And the Costs Keep Rising: Immigration at a Glance

By Andrew Adams - Skoler, Abbott & Presser, P.C.

September 24, 2019

There have been a few developments in the employment-related immigration arena that employers should be aware of.  Here is what you need to know to bring you up to speed.

Ok to Use Expired Form I-9

The U.S. Citizenship and Immigration Services (USCIS) has announced that employers may continue to use the Form I-9 that expired August 31, 2019.  You should check the top right of the I-9 you are currently using.  If it indicates that it expires on 8/31/2019 in the top right corner and reads “Form I-9 07/17/17” in the bottom right hand corner, you’re using the right one.  We will update you when the new form becomes available.

As an aside, while the expiration of the form has caused concern for some of our clients, we have learned that many employers were not even using the most recent Form I-9!  Employers need to stay vigilant in their documentation especially when it comes to Forms I-9 as it’s a technical violation to use the wrong version.  The number of Form I-9 audits completed per year has increased exponentially from approximately 1,700 in 2017 to over 6,500 in 2018 leading to over $97.6 million in judicial forfeitures, fines, and restitution and $7.8 million in civil fines.  While using the wrong form isn’t likely to bankrupt your organization, it can be costly.

If you’re not using the form that expired in August, begin using it. If you have been using it, keep doing so for the time being.

H-1B and the $10 Fee

It’s already expensive to file for an H-1B Visa for an employee.  The fee is $1,500 and there are additional costs associated with certain H-1B and H-1B1 petitioners.   Now the Department of Homeland Security (DHS) has proposed an additional fee of $10 for using its mandatory electronic registration system.  DHS calls this fee a “new opportunity cost” which is estimated to run employers an extra $6.2 to $10.3 million annually.

It’s Now Easy to Find Out Who’s Hiring H-1B Workers

Acting in the interest of transparency USCIS recently created an online database comprised of employer data for those who have submitted petitions to employ H-1B nonimmigrant workers.  The database is now up and running and allows users to search employers by company name, location, or NAICS code for applications filed from 2009-2019.  The data base can be found here.

New Worries for Social Media

This year the State Department went from asking visa applicants for their social media information to demanding it.  Applicants must disclose any social media presence in the last five years; lying carries the threat of a permanent ban from entry.  While it may seem like the government doesn’t have time to sort through the Facebook  and Instagram accounts of over 15 million visa applicants, some are already being denied entry because of them.  Just last month incoming Harvard student Ismail Ajjawi was allegedly denied entry solely because of the Facebook posts of “friends” in his social network.  While it may seem like one more minor inconvenience, these social media checks could result in costly delays and legal fees for employers whose H-1B workers are detained or denied access to the U.S.

New Public Charge Rule

The new public charge rule goes into effect on October 15th and gives USCIS the ability to deny entry to individuals who are deemed likely to become a “public charge.”  A public charge is anyone who is likely to become dependent on the government for subsistence.  While the rule has been around for a long time—1882 to be exact—it has only been applied to those receiving cash benefits.  The new interpretation takes into account a long list of factors such as age, health and receipt of non-cash benefits which will likely lead to a rise in visa denials.

Stay Tuned

The immigration landscape is constantly changing and the smaller updates are often the hardest to keep up with.  If you have any questions about these changes or how they could affect your business, please contact any one of the attorneys at Skoler, Abbott & Presser, P.C.