low-
immigration” country and
qualify based on either
education or work experience
For 2018:
14,962,258 qualified entries
were received during the 34
day application period, and
115,968 randomly selected
individuals were permitted to
make full application for the
50,000 available slots.
50,000 total
per year
The “Visa Lottery”
System
Note: Targeted for
elimination by the
Trump Administration

Visitor Exchange Visitors J-1 visas Qualification within specific
occupation categories:
 Alien Physicians
 Au Pairs
 Camp Counselors
 Government Visitors
 Interns
 International Visitors
 Professor and Research
Scholars
 Short-Term Scholars
 Specialists
 Students,
College/University
 Students, Secondary
School
 Summer Work Travel
 Teachers
 Trainees
Maximum length of stay varies
by occupation, from 1 day
(visiting lecturers) to 7 years
(alien physicians)
Almost
300,000 are
issued per
year. The
number of
individuals in
“active J-1
status” at any
one time
fluctuates
between
approximately
160,000 and
220,000
depending on
the time of
year.
Exchange Visitors

Temporary
Worker
Non-Agricultural H-2B visas Qualification based on
insufficient US workers to meet
need, due either to one-time or
extraordinary need, or seasonal
demand for services. Workers
must come from a country on a
list established and maintained
by the Director of DHS.
Length of stay: 1 year,
renewable under certain
circumstances for up to 3 one-
year periods.
Family members of H-2B visa
holders are eligible to
accompany them to the US
under an H-4 visa, but may not
work while here.
66,000 per
year:
33, 000 for
employment
beginning
10/1-3/31 and
33,000 for
employment
beginning 4/1-
9/30 each year
Non-Agricultural
Temporary
Workers

Temporary
Worker
Skilled Workers H-1B visas Allows companies in the US to
temporarily employ foreign
workers in occupations that
require the application of a
body of highly specialized
knowledge and a bachelor’s
degree or higher in the specific
specialty, or its equivalent.
H-1B specialty occupations may
include fields such as science,
engineering and information
technology, and fields such as
teaching and accounting.
Some restrictions were placed
on the H1-B visa program by
Executive Order 13788, “Buy
American, Hire American.”
Maximum initial length of stay
is three years, renewable under
certain circumstances, for an
additional three years.
Regular Cap:
65,000
Advanced
Degree
Exemption:
20,000
Skilled
Workers

Part V
EO13788 Meets the H-1B Visa Program

The intent of Executive Order 13788 was clear...
• …it directed cabinet secretaries and department directors to implement rules
and regulations intended, in pertinent part, to place pressure on employers to
favor American citizens over foreign nationals in filling open positions.
• To the extent that a given pair of applicants (one citizen and one non-) might be
in open competition for the same job, and the citizen might be even marginally
less-qualified than the foreign national, it is a matter of political interpretation
whether the “Buy American Hire American” Executive Order is intended to
pressure an employer into hiring the American citizen.
• Less debatable are the steps those cabinet secretaries and department
directors took to implement the Order, after its April 18, 2017 signature date,
and the impacts that those steps had on the H1-B visa program overall, and the
processing statistics tell the tale...
When EO13788 Met H-1B Visas

According to forbes.com, quoting the National Foundation for
American Policy (NFAP)...
• “Soon after Donald Trump issued the ‘Buy American and Hire American’
(‘BAHA’) presidential executive order on April 18, 2017, USCIS started to
increase both the Requests for Evidence (RFEs) and denials for H-1B petitions
for high-skilled foreign-born professionals.”
• H1-B visa denials increased by 41%, from 15.9% to 22.4%, from the third to the fourth
quarter of FY2017, which was the first fiscal quarter completed after the promulgation of
BAHA.
• The number of H1-B petitions delayed due to Requests for Evidence (“RFEs”) for the
fourth quarter of 2017 (63,184) was about equal to the same number for ALL THREE of the
previous consecutive quarters (63,599) combined. It should be noted that failure to
comply with an adjudicator’s Request for Evidence results in automatic denial of the
petition.
[Remember that these federal government statistics are based on the federal fiscal year which runs October 1 through
September 30, so the first quarter runs from October 1 through December 31, the second quarter from January 1 through
March 31, the third quarter from April 1 through June 30, and the fourth quarter from July 1 through September 30.]

According to forbes.com, quoting the National Foundation for
American Policy (NFAP)...
• “Soon after Donald Trump issued the ‘Buy American and Hire American’
(‘BAHA’) presidential executive order on April 18, 2017, USCIS started to
increase both the Requests for Evidence (RFEs) and denials for H-1B petitions
for high-skilled foreign-born professionals.”
• As a percentage of completed cases, the Request for Evidence rate was about 69% in the
fourth quarter of FY2017, compared to 23% in the third quarter of the same year – a
tripling quarter over quarter.
• The escalation in denial rates continued into FY2018: in the first quarter of FY2018 the
denial rate was 30.5% for L-1B petitions (for employees with “specialized knowledge”) and
it was 29.2% in the 2nd quarter of FY 2018 – both representing an increase from an
average denial rate of 24% for L-1B petitions over the course of FY2016.
[Remember that these federal government statistics are based on the federal fiscal year which runs October 1 through
September 30, so the first quarter runs from October 1 through December 31, the second quarter from January 1 through
March 31, the third quarter from April 1 through June 30, and the fourth quarter from July 1 through September 30.]

Other actions the Administration is taking are seen as even more
draconian:
• The spouses of H1-B visa holders are granted H-4 visas to allow them to
accompany their spouse to the US for employment.
• Under the prior Presidential administration, in February, 2015, rules were
implemented liberalizing the grant of Employment Authorization Documents,
or EADs, to H-4 visa holders, to allow them to work while visiting the US with
their H-1B visa-granted spouses.
• Pursuant to EO13788 (Buy American Hire American), in mid-February, 2019, the
USCIS published through the Office of Management & Budget, a Notice of
Proposed Rulemaking, announcing their intention to eliminate the current rule
and discontinue the issuance of EADs to H-4 visa holders.
When EO13788 Met H-1B Visas: H-4 EADs

More information regarding upcoming revocation of H-4 visa holders’ EADs:
• It is unclear whether these work authorizations will be revoked en masse as soon as
the rule becomes effective, or on their next individual expiration dates, but current
H-4 visa EAD holders will eventually have to stop working, and their spousal H-1B
visa holders will then become single wage earners for their families.
• The specific motivation of this rule change is not yet clear, but employers of H-4 visa
holders working under EADs should remain vigilant on this topic, to avoid
inadvertently employing certain individuals illegally.
• Based on the type of NPRM this involves, there are nine steps total until the
revocation can take effect, and as of February 20, 2019, OMB entered Step Four of
the process. Based on expected timings of remaining steps and their pace of
execution, expect the EAD revocations to take effect anywhere from August 10-19,
2019 (fastest track) to July 15-20, 2020 (slowest track).
When EO13788 Met H-1B Visas: H-4 EADs
More information at: https://redbus2us.com/h4-ead-removal-estimated-timeline-predictions-revoke-status/

Part VI
Specialized Challenges
in Visa Holder Administration

Do various US employment laws apply with equal force to visa-based
workers?
• The answer is almost ALWAYS, Yes.
• The following laws all cover visa-based workers with equal force as US citizen
employees (provided, of course that the employer qualifies for coverage under
the law, based on headcount, level of commerce, etc.):
• Fair Labor Standards Act (FLSA – federal and state overtime and minimum wage laws)
• ACA (health insurance standards and offers of coverage for “Applicable Large Employers”)
• EEO-1 Reporting
• OSHA Incident Recording and Reporting
• The Warn Act (for plant closings)
• and, of particular concern for employers: FMLA (the Family and Medical Leave Act, both at
the federal, and state level for those states with more protections than federal)
• Bottom line, none of the laws mentioned above have “carve-outs” to allow
their provisions to be disregarded for visa-based employees.
Visa Workers: US Employment Law

The FMLA presents specialized questions to employers, since the basis
for a visa worker to maintain legal status in the US is that he/she must
remain employed:
• As long as a visa-based employee is being paid by their employer, they are
presumptively employed.
• So any paid time-off continues their employment as if they were at work (even where such
PTO may run concurrently with FMLA-based leave).
• Additional unpaid leave will be protected for visa holders, if it is specifically
qualified under federal or state law. So, for example, unpaid FMLA, under
applicable federal or state law, will protect an employee’s continuation of
employment in the eyes of USCIS.
• It is important that the employer properly classify the employee and the type of leave for
which they are approved, and provide legally sufficient documentation to the employee
in case it is requested by federal authorities.
Visa Workers: FMLA

The FMLA presents specialized questions to employers, since the basis for a
visa worker to maintain legal status in the US is that he/she must remain
employed:
• Unpaid leaves extending beyond FMLA entitlement limits may still be “in the clear” if
they are:
• due to necessity, e.g., due to medical reasons,
• approved by the employer, and
• the H-1B holder maintains all needed documentation, to produce it when requested by USCIS.
An example might be a pregnancy complication that results in an extended medical leave of
absence. In these circumstances it is highly recommended that the visa holder and the
employer work together to develop appropriate documentation, contemporaneous to the
request (and in so doing, avoid an “eleventh hour substantiation” trap.)
• Problems can arise, however, when extended leaves are for non-medical, non-
emergency or other reasons, even where the employer might have a well-formulated
and publicized rule around the entitlement for all employees.
• Unpaid sabbatical leaves or community-service related leaves are good examples.
• In these circumstances, H-1B visa holders run a more substantial chance of running afoul of the
law, even if they have their employer’s permission to take the leave, since the overriding
purpose of an H-1B visa is to maintain employment in the US. An experienced immigration
attorney or consulting advisor could be extremely important in this circumstance.
Visa Workers: FMLA

The FMLA presents specialized questions to employers, since the basis
for a visa worker to maintain legal status in the US is that he/she must
remain employed:
• The one exception to the problematic nature of non-medical unpaid leaves
occurs when that leave time is spent outside the United States.
• When the leave is taken outside the borders of the US, not only will the visa
holder not be present to be challenged by immigration officials, but time spent
outside the US may be able to be “recaptured” and applied to the overall six-
year limit (with one renewal) available to H-1B visa holders.
• As always, impeccable record keeping, including but not limited to travel
itineraries, plane ticket receipts, and passport entry/exit stamps, and approval
letters from the sponsoring employer, are all an absolute must.
Visa Workers: FMLA

It is also important for employers to avoid “backlash” situations that can
arise with visa-based visiting employees:
• Remember that most national employment laws, including the Immigration
Reform and Control Act of 1986 (“IRCA”), prohibit:
• discrimination in employment, and
• retaliation against employees who attempt to assert their protected rights under these laws
(“whistleblowers”).
• Case in Point: Acosta v. Tara Construction Inc. and Pedro Pirez (C.V. 19-cv-10369)
Visa Workers: Non-Discrimination, Non-Retaliation
Sometimes, it’s not the undocumented
worker who is brought out of the
workplace in “bracelets.”

It is also important for employers to avoid “backlash” situations that can arise
with visa-based visiting employees:
• Case in Point: Acosta v. Tara Construction Inc. and Pedro Pirez (C.V. 19-cv-10369)
• On February 27, 2019, the US DOL’s Occupational Safety and Health Administration
announced the filing of a lawsuit against Massachusetts-based Tara Construction and its
CEO, Pedro Pirez, alleging that they retaliated against an injured employee by facilitating
his arrest.
• The complaint alleges that a Tara employee sustained a serious injury when he fell from a ladder
almost two years prior.
• The complaint then alleges that CEO Pirez arranged to have US Immigrations and Customs
Enforcement (ICE) waiting for the employee when he was called to a meeting to discuss the injury,
at which point the employee was arrested.
• A subsequent investigation by OSHA’s office of the “Whistleblower Protection Program”
concluded that the defendants’ actions constituted retaliation against the employee for
protected activity under the OSH Act and [was intended to] dissuade a reasonable worker
from reporting an injury.
• “Employees must be able to report injuries and unsafe workplaces without fear that
their employers will retaliate,” said OSHA Regional Administrator Galen Blanton. “OSHA
enforces the law to protect all employees and level the playing field for law-abiding
employers.”
Visa Workers: Non-Discrimination, Non-Retaliation

“The Upshot”
Immigration and Employment:
Steps Every Employer Should Take Now

1. Perform a “health check” on your employment eligibility and verification
processes.
• How confident are you that every employee currently on your payroll is
legally entitled to work in the United States?
• What extra steps do you take to ensure the legitimacy of work entitlement
documentation?
• Do you use e-Verify?
• Should you consider doing so even if your state is silent on the issue (for
now)?
• Do you take advantage of the Social Security Administration’s SSNVS to verify
the accuracy of all social security numbers?
• Do you have an immigration attorney on staff or available by phone (this is
highly desirable for employers who do not sponsor visa-based workers; it is
absolutely essential for those who do)?
Four Key Steps Every Employer Should be Taking to Ensure Immigration Law Compliance
Steps Every Employer Should Take NOW!

2. Avoid the workplace dangers of discrimination on the basis of citizenship
status, and possible retaliation for whistle-blowers.
• While it may be safe to assume that most HR professionals understand anti-
whistleblower and anti-discrimination statutes, downline directors and
managers, who may have influence on which employee disputes are pursued
to resolution by an organization, may not have this same understanding, and
further, might be motivated by a discriminatory animus.
• Clear policies, effective workflow processes for routing and approval of
employment decisions, and a well-designed and implemented Learning
Management system can all be deployed to avoid bad decision-making.
• And as the pending Tara Construction case teaches us, no one, at any level of
an organization, should be exempt from routine oversight.

3. Ensure your data will stand up to any routine inquiry or formal audit.
• An employer’s HCM suite is the source for all the data needed to support and
defend immigration compliance matters.
• This includes confidential case notes regarding employee backgrounds, and
resulting visa types, grants, extensions and/or declinations.
• For those already working under an H-1B visa, accurate detailed employment
history, complete with records of paid and unpaid leaves, is essential.
• I-9 recordkeeping must be pristine! If you have concerns about your
organization’s ability to do this (e.g., due to decentralized control of key
administrative processes), consider hiring a third party service provider for this
function.

4. In accordance with EO13788, determine the steps needed for workforce
development in a tighter immigration worker economy.
• With the current Administration’s “Buy American, Hire American” Executive
Order in place, pressure will only increase on American businesses to promote
from within and seek qualified applicants for open positions within these shores.
• The “talent inversion” which emerged in early 2018 shows no signs of correcting
itself. Public talent pipelines (e.g., from colleges, universities and trade schools)
take years and decades to build, not months or weeks. A historic low in public
funding of job-related education is not helping this matter either.
• Employers facing talent deficits can no longer trust in even the shrinking
opportunities they previously had in sponsoring H-1B visa petitioners to
successful hire, particularly in any reasonable timeframe.
• Employers should take a renewed look at your internal, self-energized ability to
develop key talent, as the ability to bring that talent in from outside the US
becomes increasingly difficult.

How Ascentis Can Help
The Ascentis HCM Suite Has Many Capabilities to Address These Challenges
• Human Resource Information System (Basic HR Recordkeeping)
• Citizenship and Authorization to Work information captured for every employee
• Unlimited document attachment capabilities for I-9s, supporting documentation, and other forms
• Unlimited user tabs and fields to capture additional details as needed
• Recruiting: E-Verify and SSNVS Integrations Built-In!
• Our Recruiting module includes bi-directional feeds to e-Verify and I-9 service providers, to electronically
make needed requests at the appropriate point in the applicant flow, and to record the results automatically.
• Our Payroll module includes an optional SSNVS quarterly feed. “Set it and forget it”, and be automatically
notified only when an employee-submitted SSN pops up as non-genuine.
• Learning Management System
• Offer employees and managers standard learning content to ensure they understand their responsibilities to
avoid discrimination, and intentional or inadvertent retaliation, against non-citizen or visa-authorized workers.
• Schedule training and ensure it is completed, with reminders, dashboards, and detailed reporting
• SCORM compliance allows for embedded quizzes, recordkeeping on performance and comprehension for
employees consuming the training

Learn more
Request an assessment of your organization’s Immigration Worker compliance profile today!

Contact Us
webinars@ascentis.com
info@ascentis.com
www.ascentis.com
800.229.2713

HR Webinar: Immigration Changes and the Impact to Employers: 2018-2019

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