As we start the second quarter of 2024, there are a number of important developments in immigration compliance involving many of the applicable agencies.

There has been a recent explosion of Immigrant & Employee Rights (IER) charges and investigations.  With more and more investigations, it appears IER is attempting to flex its muscles concerning its authority.  At a recent American Immigration Lawyers Association meeting, Alberto Ruisanchez, Chief Counsel for IER, stated that because IER has a “statutory obligation to investigate charges,” it may determine the ground rules, referred to as “parameters,” for interviewing witnesses.  Ruisanchez said the IER has the authority to conduct investigatory interviews of managerial officials without their legal counsel present if the IER feels it is best for the neutral fact-finding investigation.  Additionally, even if counsel is present, Ruisanchez said the IER may refuse to allow the employer’s counsel to speak during the interview or make objections to questions until the end of the interview after the questions and answers have taken place.

It is unclear how having a statutory obligation to investigate a charge gives the IER the ability to exclude counsel.  Other agencies, such as the National Labor Relations Board (NLRB), have a statutory obligation to investigate charges and are statutorily considered a neutral fact-finding investigation. However, the NLRB has not asserted it can preclude counsel from interviews of management officials.  It would not be surprising to see this issue litigated in federal court in the near future as the right to counsel is a fundamental right.

The U.S. Citizenship and Immigration Services (USCIS) is preparing for the “pilot release” of E-Verify+ (formerly called E-Verify NextGen) at the end of April 2024.  The pilot will involve about 10 employers and will expand at a later date, after receiving feedback from the participants.  E-Verify+ is an effort to integrate more fully the Form I-9 and E-Verify. Further, it will provide greater efficiency and allow employees a larger role in the verification process.  We shall see how this operates in practice as “the devil is in the details.”

Additionally, the USCIS explained when the anti-fraud tutorial must be taken as part of the requirements for the use of the alternative procedure (also referred to as virtual verification). The USCIS  stated that if an employer is already enrolled in E-Verify and in good standing as of August 1, 2023, it does not need any additional anti-fraud training requirement. However, if an enrolled employer wants to access the anti-fraud tutorial, it may do so.

U.S. Immigration and Customs Enforcement (ICE) emphasized in this meeting that its priority for ICE I-9 audits is to go after businesses involved in human trafficking and other egregious violations.  It is unknown what, if any, effect this will have on the number of ICE I-9 audits. Additionally, if there is a change in administrations in 2025, it is unknown what the standard for I-9 audits will be. An additional hot issue at ICE is its determinations that some electronic I-9 audit trails are insufficient; thus, all I-9 forms through the electronic I-9 systems are in violation of the law. However, ICE has yet to  provide any real guidance as to what a valid audit trail is. The current guidance is not very detailed nor useful in practice.

As you can see, there is never a dull moment in the world of immigration compliance.