United States – Immigration Newsletter

In this edition

  • U.S. Business Visitors Using the Visa Waiver Program May Soon Be Asked for Social Media Information
  • I-9 Checkup: Nine Best Practices for I-9 Compliance
  • Proposed Rule Could Increase Scrutiny of Employers During the Employment Eligibility Verification (I-9) Process
  • DHS Proposes Long-Awaited International Entrepreneur Rule
  • How to Respond When ACA Electronic Reporting Triggers Notification of an Incorrect TIN
  • Welcome New Immigration Attorneys

U.S. Business Visitors Using the Visa Waiver Program May Soon Be Asked for Social Media Information

By Maria Fernanda Gandarez, Matthew Kolodziej

The federal government has proposed a new rule requiring that applicants for the Visa Waiver Program (VWP)-which allows citizens of certain countries to enter the United States without visas-be asked to voluntarily disclose their social media accounts in order to allow U.S. Customs and Border Protection (CBP) to further investigate their backgrounds before allowing them to use the program. The VWP allows citizens or nationals of the following countries to enter the United States without visas for the purposes of tourism or business: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom. The VWP application process is quick and easy via the online Electronic System for Travel Authorization (ESTA).

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Maria Fernanda Gandarez is a shareholder in the New York City office of Ogletree Deakins

Matthew Kolodziej is a staff attorney in the New York City office of Ogletree Deakins


I-9 Checkup: Nine Best Practices for I-9 Compliance

By Jennifer G. Roeper

In today’s complicated maze of compliance requirements, most employers are aware of the need to complete a Form I-9 for every new hire. However, some employers fail to recognize the significance of the I-9 form. What appears to be a simple two-page onboarding form can carry the potential for six-figure liability if not completed correctly. Effective August 1, 2016, Immigration and Customs Enforcement (ICE) has increased the base penalties for failure to comply with the I-9 requirements; civil fines now range from $375 to $3,200 per form-numbers that can be staggering in the face of an ICE audit.

As the number of ICE audits around the country continues to increase, now is the time for employers to perform I-9 checkups, review their I-9 processes, and eliminate potential liability before an ICE agent appears at the front door.

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Jennifer Roeper is of counsel in the Tampa office of Ogletree Deakins


Proposed Rule Could Increase Scrutiny of Employers During the Employment Eligibility Verification (I-9) Process

By Natalie L. McEwan

Under existing law, employers are required to verify the identities and employment eligibility of employees hired after November 6, 1986, by completing the Form I-9. In addition, employers cannot discriminate against workers during the Form I-9 process. In support of this directive, the antidiscrimination provision of the Immigration and Nationality Act (INA) prohibits certain unfair immigration-related employment practices which play out during the employment eligibility verification, or Form I-9, process. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is part of the Civil Rights Division of the U.S. Department of Justice (DOJ) and is tasked with enforcing these provisions. On August 15, 2016, the OSC published in the Federal Register a proposed rule, “Standards and Procedures for the Enforcement of the Immigration and Nationality Act,” which would effectively increase the degree of scrutiny to which employers would be subject during the employment eligibility verification process.

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Natalie L. McEwan is an associate in the Tampa office of Ogletree Deakins


DHS Proposes Long-Awaited International Entrepreneur Rule 

By Andrea C. Davis, Maria Fernanda Gandarez

On August 26, 2016, the U.S. Department of Homeland Security (DHS) released advance notice of proposed rulemaking designed to encourage and facilitate entrepreneurship within the United States. The notice was published in the August 31, 2016 Federal Register and is subject to a 45-day comment period that will end on October 17, 2016.

This proposed rule represents long-awaited movement on President Obama’s November 2014 executive action directing DHS to create a so-called “startup visa.” The available work visa options most commonly used by entrepreneurs each pose significant drawbacks.

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Andrea C. Davis is an associate in the Raleigh office of Ogletree Deakins

Maria Fernanda Gandarez is a shareholder in the New York City office of Ogletree Deakins


How to Respond When ACA Electronic Reporting Triggers Notification of an Incorrect TIN

By Maria Fernanda Gandarez, Bernhard Mueller, Matthew Kolodziej

The Affordable Care Act’s (ACA) electronic reporting requirements for larger companies may inadvertently notify employers of employees using incorrect Social Security numbers. The ACA requires certain large employers with 50 or more employees to offer qualified healthcare plans to employees or risk paying fines. Employers can report employee insurance coverage with Form 1095-C. In the 2015 tax year, it became mandatory for employers that submit 250 or more Forms 1095-C to do so electronically. The electronic reporting system also automatically checks the employee’s name and Taxpayer Identification Number (TIN), which is almost always his or her Social Security number, against government databases, flagging any mismatches. A mismatch will then generate a notification for the employer. Employers should prepare for mismatch notifications and take care not to run afoul of discrimination laws. Importantly, employers should not automatically assume that the employees whose information generates mismatches are not authorized to work in the United States.

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Maria Fernanda Gandarez is a shareholder in the New York City office of Ogletree Deakins

Bernhard Mueller is a shareholder in the Columbia office of Ogletree Deakins

Matthew Kolodziej is a staff attorney in the New York City office of Ogletree Deakins


Welcome New Immigration Attorneys

Ogletree Deakins is pleased to announce the addition of the following business immigration attorneys:

Fauzia Amlani has joined the Atlanta office as an associate. Fauzia, a member of the American Immigration Lawyers Association, has practiced immigration law exclusively since being admitted to the State Bar of Georgia, primarily working with employers and assisting them through the process of hiring and employing foreign nationals. Additionally, she has volunteered with Tapestri, a nonprofit organization that advocates for victims of domestic violence and human trafficking within the immigrant and refugee population. Fauzia earned a B.A. in Sociology from Oglethorpe University and her J.D. from Hofstra University School of Law.

James Garilas has joined the Columbia office as an associate. His practice is focused on various employment-based immigration matters, including obtaining both immigrant and nonimmigrant visas and assisting corporations with Form I-9 compliance. During law school, James worked for Ogletree Deakins in Columbia as a summer associate. James earned his B.S. in Economics from the College of Charleston and his J.D. from the University of South Carolina School of Law.


The information above has been redistributed by Emigra Worldwide with permission from Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Emigra Ogletree Worldwide combines world class global immigration expertise with outstanding U.S. business immigration legal services in one, client-friendly package. The result  – a proven and seamless approach to your business immigration needs. The services and advice you need, where you need them. That is opening your world of immigration. That is Emigra Ogletree Worldwide. Your world is waiting.

The information herein is for general purposes only and not intended as advice for a particular matter. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work.