New employment-based immigration laws for 2018
With the New Year coming up, it’s time for another update on new or updated laws that employers should be aware of. This article will be an update on employment-based immigration laws in particular for 2018.
Employers Must Use the New Form I-9
On September 18, 2017, the United State Citizenship and Immigration Services (USCIS) required all employers to begin using a new version of the Form I-9 (dated 7/17/17).
What is the I-9?
The Form I-9, also known as the Employment Eligibility Verification Form, asks newly hired employees to provide documents to prove their identity and eligibility to legally work in the U.S.
Click here to read more.
*Revised Form I-9 (dated 7/7/17). Source: USCIS I-9 webpage
The Repeal of DACA
As many have heard, the Trump administration has decided to gradually wind down the DACA program, which was established in 2012 by the Obama administration. DACA’s repeal was announced on September 5, 2017 bv U.S. Attorney General Jeff Sessions. Click here to view the U.S. Department of Homeland Security’s official memorandum regarding the DACA rescission.
What is DACA?
DACA, which stands for Deferred Action for Childhood Arrivals, was a program established by the Obama administration in June 2012 as a way “to remove the threat of deportation for and to provide temporary employment authorization to individuals who were brought to the United States as children and who either entered unlawfully or overstayed their periods of admission,” according to a National Law Review article.
The DACA program was created in response to the increasing population of illegal immigrant children and students brought to the U.S. at a young age. Through this program, illegal or undocumented individuals could apply to have a 2-year deferred action period.
This deferral prevented the government from deporting them (given good and lawful behavior) and allowed these individuals to apply for a work permit in the U.S. Despite being controversial with lawmakers, USCIS (the United States Citizenship and Immigration Services) began accepting applications for the DACA program in August 2012.
To date, more than 800,000 individuals (or “Dreamers”) have been enrolled in this program.
Can you still apply for DACA?
No. New applications for the DACA program were no longer accepted starting June 5, 2017. According to NBC News, “the Trump administration… will allow any DACA recipients with a permit set to expire before March 5, 2018, the opportunity to apply for a two-year renewal” if their applications were submitted before October 5, 2017.
This means that current DACA enrollees will not be allowed to extend their employment eligibility after their current permits expire. By March 5, 2020, all DACA beneficiaries will have passed their eligibility period and will no longer be able to legally work in the U.S.
What does the DACA repeal mean for employers?
Individuals who are authorized for employment in the U.S. through the DACA program remain eligible to work until the expiration of their EAD (employment authorization documents). Employers who have correctly filed the I-9 at the time of hire can refer to Section 1 of the I-9, which will indicate the expiration date of the employee’s temporary employment eligibility.
Employers must continue to accept an employee’s valid work authorization documents and “should not take any unlawful adverse action, such as termination of employment” against employees whose work authorization may be expiring soon.
According to the Department of Homeland Security, if an individual’s DACA benefits expire, his or her “removal will no longer be deferred and they will no longer be eligible for lawful employment.” However, it is unlawful for an employer to take advance action based on the knowledge that an employee’s DACA eligibility is ending in the near future.
Employers who are unsure how to handle an employee’s pending DACA expiration should consult with an employment law or immigration law attorney.
USCIS to require in-person interviews for employment-based I-485 applicants
On October 1, 2017, USCIS gradually began requiring in-person interviews for employment-based I-485 applicants. The Form I-485 is also known as the “Application to Register Permanent Residence or Adjust Status.” The I-485 allows for a legal immigrant in the U.S. to apply for lawful permanent residence (the "green card").
This new USCIS policy complies with the Trump administration’s Executive Order 13780 issued on March 6, 2017: “Protecting the Nation from Foreign Terrorist Entry in the U.S.”
According to a National Law Review article, this policy is part of USCIS’ strategy “to further improve the detection and prevention of fraud and to further enhance the integrity of the immigration system.”
Who is required to do an in-person interview?
USCIS’ new in-person interview requirement is currently intended for two scenarios:
- I-485 applicants seeking lawful permanent residence status (or a green card) through an employment offer; or
- Form I-730 petitions filed by refugees or asylees for a spouse or child(ren) to join them in the U.S. The Form I-730 is known as the Refugee/Asylee Relative Petition.
Although no time frame or schedule has been announced, USCIS will begin to gradually expand this in-person interview requirement to other types of immigration applications and petitions. Currently, it’s not clear how many employment-based I-485 applicants will be required to do an in-person interview.
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If you're an employer with questions about what ot expect in 2018, don't hesitate to contact an employment law attorney or immigration attorney. Make sure that your workplace and hiring practices are compliant with the latest changes to employment and immigration laws in the New Year.