Q&A: Potential Impact of New Immigration Policies on Retail Stores
Chain Store Age spoke with Susan Cohen, the founder and chair of Mintz Levin’s immigration practice, about how the Trump adminstration’s policies on immigration could impact retail store operations.
Q. What immigration law and policy changes made by the Trump administration directly impact chain store owners, managers, and their employees?
A. Within a week of taking office, President Trump immediately issued a number of Executive Orders on immigration, with the stated purpose of enhancing border security, enhancing public safety in the interior of the United States, and prohibiting travel into the U.S. for people from a list of designated countries (the “travel ban”). He has continued to release additional Executive Orders and other policy directives that impact and seek to limit U.S. immigration and protect American workers.
The agencies that enforce our immigration laws (the Department of Homeland Security [DHS], the Department of State, and the Department of Labor), have all, in turn, issued related guidance and policy changes, stemming from the President’s immigration-related Executive Orders and pronouncements. It is fair to say that every aspect of immigration processing, policy, and practice, has been impacted by the Administration’s stance on immigration.
The Trump administration is highly focused on immigration enforcement, and on making major changes to immigration law, policy, regulation and practices. Enforcement of the immigration laws impacts employers and employees in different, but related ways.
The enforcement-oriented focus of this Administration impacts store owners and managers both with regard to general immigration compliance (ensuring all employees are authorized to work in the U.S. and that the related paperwork is in order [I-9 and E-Verify documentation]) and with regard to sponsorship of foreign national employees for temporary work visas and for permanent residence (green card) status.
Q. What changes are you seeing in the adjudications of immigration petitions filed by employers on behalf of their employees?
A. US Citizenship and Immigration Services (USCIS) is the arm of DHS that makes decisions on immigration petitions filed by employers on behalf of foreign national employees. The President released his Buy American, Hire American Executive Order on April 18, 2017.
This Executive Order immediately impacted adjudications by USCIS relating to a variety of immigration petitions. Employers are seeing increased scrutiny and push-back from USCIS, causing delays in receiving visa petition approvals and increased denials. In many cases the petitions were approvable when filed (and should have been approved without question), and the resistance to these immigration petitions by the government requires stores to incur higher legal fees and to spend additional time and crafting responses, and in some cases appeals, of these decisions. The increased scrutiny of petitions is slowing down processing times for various types of work visas and green card applications.
The adjudication of H-1B temporary work visa petitions has been particularly impacted by this change in policy. These visas are for temporary professional-level workers (whose jobs require at least a specialized bachelor’s degree). Within the last several months USCIS has issued thousands of “requests for evidence” in H-1B cases, challenging virtually every employer’s petition seeking an H-1B approval for an entry-level position, questioning whether someone at that level is truly professional and truly qualifies for the H-1B visa. In most of these cases the petition was and is approvable, but the employer community is facing significant push-back from the government on these cases.
Q. How are these changes impacting chain store employees?
A. Following issuance of the President’s Buy American, Hire American Executive Order, the Foreign Affairs Manual (FAM) was also amended. The FAM is the immigration reference tool used by Consular Officers at overseas Consular Posts. Officers consult the FAM in order to decide whether or not to approve a visa applicant’s visa application.
As a result of the Buy American, Hire American Executive Order, more consular officers are second-guessing approved immigration petitions for a wide variety of types of visas, and foreign national employees who travel abroad to get their visas stamped into their passport, have less certainty that the visa will be issued.
Generally speaking, a consular officer is not supposed to question an approved petition, unless he or she has specific information leading him/her to believe there was some kind of fraud or misrepresentation in the application process. Yet in the current environment, more and more consular officers are taking it upon themselves to question visa applicants about their qualifications and credentials. This has contributed to a greater sense of anxiety on the part of foreign nationals who travel abroad and need to secure a visa stamp before they can return to the United States.
Visa processing abroad has also slowed down significantly, as consular officers have been charged with erring on the side of caution and requesting additional background checks on visa applicants. These extra background checks can delay the issuance of a visa by up to 6 weeks or longer.
Some visa applicants are also receiving an additional visa questionnaire, asking them to provide extremely detailed biographical information, including social media account information, that goes well beyond what is requested in the standard visa application.
Foreign nationals are also facing increased scrutiny at border crossings and international airports when returning to the U.S. from travel abroad. In addition to more pointed questioning by Customs and Border Protection (CBP) officers about the purpose of their entry, more travelers are facing questions about their handheld devices and laptops, and are being asked to turn over their devices and passwords for inspection, prior to being allowed to enter the U.S. There is no right to privacy when seeking admission to the U.S. and if someone refuses to provide a password or hand over their device, they can be refused entry and their device can be confiscated for a forensic analysis (and returned later).
Q. How does the rescission of DACA impact chain stores and their employees?
A. On September 5, 2017 the Administration ordered the rescission of the Deferred Action for Childhood Arrivals program (DACA). Any DACA recipient (also known as a “Dreamer”) whose DACA benefits expire on or before March 5, 2018 were given until October 5, 2017 to file renewal applications for a new 2-year period, which includes renewed employment cards which authorize them to work for that same amount of time. Any DACA beneficiary whose DACA benefits will expire after March 5, 2018 are ineligible to renew their status and their work authorization and unless legislation is passed and implemented to protect DACA beneficiaries, most will be vulnerable to deportation once their DACA status expires.
There are approximately 800,000 DACA recipients in the U.S. so the impact of the elimination of this program is enormous.
Chain stores employ a significant number of DACA beneficiaries, and the loss of their employment authorization will drastically impact both stores and the employees and their families.
It is important to make sure to terminate DACA employees when their employment authorization expires to avoid immigration liability. This should be done strictly on the basis of the documentation that was provided by the employee in the I-9 process. By the same token, it is important not to terminate employment prematurely solely for immigration reasons, if the employment authorization document provided in the I-9 process is still valid. Stores should not undertake immigration-related terminations without consulting with immigration counsel, to avoid violating the anti-discrimination provisions of the Immigration Reform and Control Act of 1990 (IRCA).
Q. How does the increased focus on immigration enforcement impact the owners and managers of stores?
A. It is more important than ever for stores to make sure that their I-9 and E-Verify documentation is in order, as an increased focus on immigration enforcement means that there will be more I-9 audits, inspections, and immigration raids.
Immigration and Customs Enforcement (ICE) conducts I-9 inspections and only provides employers with 72 hours advance notice before conducting an inspection. Employers should take proactive steps to ensure their immigration paperwork is in order and that their employees are legally authorized to work in the U.S. It is prudent to budget for compliance, to avoid costly fines and penalties. Even companies that do not employ any foreign workers can face enormous fines for I-9 paperwork violations.
Stores should invest in I-9 training and should adopt best practices regarding I-9 retention and recordkeeping.
The Trump administration would like to make the E-Verify program mandatory for all U.S. employers. In anticipation of potential universally mandated E-Verify, employers who are not yet enrolled in the program, should review the E-Verify program requirements with immigration counsel to determine whether it makes sense to enroll proactively.
All chain stores, whether they are enrolled in E-Verify or not, should consider implementing a written immigration policy which demonstrates that immigration compliance is a priority for the company.
In the event of an audit or investigation, it can be highly beneficial for a store manager or owner to be able to show such a document to the government. (All employers should be warned however, that such a policy can potentially backfire on an employer that has a written policy but does not follow its own policy.)
Susan Cohen is the founder and chair of Mintz Levin’s immigration practice. Her clients have included various types of retail businesses. She is actively involved in the American Lawyers Association (AILA) and has chaired and co-chaired a wide range of national AILA committees.
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