How to Stay in Compliance with the Latest Immigration Laws

Even if you are fairly certain you hire only U.S. citizens, several new laws were added in 2021 that you will need to follow.

More than 40 million people not born in the United States are currently living here, according to the Pew Research Center. In addition, U.S. Customs and Border Protection reports that 100,000 to 200,000 illegal immigrants are crossing the southern border every month.

Employers are responsible for determining whether a potential employee can legally work in the United States. To verify and record the identity and employment authorization of individuals hired for employment, employers must complete Form I-9 for each employee. These forms should be retained for three years after the date of hire or one year after employment is terminated — whichever is later — and should be made available for inspection if requested by the Department of Labor, Department of Homeland Security (DHS) or U.S. Immigration and Customs Enforcement (ICE).

In addition, the Immigration and Nationality Act (INA); Title VII of the Civil Rights Act of 1964 (Title VII); and other federal laws require employers to refrain from:

• Requesting that employees produce documents that are different from those required by Form I-9 or rejecting a document that reasonably appears to be genuine.
• Treating employees differently based on their real or perceived citizenship or immigration status.
• Treating employees differently based on their place of birth, country of origin, ethnicity, ancestry, native language, accent, or the perception that they look or sound “foreign.” The INA’s national origin prohibition applies to employers who have 4 to 14 employees. The U.S. Equal Employment Opportunity Commission’s (EEOC) rules apply to employers with 15 or more employees.
• Intimidating, threatening, coercing or retaliating against any employee because the employee filed an immigration-related employment discrimination charge or complaint, or participated in an investigation against the employer, or asserted his/her or another person’s rights under the INA.

Rule Changes and Case Law Updates

Recent changes to immigration law in the U.S. that affect an individual’s employment status mean that new DACA applications can be accepted: The Deferred Action for Childhood Arrivals (DACA) program allows people who entered the United States while they were minors to apply for a temporary reprieve from deportation. Under the Trump administration, only renewed applications were accepted. Due to a Dec. 7, 2020, Court order, U.S. Citizenship and Immigration Services (USCIS) must accept new DACA applications and DACA renewal applications.

If you have any individuals who have a work authorization/DACA that is expiring, they should re-apply for the program.

• AEWR Frozen: The Department of Labor froze AEWR (Adverse Effect Wage Rates) wages at the December 2020 level until 2023. It’s expected that this will be a significant cost savings for farmers.
• Visa Moratorium Cancelled: President Donald Trump signed a moratorium on granting H1B visas for tech workers and H2B visas for temporary non-agricultural work in June 2020. However, the moratorium was later halted. The Biden administration has lifted some of the Trump administration’s changes to make the application process easier.

Wage Increase Frozen: Although a wage increase for H1B workers was proposed, there was concern the increase would make them more difficult to hire. The U.S. Citizenship and Immigration Services did not publish its policy rationale into the rule making for the increase, so the increase was placed on hold.

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