1 Employment Law Forum -- Immigration Panel Moderator Jeffrey SEmployment Law Forum -- Immigration Panel Moderator Jeffrey S. Horton Thomas, Partner, Head of the Hospitality Group, Thomas Employment Law Advocates, APC Panelists Michael Boshnaick, Partner, Fragomen Deanne M. Bringle, Senior Manager, Relocation, Immigration & Compliance, Warner Brothers Entertainment Group of Companies Angelo A. Paparelli, Partner, Seyfarth Shaw LLP

2 Buy American and Hire American Executive OrderDirects DOL, DHS, DOJ and DOS to propose changes to H-1B and other employment-based immigration regulations and policy Offers no specifics, but generally asks for agency recommendations on: H-1B cap allocation to prioritize advanced-degree holders and high-wage earners, similar to proposals in Grassley-Durbin and Lofgren legislation Wage increases - though some reforms could only occur through legislation, officials have suggested that the Administration believes it can accomplish some wage reforms administratively, e.g., recent guidance on computer programmers and Level 1 wages

3 Buy American and Hire American Executive OrderTougher enforcement Consistent with the enforcement-related announcements issued by USCIS, DOJ, and DOL Order encourages all immigration agencies to more vigorously enforce H-1B program violations, particularly “fraud” and “abuse”, which the Administration defines separately In the H-1B context, “abuse” is bringing workers into the US to undercut the American worker, and not because business requires their skills or talents

4 Buy American and Hire American Executive Order (cont’d.)Other possible changes: Increase in H-1B filing fees Across-the-board administrative and legislative reforms for employment-based immigration programs Impact on other visa programs Encourages broad crackdown on fraud and abuse throughout the immigration system Trade-agreement categories - the fact that the EO is paired with trade provisions suggests that changes to these trade agreement immigration provisions programs may be under consideration

5 Buy American and Hire American Executive Order (cont’d.)Though some in the Administration believe H-1B prioritization can be accomplished by regulation, senior Democratic and Republican House staff believe regulatory options are very limited because of INA’s “first-come, first-served” language. If prioritization regulation is issued, a court challenge is likely Likely to be debate on high-skill immigration in this Congress, but majority wants to address enforcement first. Health care and tax reform will take priority over immigration. There will be also be an appropriations battle this fall. H-1B provisions could be attached to a spending bill

6 H-1B Specialty OccupationApril 2017 USCIS policy memorandum takes the position that computer programmer positions are not presumed to be eligible for the H-1B program, rescinding a legacy Nebraska Service Center memorandum Level 1 wages “will likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation” But entry-level positions are not inconsistent with a specialty occupation claim – Legislative history of the H-1B provisions of Immigration Act of 1990 recognizes that “certain entry-level workers with highly specialized knowledge are needed in the United States …” See H.R. Conf. Rpt at 67; 1990 U.S.C.C.A.N. 6710, 6747) (Oct. 26, 1990) (emphasis added) Occupations under scrutiny IT occupations generally, including computer programmers, software developers, computer systems analysts Research analysts Accountants Product managers

7 H-4 EAD Litigation Save Jobs USA v. DHS appeal remains pending in federal court Trump Administration has asked the court to hold proceedings in abeyance for six months while it considers rulemaking; the court has not yet ruled on the government’s motion Could result in a restriction or elimination of the H-4 EAD regulation and indications are that the Administration is planning to rescind the H-4 EAD regulation Timing is not yet known

8 Offered Wage and FLSA ComplianceUSCIS adopted the Administrative Appeals Office’s decision in Matter of I- Corp., Adopted Decision (AAO Apr. 12, 2017), a case that involved an L-1B worker who was to be paid on the foreign payroll Holding: Petitions based on an illegal or otherwise invalid employment contract will be denied. Specifically, petitioners must establish that the beneficiary’s offered wage is not less than the minimum wage under state or federal law in order to be considered. Decision validates the applicability of the FLSA on foreign workers in the United States on a L-1 visa Employers should develop processes to ensure FLSA compliance for foreign transferees remaining on home-country payroll

9 NAFTA Renegotiation Press reports indicate that the Administration plans to notify Congress of its intention to initiate renegotiation of NAFTA Federal law requires the president to give Congress 90 days’ notice of his intention to revise a trade agreement Must announce Administration’s goals for renegotiation Must consult with key congressional committees Negotiations expected to begin by late 2017 NAFTA requires six months’ notice for a party to withdraw Administration’s intentions with respect to TNs, NAFTA L-1 and B provisions not yet known

10 60-day Grace Period After cessation of employment, eligible nonimmigrants (E, H-1B, H- 1B1, L-1, O-1 and TN) have a grace period of 60 days or through authorized validity period, whichever is shorter No employment or self-employment during the 60-day grace period unless otherwise authorized under 8 § CFR 274a.12

11 EAD (Employment Authorization Document) UpdatesProcessing delays – New rule effective January 17, 2017 eliminates 90 day processing time requirement for EAD applications and provides no mandatory processing time However, renewal application may be filed 180 days before expiration (was 120 days under prior rule) 180-day automatic extension of work authorization if individual renewing in the same EAD category or for TPS and application is timely filed Includes: Adjustment applicants (c)(9); Asylees (a)(5); Refugees (a)(3); Grantees of withholding of deportation or removal (a)(10); those who properly filed application for asylum or withholding of deportation/removal (c)(8); TPS grantees, regardless of employment authorization category of current EAD (a)(12), (c)(19); TPS applicants deemed prima facie eligible for TPS (c)(19); Approved VAWA self- petitioners and their qualified children (c)(31)

12 EAD (Employment Authorization Document) Updates(cont’d.)H-4, L-2, and E spouses are not be eligible for automatic EAD extension upon timely renewal filing For I-9 purposes, the employer may accept: expired EAD and I-797 receipt notice showing timely filed renewal EAD application when verifying work authorization for employees with an automatic EAD extension

13 New M-274 and I-9 Form USCIS has released an updated M-274, Handbook for Employers, dated 01/22/17, and a table of changes Key changes Reflects November 14, 2016 revisions to Form I-9 Contains new instructions for employment verification under the new AC 21 regulation, including the automatic EAD extension Increased I-9 penalties Revised edition of Form I-9 expected on July 17 Form will become mandatory on September 18 November 14, 2016 edition acceptable until then Effective July 17, DOS Form FS-240, Consular Report of Birth Abroad, is an acceptable List C document

14 Extreme Vetting at U.S. ConsulatesVisa applicant may be subject to increased questioning if consular officer determines that greater scrutiny is required to verify the applicant’s identity or to vet for terrorism or other national security- related visa ineligibilities Supplemental questions include information about: Fifteen years of home address, employment, and travel history, including information on how the travel was funded All passport numbers Names and birth dates of siblings, children, spouses and partners Social media platforms and identifiers used May also be requested to provide details of international or domestic travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization May also be asked to explain the details of their travel, and when possible, provide supporting documentation Failure to provide requested information may not necessarily result in visa denial, if the consular officer is able to conclude that the applicant has provided adequate information to determine the eligibility to receive the visa

15 Visa Adjudication Trends at U.S. ConsulatesIncrease in “Administrative Processing” Uptick in substantive denials at the U.S. Consulate in London (as of July 2017) More frequent verification s from the DOS in end-client placement scenarios Revocation of visas for individuals arrested for DUI in the U.S.

16 DOL Enforcement On June 6, 2017, Labor Secretary Alexander Acosta announced DOL is increasing its focus on pursuing employers who commit visa fraud and abuse DOL's planned enforcement initiatives include: Increased audits and investigations of employers to ensure they are complying with H-1B, H-1B1, E-3, H- 2A and H-2B program rules Changes to the LCA to give DOL greater capacity to identify employer violations and potential fraud Greater transparency in DOL foreign labor programs Could include more public disclosure of information about employers who use foreign labor programs Increased coordination across DOL investigatory and enforcement units Includes greater involvement of the DOL Inspector General, which has the authority to pursue criminal actions against program violators Earlier this year, DOL also suggested it would seek legislative changes to broaden its authority to initiate administrative investigations, which is largely complaint-driven under current law

17 Department of Homeland Security Interior Enforcement PolicyFebruary 20, 2017 – DHS issues memorandum entitled “Enforcement of the Immigration Laws to Serve the National Interest.” Memorandum contains significant modifications of Obama era enforcement and deportation policies Obama administration Priority Enforcement Program terminated. Section A: New removal priorities include: anyone convicted of a criminal offense anyone charged with a criminal offense anyone committing acts which constitute a chargeable criminal offense

18 Department of Homeland Security Interior Enforcement Policy (cont’d.)“the Department no longer will exempt classes or categories of removable aliens from potential enforcement.” Immigration and Customs Enforcement (ICE) directed to hire 10,000 additional officers and agents Section B: Restoration of the Secure Communities and INA Sec. 287(g) programs Fines and penalties – Section F of the policy directs issuance of guidance to ensure assessment and collection of all fines and penalties

19 ICE & E-Verify EnforcementImmigration and Customs Enforcement 1200 worksite inspections last year, focused on critical infrastructure, organizations with national security implications No current plans to increase number of inspections this year or change inspection strategy Homeland Security Investigations division has begun to focus more investigative resources on immigration document and benefit fraud E-Verify Trump budget asks for funding for nationwide mandatory E-Verify. Currently, E-Verify has 724,000 enrollees, 2.8 million worksites and handles 23 million queries per year. An E-Verify mandate would double the E-Verify workload if the mandate is limited to new hires only

20 Local Law Enforcement Participation in Immigration Enforcement – Secure Communities and INA 287(g)Secure Communities Program Initiated in 2008 Provides real-time access to arrest information to Immigration and Customs Enforcement replaced in 2014 by the now suspended Priority Enforcement Program Now back in effect INA Section 287(g) Provides for deputization of state and local law enforcement officers to conduct immigration enforcement 287(g) officers receive all authorities of ICE agents to conduct immigration investigations and effectuate arrests 32 law enforcement agencies in 16 states participate

21 ICE Sensitive Locations PolicyWell-established ICE policies usually (but not always) prohibit enforcement at “sensitive locations” including but not limited to: hospitals, schools and churches. See, https://www.ice.gov/doclib/ero- outreach/pdf/ policy.pdf Explicit exceptions: national security or terrorism matter imminent risk of harm dangerous felon, terrorist suspect, or other imminent danger risk of destruction of evidence ICE has announced that that policy remains in effect. https://www.ice.gov/ero/enforcement/sensitive-loc

22 Authorities of Immigration OfficersImmigration officers’ activities in the interior (not at the border) are governed by the 4th amendment. 100-Mile border exception 4th amendment prohibits entry into private buildings absent: consent of the owner or their representative ordinarily organizations implicitly consent to entry into public areas of their buildings exigent circumstances, including imminent danger or “hot pursuit” a court-ordered search or arrest warrant In some very limited circumstances, officers do have the right to enter even non-public areas of a non-residential building without consent, including exigent circumstances or pursuant to a warrant.

23 Business’ Authorities / ResponsibilitiesControl of entry: who when how Businesses can and should establish investigation-preparedness protocols on how employees should handle visits by law enforcement officers, including immigration officers Responsibilities include: safety of employees and visitors compliance with HIPAA and other laws that govern the privacy and confidentiality of patient and employee information

24 Policies for Law EnforcementConsiderations Safety and orderliness of the operating environment For health care and similar facilities: Patient privacy Patient willingness to seek care Supporting general public safety and compliance with law Maintaining positive/constructive relationship with local law enforcement

25 Key Elements: Policies for Law EnforcementDecisions on nature of cooperation with law enforcement Physical access to premises Level access to employees Company security cooperation with law enforcement officers Designation of key personnel Greeter such as security personnel or desk personnel on-site managers legal counsel If arrests allowed, procedure should be in place to avoid disruption of care environment Policies can be different depending on which law enforcement agency. See Seyfarth Shaw Quick Guidance: What to Do In The Event of a Visit by DHS-ICE Agents: LE

26 Future of Worksite Enforcement / Site VisitsOther than indications of hiring more agents, so far no indications of policy to conduct worksite raids Site visits – USCIS Memo – “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse Announces targeted enforcement prioritizing H-1B dependent employers Employers with H-1B visa holders work off-site Employers for whom sufficient information can not be obtained from publicly and commercially available sources Targeted site visits parallel DOJ announcements about enhanced enforcement

27 Site Visits (cont’d.) USCIS identifies indicators of Fraud and AbuseThe H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA). There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers. The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description. The H-1B worker has less experience than U.S. workers in similar positions in the same company. The H-1B worker is not working in the intended location as certified on the LCA. Similar site visits expansions have been announced for L-1 and EB-5 visa categories

28 Sanctuary Cities and Loss of Federal Funding – Congressional ProposalsExecutive Order: Enhancing Public Safety in the Interior of the United States, Section 9: Defines sanctuary jurisdictions as those violating 8 USC 1373. DHS, Declined Detainer Outcome Report: Identifies jurisdictions that have failed to honor detainers Department of Justice – Attorney General Sessions, April 21, letters to 9 jurisdictions: Threatens removal of federal law enforcement funds unless in compliance with 8 USC 1373.

29 Workplace EnforcementDevelop and Enforce an Immigration Compliance Policy Hire only authorized workers, Honor antidiscrimination rules, Discipline those who fail to comply, and Consider other best practices.

30 Workplace EnforcementPlace Controls on Employment-Based Immigration Sponsorship Written justification to petition for work-visa or green-card benefits for each foreign worker. Centralize due-diligence and signature authority confirming facts stated in all immigration submissions. Require systematic record-keeping and compliance on posting and good-faith recruiting procedures.

31 Workplace EnforcementAdd Immigration Protections to Vendor Contracts and Manage Vendor Conduct. Avoid risk of deemed co-employment and of taint from the vendors’ immigration violations. Make sure immigration letters for vendor employees are accurate. Require vendors by contract to adopt enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.

32 Trump Effect: Overall Impact on Strategic Planning and GrowthLack of predictability and uncertainty tied to an unpredictable federal administration and a governmentally-inexperienced politician/cabinet should provide us all with a “wild ride” The overall policy agenda appears to be generally pro-business but with some “conflicting signals” and policy gaps unaddressed or unclear Be wary and “on-alert” for Trump targeting (GM, Boeing, Lockheed, etc.) Republican “sweep” will drive some legislative progress and alignment (with stubborn minority faction): healthcare and tax reform on the “short list” Keep a close watch on the reaction of the states at a legislative level in

33 Mergers & Acquisitions – Immigration considerationsInvolve immigration counsel early on during due diligence period Assume or do new I-9s? Assume LCAs or amend H-1Bs? Amend nonimmigrant visa petitions? Amend corporate Blanket L petition Decide on immigration strategies to preserve “pipeline” immigration benefits for transferring employees – employment authorization and preservation of green-card eligibility Decide whether contractual provisions on immigration successorship in interest are feasible in asset acquisition transaction.

34 Entry Ban Update Who is affected?Nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen and refugees from all countries unless exempt or granted a waiver Exempt per Executive Order: U.S. Lawful Permanent Residents Dual nationals entering on a passport from a non-restricted country (not including Canadian permanent residents) Multiple-entry US visa holders who are otherwise admissible AOS applicants with valid Advance Parole Those already granted asylum in the US Admitted refugees or those whose travel has been formally scheduled by the U.S. Department of State

35 Entry Ban Update (cont’d.)Exempt per SCOTUS (those with a credible claim of a bona fide relationship to a close family member in the U.S. or a U.S. entity): Those entering to visit or live with close family Those entering to study at a U.S. school Those entering having accepted an employment offer from a U.S. entity BUT self-petitioners may not be exempt unless they can show a relationship with a U.S. entity Unclear if an invitation from US for purposes of business travel will qualify

36 Entry Ban Update (cont’d.)State of Hawaii v. Trump: On July 13, the federal District Court in the State of Hawaii enjoined the government from applying the ban to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States Ban may also not be applied to refugees who have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee Discretionary waivers available for the non-exempt: must show denial of entry would cause hardship, entry is in national interest and would not pose risk to national security Prospective expansion of the ban According to news reports, on July 12, DOS issued cable to consulates calling for worldwide review of visa security measures It is unclear whether the strict vetting procedures in cable will eventually replace the travel ban and extend beyond six restricted countries

37 Visa Waiver Program (ESTA) and the Entry BanThough not directly covered by the entry ban, Visa Waiver Program (VWP) travelers who have traveled to a country of concern since March 2011 may be restricted from using the Program Dual nationals of the U.S. or another country and Iran, Iraq, Sudan or Syria citizenship are prohibited from using the VWP Potentially affected VWP travelers should check the status of their registration in the Electronic System for Travel Authorization (ESTA) to ensure that it remains valid

38 Visa Waiver Program (ESTA) and the Entry Ban(cont’d.)If travel to a country of concern took place after their most recent ESTA registration, foreign nationals should reapply for ESTA for authorization to use the VWP in the future A waiver or exemption from the VWP travel ban may be available for certain types of travel If ESTA registration is cancelled or denied, a B-1/B-2 visa is required for business travel or tourism Make prearrangement with counsel for potential problems with CBP at Port of Entry or Pre-flight Inspection Post

39 Search and Seizure at the BorderAuthority of Customs and Border Protection to inspect and download data from electronic devices in the possession of U.S. citizens and foreign nationals Rights vary based on status: U.S. citizens U.S. lawful permanent residents Nonimmigrant visa holder, and VWP entrants Refugees Proactive measures employers and travelers should take.

40 DACA (Deferred Action for Childhood Arrivals)The future of DACA work permits (EADs) Handling requests from DACA employees to support applications for Travel Permits (advance parole travel authorization) Consider possible alternatives adjustment of status if married to a U.S. citizen coupled with advance parole travel authorization and reentry. adjustment of status based on “forgiveness clauses” (no fault of the individual or “technical reasons” discretionary parole

41 Audience Questions & AnswersJeffrey S. Horton Thomas Michael Boshnaick Deanne M. Bringle Angelo A. Paparelli