by Leigh Cole
Employment-based immigration status generally is specific to the employer and the position. When employees are terminated or promoted or their job description changes, you should expect their employment-based immigration status to be affected. Tensions can run high when an employee’s personal and family immigration status is put at risk, regardless of whether the change is a termination, a voluntary departure, or even a promotion. Employers should identify employees’ immigration status as an issue with an employment change as early as possible.
Record immigration status in personnel files
When an employment relationship isn’t going well or is in transition, it’s important to identify immigration issues as early as possible as you consider how to proceed. Poor performance, termination, job changes, layoffs, and even promotions can be particularly stressful for employees whose permission to live and work in the United States is based on their employment. Also, it’s possible that an employee’s spouse could lose his right to work in the United States if the employee’s job changes or ends. Employers are not required to base employment decisions on immigration considerations or continue employment because of immigration sponsorship. Even so, the dynamic should be brought into the discussion at the outset so the employer isn’t caught off guard by the employee’s questions and concerns regarding job changes and his immigration status.
It’s not unusual for a manager or supervisor who is dealing with changes or HR issues not to know or to forget that an employee’s immigration status is sponsored by the employer. It’s easy to lose track of the immigration element if there’s no mention of it in an employee’s personnel file. I-9s and other immigration records, such as public access files for H-1B cases, should be kept entirely separate from personnel files so they can be readily shared in accordance with lawful requests from government officials (for I-9s) or inquiring members of the public (for public access files). Personnel files should contain copies of the employer’s immigration applications for the employee, including I-129 petitions for nonimmigrant status, Program Electronic Review Management (PERM) applications for labor certification, I-140 petitions for immigrant status (green card), and TN letters of support. If adding copies of immigration applications to personnel files isn’t feasible or practical considering your record-keeping practices, a reasonable alternative is to at least mention in an employee’s personnel file that he has an employment-based immigration case.
Best practice: Keep files for I-9s and public access files for H-1B cases separate from personnel files. Place copies of immigration applications in the employee’s personnel file for future reference.
Ensure counsel is aware of immigration angle
Be sure to bring the employee’s immigration status to the attention of employment counsel advising you on the situation. Employment lawyers aren’t always given the full personnel file for review, and they won’t necessarily know that you sponsored the employee for immigration status. Even if the same law firm handles your immigration and employment matters, employment counsel initially will focus on the facts you share with them and may not identify immigration status as a key issue for preliminary analysis unless you share it. Employees may react differently to employment actions if they believe their immigration status may be in jeopardy. Employment and immigration are related but separate areas, so employment counsel may need to consult with immigration attorneys about the immigration consequences of an employment action.
Best practice: When consulting with employment counsel about job changes, tell your attorneys if an affected employee has employer-sponsored immigration status at the outset.
Consider whether the job change is ‘material’
For all employment-based immigration categories, a material change in employment will likely require an amendment to the employee’s immigration approval. That general principle applies to all employment-based nonimmigrant categories, including E-1 treaty investor, E-2 treaty trader, E-3 specialty occupation worker from Australia, L-1 multinational transferee, O-1 extraordinary ability, P-1 performer/athlete, TN professional under the North American Free Trade Agreement (NAFTA), and others. It also can apply to permanent residency cases, depending on the facts and the status of the application process. Any job change for sponsored employees must be considered in this light.
Under U.S. Citizenship and Immigration Services (USCIS) guidance issued in May 2015 in light of the Simeio decision, employers are required to file an amended H-1B petition if there is a “material change” in employment (see “DHS clarifies ‘material change’ in work location for H-1B employees” on pg. 3 of our June 2015 newsletter). Filing an H-1B amendment triggers a new prevailing wage analysis (and potentially a higher prevailing wage), a new worksite posting regarding the H-1B sponsorship, and the expense and administrative burden of preparing and filing a new petition. An amended H-1B petition must be filed before the employee moves to a different work location outside the area of intended employment covered by the existing H-1B approval. Filing an H-1B amendment after the location of employment changes is not sufficient. So, to maintain H-1B compliance, employers must be vigilant about even seemingly minor changes in the location of employment.
If there is a permanent residency case in process, ultimate approval of the case may be jeopardized if the position changes in material ways and no longer matches the position described in the labor certification or I-140 immigrant petition. For successful approval, the qualifying offer of employment must continue until the employee’s I-485 adjustment application is approved (after labor certification approval, if required, and I-140 approval) or until the I-485 adjustment application has been pending at USCIS for at least six months. The timing of termination or a job change has direct consequences on a pending permanent residency case and should be carefully considered when taking employment actions. Losing the benefit of a permanent residency case in process can have drastic effects for both the employee and the employer, which will have devoted significant time and resources to a case that is no longer viable.
Best practice: Consider potential immigration consequences of any job change for a sponsored employee, and determine whether it’s a material change that will have immigration consequences.
Early termination of H-1B employment has consequences
When H-1B employment ends before H-1B approval expires, the employee’s H-1B status and the H-4 dependent status of her derivative family members are terminated. The employer’s duty to pay the wages set forth in the approved H-1B petition continues until H-1B approval expires or the employer notifies USCIS of the early termination and withdraws the labor condition application approved by the U.S. Department of Labor (DOL). Employers have been held liable for back pay to former H-1B workers for periods beginning with early termination and lasting until the mandated notifications are provided to USCIS and the DOL. Also, if an employer terminates an H-1B employee before her H-1B approval expires, it must offer to pay the costs of return transportation to the worker’s home country and pay the costs if she actually returns to her home country.
Best practice: Identify early H-1B terminations as soon as possible so your required compliance steps can be completed on a timely basis.
USCIS adjudication times for employment authorization
As a general rule, once an employment authorization document (EAD) expires, the person can’t work until a new EAD from USCIS arrives in the mail. On December 31, 2015, USCIS proposed eliminating the requirement that it issue an interim EAD if it takes more than 90 days to approve the I-765 application for employment authorization. For years, employers and employees have been able to count on receiving EADs within 90 days or, if not, obtaining an interim EAD promptly from a local USCIS office.
USCIS hasn’t issued the final rule yet, but employers should expect it soon. I-765 applications for employment authorization should now be filed 120, not 90, days in advance. The change is most relevant to employees who are permanent residency applicants with pending I-485 applications for adjustment of status and beneficiaries of Deferred Action for Childhood Arrivals (DACA). If you have employees who renew their EADs each year, please share this information with them so they will know to apply earlier going forward.
The author can be reached at firstname.lastname@example.org or 802-859-7035.
On September 6, 2017 Leigh Cole presented a telephone Briefing for the membership of the National Association of College and University Attorneys (NACUA) regarding the announced phasing-out of the Deferred Action for Childhood Arrivals (DACA) program. She co-presented with Steven Bloom, Director, Government Relations, of the American Council of Education. NACUA Briefings are a new service of NACUA offering timely education on breaking legal developments. Briefings are short, audio-only presentations that are free of charge for NACUA members. Ms. Cole also presented NACUA’s debut Briefing in March 2017 on President Trump’s Executive Orders on immigration, co-presenting with Terry Hartle, Senior Vice President, American Council on Education.
Leigh Cole once again is serving as an instructor for an online course for the National Association of College and University Attorneys (NACUA). Since 2011 Ms. Cole has co-instructed NACUA’s course “Immigration Basics for Colleges and Universities” with Michael Pfahl, Associate Counsel, Kent State University. NACUA’s online courses offer in-depth coverage of important issues in the practice of higher education law, featuring pre-recorded webinars narrated by leading higher education law experts, extensive course materials, self-assessments and instructor-led conference calls.
Dinse, Knapp & McAndrew announces that twelve of its attorneys were recently selected by their peers for inclusion in the The Best Lawyers in America® 2015 (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.) in eighteen different practice areas. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
The practice areas and the attorney(s) listed in each area are as follows:
Commercial Litigation: Ritchie E. Berger, Karen McAndrew
Corporate Compliance: David Gurtman
Corporate Governance Law: Brian Murphy
Corporate Law: Jeffrey J. McMahan, Brian R. Murphy
Employment Law – Management: Amy M. McLaughlin, Jeffrey J. Nolan
Immigration Law: Leigh Polk Cole
Litigation – Construction: Karen McAndrew
Litigation – Intellectual Property: Shapleigh Smith, Jr.
Litigation – Labor & Employment: Amy M. McLaughlin
Medical Malpractice Law – Defendants: Ritchie E. Berger
Mergers & Acquisitions Law: Brian R. Murphy
Non-Profit / Charities Law: Brian R. Murphy
Personal Injury Litigation – Defendants: Ritchie E. Berger, Karen McAndrew
Product Liability Litigation – Defendants: Shapleigh Smith, Jr.
Real Estate Law: Austin D. Hart, Molly K. Lebowitz
Tax Law: Mark A. Langan
Technology Law: Jeffrey J. McMahan
Trusts and Estates: Mark A. Langan
Dinse, Knapp & McAndrew is one of the largest and most respected law firms in Vermont and northern New York. At Dinse, client service is our highest priority. For more information, please visit our website at www.dinse.com.
Leigh Cole, Editor
Dinse, Knapp & McAndrew, P.C., Burlington
by Leigh Cole
Deferred Action for Childhood Arrivals (DACA) has been front-page national news for several weeks, since Attorney General Jeff Sessions announced on September 5 that DACA is being phased out. As of this writing, under the new policy, DACA approvals will begin to expire on March 5, 2018, and all DACA approvals will expire by March 6, 2019. Vermont was one of the first 15 states that has sued the federal government to block the elimination of the program, and more lawsuits are being filed. There is momentum in Congress to address the issue in the coming legislative term, but we can’t predict what will happen.
All DACA beneficiaries are employed or enrolled in school or were honorably discharged from the U.S. military because that’s a threshold requirement for approval. There are about 800,000 DACA beneficiaries nationwide. Some states know they have a large number of DACA beneficiaries living, working, and studying within their borders. In Vermont, the DACA numbers are reportedly relatively small, but the numbers may be misleading. The statistics are based on residence reported to the U.S. Department of Homeland Security (DHS) for DACA approval or renewal, but DACA beneficiaries don’t necessarily continue to live and work in the state they reported to the government. Vermont employers may have no idea they have DACA beneficiaries on staff who could lose their work authorization starting March 6. And employers aren’t allowed to ask employees about their status.
Even if there are relatively few DACA beneficiaries in Vermont, the impact of the program’s phase-out can be very significant if your organization relies on one of them as an employee. Every Vermont employer should have at least a basic understanding of DACA in case it affects any of your employees— and, more important, to avoid an I-9 violation or a claim of employment discrimination.
Who qualified for DACA approval?
To qualify for deferral of deportation in two-year renewable periods under DACA, individuals must have arrived in the United States before they turned 16 and before DACA was implemented in June 2012, have been younger than 31 as of June 2012, be enrolled in school, a graduate, or honorably discharged from U.S. military service, have no criminal record, and pose no risk to public safety or security. Qualifying applicants are granted two-year periods of deportation deferral and work authorization, renewable in two-year increments if they continue to qualify for DACA.
Once a person has been unlawfully present in the United States for at least six months, it can be very hard to regain lawful status. Each case must be reviewed carefully to identify possible avenues under U.S. immigration law. There are categories of relief based on, for example, bona fide marriage to a U.S. citizen; military service; victimization by crime, domestic abuse, or human trafficking; fear of persecution; and extreme hardship to a U.S. citizen in the immediate family. Even though many DACA beneficiaries don’t qualify for any type of relief from deportation, it’s still worthwhile to explore possible options in every case.
DACA beneficiaries in Vermont
DACA applications and renewals are tracked based on the state where the applicant resided when the application was made. But an approved DACA beneficiary may live, study, and work anywhere in the United States. With so many colleges in Vermont and so many new hires of people moving to Vermont for employment, it’s very likely that the number of DACA beneficiaries in Vermont is higher than the number of Vermont residents who applied for DACA approval. That’s reflected in the DHS statistics showing 42 initial DACA approvals for Vermont residents and 162 DACA renewals for Vermont residents.
Those figures don’t include individuals who moved to Vermont after they applied for DACA status, left before applying for renewal, or were college students in Vermont who applied from their home state. And while most DACA beneficiaries came from Central America, Mexico, and South America, which make up a low percentage of the foreign-born population in Vermont, the DHS has reported DACA approvals for citizens of India (3,741), Jamaica (4,375), Pakistan (1,927), Philippines (5,055), Poland (1,951), and South Korea (7,813). Many citizens of those countries find their way to Vermont for education and employment.
The DHS also reports that there are 2,589 DACA approvals with an unknown country of origin (e.g., an applicant arrived as a baby after her parents traveled through many countries to get here and may not be available to provide details, so the child may not know exactly where she was born). If you picture a child growing up in the United States after arriving as an infant and knowing no other home, you can appreciate that there may be no way to identify a DACA beneficiary unless she tells you.
Understanding the scope of the problem
There’s a large population of foreign nationals in the United States who were brought here as children through no fault of their own and either arrived illegally or overstayed, which means they don’t have lawful immigration status. We don’t know exactly how many of these folks live in Vermont. Many of them don’t remember living in any other country and are American in every way other than not having a passport or a green card. Immigration violations are not criminal in nature, and many of these individuals have led exemplary lives in the United States, becoming high-achieving students (and even valedictorians), working as valued professionals and employees, or serving in the U.S. military.
Congress hasn’t been able to pass legislation to allow these individuals to become legal in the United States, and it’s simply not feasible to deport them. They may not even have a passport from their country of origin, and their country of origin may not cooperate with the U.S. government to accept them back, especially if they don’t speak the language or the country doesn’t appreciate how the U.S. government handled the situation as it developed. So the DACA program was introduced in June 2012 to allow individuals who meet stringent criteria to work and live in the United States without fear of deportation until Congress could address the issue.
The DHS reports that it apprehends and deports fewer than 100,000 foreign nationals in the interior of the United States each year. (The annual number of apprehensions at U.S. borders is much higher, accounting for people who are attempting to enter or have just entered the country.) There is a two-year backlog in U.S. immigration court. Individuals who have been in the United States for at least two years are entitled to due process and a hearing before an immigration judge to determine if they have a legal basis to remain in the United States. Adding just the 800,000 DACA beneficiaries to the DHS deportation and immigration court caseload would grind the system to a halt.
Don’t try to find out who’s a DACA beneficiary
DACA beneficiaries have no duty to volunteer any information about their immigration status. They have employment authorization documents (EADs) identical to the EADs issued in many other types of immigration cases, including for spouses of U.S. citizens applying for permanent resident status (a green card). An EAD is a List A document for I-9 purposes.
When a new hire presents an EAD with no notation about how the holder qualified for it, you aren’t allowed to ask for more information or documentation of the person’s immigration status. (If there is a notation on the card—e.g., “Post-Completion Optional Practical Training”— you should refer to the I-9 instructions for any other I-9 documentation that must be presented with the EAD.) You can face significant fines and penalties if you require extra documentation or additional steps in the I-9 process for new hires or employees who look or sound “foreign.” So unless a new hire or a current employee volunteers the information that she is a DACA beneficiary, you may never know, and most likely, you have no lawful way to find out.
Many employers are very curious about whether they have DACA beneficiaries on staff, perhaps with the best intentions of offering moral support and encouragement in the aftermath of the announced phasing out of the program. But making inquiries can amount to an I-9 violation or inconsistent treatment based on employment verification and therefore could look like discrimination.
I-9 rules protect both foreignborn and U.S. Workers
The I-9 rules protect foreign-born U.S. nationals and foreign nationals with U.S. work authorization from discrimination in employment as much as they protect U.S. workers from competition from undocumented workers. Just as you aren’t allowed to request more or different documents than the documents outlined in the I-9 and its instructions, you aren’t allowed to reverify I-9s unless they expire or ask employees for immigration documentation if their I-9s haven’t expired.
If you find a problem with an I-9 in a routine audit that isn’t focused on particular employees who look or sound like foreign nationals, you may be able to approach the employee, depending on the nature of the error. And there are some limited exceptions allowing inquiries outside the I-9 context (e.g., if the employer has to comply with export control regulations restricting the assignment of foreign nationals to work on certain projects). But in most situations, the I-9 rules severely restrict how you may inquire about the immigration status of new hires and current employees. The DHS takes I-9 violations very seriously, whether the employer is overly lax about documentation or overly zealous about requesting additional information or treating new hires and employees inconsistently.
What should Vermont employers do in light of DACA phase-out?
The most important things you can do right now for any DACA beneficiaries working at your organization is (1) make sure they know the window for renewing DACA is closing, possibly forever, and (2) caution them against traveling outside the United States if they obtained an advance parole travel document. Currently, October 5 is the deadline to file renewals for DACA approvals that end before March 5, 2020, and no other renewal applications will be accepted.
DACA renewals already pending with U.S. Citizenship and Immigration Services (USCIS) will be adjudicated, but applications for travel documents will be closed and returned to the applicant. It’s always been uncertain that DACA beneficiaries would be allowed to return to the United States even with an advance parole travel document and even if they traveled for a laudable purpose such as study abroad or to visit sick family members. Now it seems clear that it’s riskier than ever for DACA recipients to depart the United States if they plan to return, and they could be barred from returning for three years, 10 years, or even indefinitely. Any planned travel should be reconsidered in light of recent developments.
If a DACA beneficiary knows that you know about her immigration status and is comfortable discussing it, then you could approach her directly to make sure she’s informed about the recent changes to the program. A more cautious approach is to share the information broadly with your entire organization so DACA beneficiaries will have it. They may then choose to self-identify or discuss their situation with you.
If you open a line of communication with a DACA beneficiary, recommend that he confer with personal immigration counsel to explore his potential avenues to legal status. And if an employee is distressed and struggling with the information, treat the situation like you would any other personal matter that is causing an employee difficulty at work.
Leigh Cole can be reached at email@example.com or 802-864- 5751.
Dinse, Knapp & McAndrew announces that twelve of its attorneys were recently selected by their peers for inclusion in the The Best Lawyers in America® 2016 (Copyright 2012 by Woodward/White, Inc., of Aiken, S.C.) in nineteen different practice areas. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 36,000 leading attorneys cast almost 4.4 million votes on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
The practice areas and the attorney(s) listed in each area are as follows:
- Commercial Litigation: Ritchie E. Berger, Karen McAndrew
- Corporate Compliance Law: David Gurtman
- Corporate Governance Law: Brian Murphy
- Corporate Law: Jeffrey J. McMahan, Brian R. Murphy
- Education Law: Jeffrey J. Nolan, Karen McAndrew
- Employment Law – Management: Amy M. McLaughlin, Jeffrey J. Nolan, Karen McAndrew
- Immigration Law: Leigh Polk Cole
- Litigation – Construction: Karen McAndrew
- Litigation – Intellectual Property: Shapleigh Smith, Jr., Karen McAndrew
- Litigation – Labor & Employment: Amy M. McLaughlin
- Medical Malpractice Law – Defendants: Ritchie E. Berger
- Mergers & Acquisitions Law: Brian R. Murphy
- Non-Profit / Charities Law: Brian R. Murphy
- Personal Injury Litigation – Defendants: Ritchie E. Berger, Karen McAndrew
- Product Liability Litigation – Defendants: Shapleigh Smith, Jr.
- Real Estate Law: Austin D. Hart, Molly Langan
- Tax Law: Mark A. Langan
- Technology Law: Jeffrey J. McMahan
- Trusts and Estates: Mark A. Langan
Leigh Cole, Esq., a director and shareholder at Vermont-based Dinse, Knapp & McAndrew, P.C. and Chair of the firm’s Immigration Group, also will serve as immigration counsel to Hirschfeld Kraemer LLP, a California-based employment law firm. “The Employment Law Alliance, and Hirschfeld Kraemer and Dinse in particular, have always been forward-thinking, innovative organizations. I am excited to extend my practice and synergistically combine Dinse’s resources with HK’s via this transcontinental partnership,” said Cole. “Strengthening ties between our member firms is a shared objective and one that will no doubt prove beneficial to clients on both sides of the country.”
Cole, chair of Dinse’s Immigration Group, has extensive experience with employment-based immigration matters and advises on immigration compliance, best practices, audits and self-audits, applications for immigration benefits and international student and scholar services for educational institutions. Her clients include general counsels, human resources directors, international education advisors, recruiters and others responsible for immigration compliance for institutions, organizations and businesses.
“This unique partnership with Leigh is made possible through the Employment Law Alliance and enables Hirschfeld Kraemer to provide top-drawer and seamless assistance to its clients with all aspects of immigration and global migration law,” said Stephen J. Hirschfeld, co-managing partner of Hirschfeld Kraemer. “As immigration law is a federal domain, the firm was able to be geographically agnostic in looking to bolster its resources in this area.” Hirschfeld added, “Given the close working relationship between our firms as both of us are members of the ELA, this strategic relationship seemed to be a natural fit for us.”
Active in the legal community, Cole frequently speaks before groups including the National Association of College and University Attorneys (NACUA), the Association of International Educators (NAFSA) and as part of the annual University of Vermont Legal Issues in Higher Education Conference. Notably, she has previously co-presented two courses on immigration law for NACUA. In addition to an active conference schedule, Cole is also a member of the American Immigration Lawyers Association (AILA) and has served as editor of that organization’s Immigration and Nationality Law Handbook since 1999.
About Dinse, Knapp & McAndrew, P.C.
Dinse, Knapp & McAndrew, P.C. is a Vermont-based law firm with extensive experience in employment law and education law. Dinse is the exclusive Vermont member of the Employment Law Alliance. Dinse lawyers represent employers and human resource professionals with employment law issues for management, and colleges and universities, private secondary schools and public school systems in the legal issues affecting educational institutions. Dinse prepares a monthly newsletter, The Vermont Employment Law Letter, published for each state by M. Lee Smith Publishers. The firm serves as select counsel in Vermont to United Educators Risk Retention Group.
About Hirschfeld Kraemer LLP
Hirschfeld Kraemer is a California-based labor and employment firm with offices in Northern and Southern California and Reno, Nevada. It is the exclusive California and Northern Nevada member of the Employment Law Alliance – the world’s largest network of labor and employment lawyers. The firm’s clients include cities, counties and institutions of higher education in addition to Fortune 500 companies. In higher education alone, the firm represents more than 140 colleges and universities, both in the United States and abroad. The firm’s driving principle is to deliver practical, no-nonsense employment and labor counsel. On the Web at: www.HKemploymentlaw.com.