The Inside Wall

Are bricks being stacked up against employment-based immigration?

The Inside Wall

Charla Truett

February 20, 2018 10:56 AM

Are bricks being stacked up against employment-based immigration?

While national focus is on an exterior wall that would secure our borders, recent trends in employment-based immigration should signal to employers that changes in legal immigration policies could create barriers to hiring, retaining, and even affording to employ foreign nationals. USCIS is shifting guidelines, creating more work for both initial and extension petitions. ICE has intensified I-9 audits, resulting in large fine amounts and criminal charges. Employers and attorneys need to remain flexible to keep their heads above this ever-growing wall.

Brick 1

Fraud and misuse allegations against H-1B and L-1 employers led the current administration to promise an increase in site visits. The 2018 goal has increased to 20,000, and a targeted site visit program will mix random compliance and detected fraud. Due to the January 25 executive order, targeted site visits will focus on cases where the employer’s business information cannot be verified through commercially available data; employers are H-1B dependent—high ratio of H-1B workers compared to U.S. workers; and employers petition for workers to work offsite for a third-party. USCIS is working to improve its information-sharing relationships with the DOL, DOS, and ICE to better identify high-risk employers.

Employers should audit H-1B and L-1 files to confirm that workers are performing the original petition job, that they are earning the same wage (or more), and that the position qualifies for H-1B or L-1 status. Supervisors and administrative staff at each worksite must be prepared. Employers should confirm that all public files are organized, complete, and readily available. Assigning a point of contact for all audit communication helps streamline the process. Participation in the site visit is voluntary, but noncooperation is a red flag.

Brick 2

In October 2017, USCIS rescinded its 2004 policy requiring officers to defer to prior determinations when evaluating nonimmigrant extension petitions if the underlying facts and parties were the same. The same conclusion will no longer be the default; rather, an adjudicator will evaluate each case individually. This change creates additional work for employers and attorneys, as submitting a skeleton extension petition will no longer suffice. Employers should keep accurate and complete records (payroll, company information, and employee work product) throughout the foreign national’s employment so that the extension filing is less of a burden.

Brick 3

In line with the Buy American, Hire American Executive Order and other USCIS directives, the 2017 H-1B lottery saw an upsurge in requests for additional evidence targeting Wage Level 1 determinations and specialty occupation qualifications. Wages for an H-1B worker depend on the nature of the job offer, the area of intended employment, and similar workers’ job duties. The employer’s minimum education and experience requirements determine the wage level. A Wage Level 1 is generally an entry-level position. USCIS began questioning if these jobs’ qualifications were a specialty occupation. Wage Level 1 jobs can meet H-1B requirements, but future success may hinge on the link between the job duties and the educational requirement and correlation to the wage level. The best strategy moving forward, if feasible, is selecting a Wage Level 2 or higher to avoid this issue altogether.

Brick 4

In 2017, the Form I-9 was updated twice, and fines for employing unauthorized workers and Form I-9 errors continued climbing. ICE audits mainly targeted high-risk industries—construction, hospitality, restaurants. Emphasis remains on penalizing employers for retaining unauthorized workers, but some regions saw the resurgence of fines for substantive I-9 mistakes. Employers must keep up with continually changing I-9 documentation to avoid these hefty fines. Most importantly, ICE and the DOJ have not hesitated in pursuing criminal actions against employers. No shortcut to employ an illegal worker is worth the price. Employers have been jailed for fraud, abetting, and false statements. Knowledge of a worker’s unauthorized status can come from other sources, too. For example, in complying with the 1095 filing requirement of the Affordable Care Act, employers may receive a SSN mismatch letter. This letter states that the SSN provided does not match IRS records, thus hinting at possible unauthorized status of an employee. Unless a mistake has been made, the employee may be unauthorized. Tough decisions must be made to remain in compliance or face future fines.

Trying to scale this expanding wall will be difficult. Maintaining compliance is key, and in most situations, employing foreign nationals is still doable. But future bricks may require employers to determine if the risk of climbing higher is worth it


Kelli Gavin practices immigration law in Dallas, Texas, with the Law Offices of Richard A. Gump, Jr. Kelli graduated magna cum laude from Texas A&M University with a BA in history in 2010. She earned her Juris Doctor degree from Southern Methodist University’s Dedman School of Law in 2015, graduating magna cum laude and receiving the Order of the Coif.

Charla Truett is certified by the Texas Board of Legal Specialization in immigration and nationality law. She is a partner with the Law Offices of Richard A. Gump, Jr. Charla is a graduate of Texas Tech University and SMU School of Law.

Related Articles

The Employment Pandemic

by Meredith Caiafa and Sarah Greene

The pandemic has had far-reaching effects on employment law since it officially took hold in 2020, but the litigation and lawmaking surrounding it are mutating faster than the variants. Here’s how lawmakers and businesses can keep up.

Employment Law During COVID-19

U.K. Introduces Revisions to Right-to-Work Scheme and Immigration Rules

by Gregory Sirico

Right-to-Work Scheme and Immigration Rules in

Destiny Fulfilled

by Sara Collin

Was Angela Reddock-Wright destined to become a lawyer? It sure seems that way. Yet her path was circuitous. This accomplished employment attorney, turned mediator, arbitrator and ADR specialist nonpareil discusses her career, the role of attorneys in society, the new world of post-pandemic work and why new Supreme Court Justice Ketanji Brown Jackson represents the future.

Interview with Lawyer Angela Reddock-Wright

Announcing the 2022 Best Lawyers: The Employment Law Issue

by Best Lawyers

Featuring the top legal talent from The Best Lawyers in America, Best Lawyers: Ones to Watch in America and “Lawyer of the Year” recipients for Labor and Employment Law, Workers’ Compensation Law, ERISA Law and Ethics and Professional Responsibility Law.

Best Lawyers Employment Law Publication

NYC Pay Transparency Law Gets New Start Date

by Justin Smulison

This historic law regarding pay transparency in New York City originally scheduled to take effect last week was rescheduled to Fall 2022.

NYC Stand Resolute on Pay Transparency

Avon Calling

by Rebecca Blackwell

Nostalgia-soaked childhood memories of the neighborhood "Avon lady" can mask an insidious reality: Multilevel marketing companies are often little more than polished Ponzi schemes. My experience is illustrative.

Multilevel Marketing Is Not Employment

Paying It Forward

by Best Lawyers

One woman’s journey from immigrant daughter to immigration attorney: her passion, purpose, and pursuit of excellence.

A Woman's Journey From Immigrant Daughter to

Nina T. Pirrotti - New Haven 2020 Lawyer of the Year

by Best Lawyers

Employment Law - Individuals New Haven, Connecticut

Nina Pirrotti

The Price of Admission

by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

WATCH: Supreme Court Rules DACA Stays

by Best Lawyers

Three immigration law attorneys join the CEO of Best Lawyers to discuss the Supreme Court's decision to block the Trump administration's effort to stop the DACA program.

Panel: DACA SCOTUS Ruling

WATCH: A Landmark Win for LGBTQ Rights

by Best Lawyers

Two top employment attorneys join the CEO of Best Lawyers to discuss the landmark Supreme Court ruling protecting gay and transgender employees.

Panel: LGBTQ SCOTUS Ruling

Paula Greisen - Denver 2020 Lawyer of the Year

by Best Lawyers

Litigation - Labor and Employment Denver, CO

Paula Greisen

Cost of Entry

by Best Lawyers

As naturalization fees increase, a local nonprofit provides financial relief for immigration

Financial Relief for Immigration in Florida

Traversing the Immigration Frontier

by Best Lawyers

Brian Graham Interview LOTY

In the News: Georgia

by Nicole Ortiz

A summary of newsworthy content from Colorado lawyers and law firms.

In the News Georgia 2018

Myers Thompson: A Leading Partnership in Immigration Law

by Sean Stonefield

As part of its practice, Myers Thompson focuses on helping companies manage their internal immigration policies.

Minnesota Immigration Law

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Best Lawyers: Ones to Watch in Canada 2023

by Best Lawyers

The year 2023 marks the second edition of Best Lawyers: Ones to Watch in Canada, highlighting professionals earlier in their legal careers all across Canada.

Blue background with white stairs formed out of lines

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

All Eyes to the Ones on the Rise

by Rebecca Blackwell

Our 2023 honorees recognized in Best Lawyers: Ones to Watch in America™ tell us more about how their path to law formed, what lead them to their practice areas and how they keep steadfast in their passion to serve others.

Person walking between glass walls towards window

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Press and Publicity: How Television and Social Media Impact Legal Careers

by Justin Smulison

In recent years, with social media giving minute by minute reporting, many lawyers are finding themselves thrust into a spotlight they never planned for. How are lawyers grappling with unexpected stardom, media coverage and merciless influencers?

Close up of camera at news station

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022