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Immigration Blog

Restaurant Wins Specialized Knowledge Visa Fight with DHS

AUTHORS:  Michael Neifach and Minnie Fu.

A federal appeals court in Washington, D.C.,   has rejected U.S. Citizen and Immigration Services’ determination that “inherent knowledge a person gains as a result of his or her upbringing, family and community traditions, and overall assimilation to one’s native culture necessarily falls into the realm of general knowledge” and therefore cannot not considered “specialized knowledge” as required for L-1B, intra-company transfer visa.  In its October 21, 2014 decision, the U.S. Court of Appeals for the District of Columbia Circuit reversed a  district court’s decision granting summary judgment for the government and remanded the case for further proceedings. Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014).   

In 2010, Fogo de Chao applied for an L-1B visa on behalf of Rones Gasparetto, a Brazilian churrasqueiro, a restaurant employee who cooks a variety of meats on skewers resting on a support over charcoal embers or wood, in one Brazilian version of this food preparation technique.  Mr. Gasparetto had been employed as a “Churrasqueiro Chef” in Sao Paulo, Brazil since May 1, 2007, and had worked in the same capacity in another of Fogo de Chao’s Brazilian affiliates from June 2006 through February 2007.  He was able to perform the duties of “Churrasqueiro Chef” as a result of both his training with the company and his rural upbringing participating in the churrasco tradition in southern Brazil.  USCIS concluded that the petition that Mr. Gasparetto’s culinary skills, knowledge of his native regional culture, and “authenticity” gained through his life experiences could not, as a matter of law, constitute “specialized knowledge” of the company’s product.  The district court deferred to USCIS’ interpretation of “specialized knowledge under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C. 2013). 

The appellate court, however, concluded that the USCIS determination, which had been issued through a non-precedential decision by the Administrative Appeals Office, was not entitled to deference.  The court reasoned that nothing in the statute precludes culturally acquired knowledge from being taken into account as “specialized knowledge” for L-1B visa consideration.  Similarly, the court found that established USCIS policy and guidance regarding “specialized knowledge” in no way categorically excludes cultural knowledge from this determination.   This decision could broaden the range of professionals eligible for transferee specialized knowledge visas.

USCIS E-Verify Record Disposal of 10-Year-Old Receipts to Begin January 1, 2015

AUTHOR:  Kevin Lashus.

U.S. Citizenship and Immigration Services has announced that as of January 1, 2015, in accordance with the National Archives and Records Administration records retention and disposal schedule, it will begin permanently disposing E-Verify records that are more than 10 years old, including all activity recorded in an employer’s E-Verify profile.  Employers that have been participating in the program since December 31, 2004, should take measures to archive their data.

The Internet-based E-Verify system allows businesses to determine whether the information contained upon a new hire’s employment verification documents matches the information maintained by the Immigration Service and Social Security Administration.  The employer enters the employee’s information from the federal Form I-9 into E-Verify and submits the information to create a case.

E-Verify compares the information to records available to the U.S. Department of Homeland Security, including:

  • U.S. passport and visa information
  • Immigration and naturalization records
  • State -issued driver’s licenses and identity document information
  • Social Security Administration records.

E-Verify sometimes displays a photo for the employer to compare to that on the employee’s document to ensure the document photo has not been altered.  If the information matches, the case will receive an Employment Authorized result.  If the information does not match, the case will receive a Tentative Non-confirmation (TNC) result.  To shield itself from potential exposure to allegations of continuing to employ and unauthorized foreign worker, the employer must notify the employee of the TNC and monitor the clearance process through final resolution. 

In addition, E-Verify’s Monitoring and Compliance Branch monitors usage of E-Verify to detect, deter, and reduce misuse, abuse, and fraud—essentially, data-mining an employer’s E-Verify feed.  If the government monitoring determines further investigation is warranted, pursuant to a Memorandum of Understanding, E-Verify will refer the employer to Immigration and Customs Enforcement for a worksite I-9 audit—which may result in administrative and criminal sanctions. 

An employer under investigation can claim as an affirmative defense that it successfully received a WORK AUTHORIZED result for a new hire for one who is now identified as UNAUTHORIZED/SUSPECT. Once USCIS has disposed of the E-Verify records, the employer has only its own archives to support its defense.

Employer should consider seeking guidance from counsel on downloading the Historical Records from E-Verify planning on doing so at the end of each calendar year.  USCIS may retain E-Verify records associated with an ongoing investigation, prosecution, or litigation; employers should prepare for that possibility.

DHS Investigation leads to largest worksite enforcement forfeiture in ICE history

AUTHOR:  Kevin Lashus.

Five franchisees and operators of 7-Eleven, Inc. stores located throughout Long Island, New York and Virginia plead guilty to committing wire fraud and concealing and harboring unauthorized foreign national employees, the DHS has announced.  The September 22nd pleas were the result of an investigation that culminated in the June 16, 2013 raids of more than 50 stores throughout the United States.

“[The] nine defendants created a modern-day plantation system, with themselves as overseers, with the immigrant workers as subjects, living in their version of a company town,” U.S. Attorney Loretta Lynch said at a news conference in Brooklyn, New York.

The defendants used identities stolen from U.S. citizens, including the deceased and children, to conceal their scheme and harbored unauthorized workers at houses owned by the defendants.

“These defendants knowingly hired illegal aliens to feed their greed, stole the identities of unsuspecting U.S. citizens, and swindled more than 2.6 million dollars in wages from their enslaved workers,” said James T. Hayes Jr., Special-Agent-In-Charge, Homeland Security Investigations (HSI) New York.  “This case serves notice to employers – that they will be severely punished if they seek to profit on the back of an illegal workforce.”

“Using the 7-Eleven brand, the defendants dispensed wire fraud and identity theft, along with Big Gulps and candy bars.  In our backyards, the defendants not only systematically employed illegal aliens, but concealed their employment by stealing the identities of children and even the dead,” U.S. Attorney Lynch concluded.

 In addition to the forfeiture of the franchises, the defendants agreed to forfeit five houses, valued at over $1.3 million, and to pay $2,621,114.97 in restitution for the back wages owed the workers. 

In a statement, 7-Eleven, Inc. said it has fully cooperated with the investigation and will take aggressive actions to initiate I-9 and wage and hour audits of other franchisees, and will institute identity theft protection measures for all its franchisees’ employees.

Lynch said the workers would be processed through the system, with some who served as whistleblowers remaining in the country until the case is completed.

Colorado Employers Must Use New Employment Affirmation Form Beginning October 1

AUTHOR:  Jessie Feinstein.

All private and public employers in Colorado must complete an employment authorization affidavit for employees hired on or after January 1, 2007.  The affirmation, which must be completed within 20 days of hire, is separate from the federal I-9 rules.  The Colorado Department of Labor and Employment’s (CDLE) new mandatory form must be used starting October 1. 

The form, which must be retained for the term of employment for each employee, requires the employer to:

(1) affirm the employment authorization of the employee, and

(2) make and retain copies of the identity documents that were presented to complete the I-9. 

Failure to complete the affirmation and copy documents cannot be remedied. An employer who, (1) with reckless disregard, fails to submit the required documentation, or who, (2) with reckless disregard, submits false or fraudulent documentation, will be subject to a fine of not more than $5,000 for the first offense, and not more than $25,000 for the second and any subsequent offense. 

The CDLE has been randomly auditing about 30 employers per week, focusing on specific industries and written complaints.  More than 180 employers have been fined through this program. 

For more information on the CDLE verification requirements: website and CDLE Fact Sheet.

The Optional Practical Training Dilemma

AUTHOR:  Jessie Feinstein.

Optional Practical Training (OPT) for F-1 students is intended to provide hands-on practical work experience in the U.S., complementary to the academic program. A foreign student in F status may work for 12 months post-graduation pursuant to OPT. An additional, one-time 17-month extension may be available if the student and employer meet certain qualifications.  After this period, the student must leave the U.S., re-enroll in a new program of study, or change into another status. If the student finds a willing employer-sponsor for future employment, the student can change to H-1B status.

In a Technical Assistance Letter (TAL), the Office of Special Counsel has stated that an employer can disqualify an applicant because of future OPT expiration without running afoul of the Immigration and Nationality Act.  The INA’s anti-discrimination provisions apply only to U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. “Accordingly, F-1 visa holders are not protected from citizenship status discrimination,” the Office of Special Counsel states.   Therefore, an employer who inquires as to whether the candidate requires sponsorship now or in the future is not participating in discriminatory practices.   

However, the TAL notes, this does not protect the employer from claims of national origin discrimination.  Any decision not to hire an individual based upon a future expiration date should be well-documented to protect against any future discrimination claims based on national origin. 

For a copy of the TAL please contact a Jackson Lewis attorney.

Border Agency Designates 14 Ports of Entry for Quicker Processing of Canadian Visa Applicants

AUTHOR:  Nadine Trinh

U.S. Customs and Border Protection (CBP) has announced that first-time Canadian TN and L visa applicants applying for admission to the United States may visit 14 designated ports of entry for optimized processing of their visa applications. Beginning mid-September, the 14 designated ports of entry are:

Pre-flight Clearance:

  1. Lester B. Pearson International Airport (Toronto), Canada
  2. Trudeau International Airport (Quebec), Canada
  3. Vancouver International Airport, Canada
  4. Calgary International Airport, Canada

Land Crossings

  1. Highgate Springs, Vermont
  2. Derby Line, Vermont
  3. Alexandria Bay, New York
  4. Peace Bridge, New York
  5. Rainbow Bridge, New York
  6. Champlain, New York
  7. Detroit/Canada Tunnel, Michigan
  8. Detroit Ambassador Bridge, Michigan
  9. Blaine Peace Arch, Washington
  10. Sweetgrass, Montana

Canadian applicants may continue to visit any port of entry along the Canadian border for TN or L visa processing, but are encouraged to visit a designated port of entry for quicker and more efficient processing of their TN and L visa applications.

OSC Responds to Over-Documentation Question

AUTHOR:  Nicola Prall

What happens when during an internal I-9 Audit, a company discovers it has accepted more documentation than necessary for Form I-9. Should the company retain or destroy the documentation?

This question was recently posed to the U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Immigration Practices (“OSC”). OSC responded by confirming that “we are not aware of any publicly available guidance issued by any agency recommending steps an employer should take if it accepted too many documents during the Form I-9 process.” However, OSC confirms that a violation will depend upon whether the employer “made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.”

Therefore, in the case of an over-zealous employee, there likely is no violation. However, if the documentation occurs (as is sometimes the case) with permanent residents, where all the Forms I-9 for permanent residents include a permanent resident card, driver’s license, and social security card, it may appear that requests for additional documents were made because of an employee’s immigration status. OSC side-stepped any statement on whether an employer should retain or destroy the documentation.

If this issue is discovered during an internal review of Forms I-9, companies should seek the assistance of legal counsel to assess the potential exposure and risk of a charge of discriminatory Form I-9 practices.

TPS Designation for Sudan and South Sudan Extended

AUTHOR:  David S. Jones

The Temporary Protected Status (TPS) designations for Sudan and South Sudan have been extended for 18 months, effective November 3, 2014, through May 2, 2016. The re-registration period will run from September 2, 2014, through November 3, 2014. Employers are reminded that TPS holders who file timely extension of TPS and work authorization are authorized to continue employment while those applications are pending. For details, see http://www.gpo.gov/fdsys/pkg/FR-2014-09-02/pdf/2014-20709.pdf

Immigration Reform Update

AUTHORS:  Michael H. Neifach and Garen E. Dodge.

With comprehensive immigration reform legislation no longer a realistic possibility for the foreseeable future, the focus of advocates for reform has shifted to executive actions the President may take unilaterally to implement immigration policy changes.

The President reportedly  is considering broad use of executive action, potentially granting relief to up to 5 to 6 million undocumented individuals similar to what has been provided under the administrations Deferred Action to Childhood Arrivals program. 

Under DACA, certain individuals who came to the United States unlawfully while under the age of 16 and have remained here since June 15, 2007, are eligible for deferred action for 2 years, renewable by the government.  Approximately 700,000 individuals to date have been granted deferred action under DACA, which allows the individuals to work legally in the United States.

Building off of DACA, the President has directed the Department of Homeland Security to review the administration’s immigration enforcement polices and recommend additional changes, possibly expanding the deferred action and work authorization to family members of U.S. citizens and lawful U.S. residents.  The administration reportedly also is looking at possible changes to current law and regulation that could benefit employers. 

For example, USCIS recently proposed regulations allowing certain spouses of H-1B workers to work in the United States.  Additional options now being discussed include excluding employment based immigrant workers’ spouses from the annual 140,000 cap on employment based visas. 

Any unilateral action the administration may take is likely to be controversial and there has been no final decision what executive action will be taken.  Indications are that the President will make a decision before the mid-term elections this November.

Businesses need to keep alert to potential changes.  Jackson Lewis’ Immigration and Government Relations practice groups are uniquely positioned to advise and advocate at the legislative, regulatory, and judicial level on behalf of employers regarding current requirements and coming changes.

House Republicans Pass Bills to Discontinue DACA, Provide Funding to Address Border Crisis

AUTHOR:  Forrest G. Read IV

House Republicans have passed a bill to suspend Deferred Action for Childhood Arrivals (DACA), the program established by the Obama administration in 2012 that protects from deportation certain undocumented individuals who came to the United States as children and allows individuals to obtain employment authorization documents if certain conditions are met.  House Republicans also passed a bill that would provide funding to address the immigration situation at the United States-Mexico border. 

House Republicans contend DACA is among the causes, if not the chief cause, of the crisis at the border, arguing DACA encourages families to send their children to the United States expecting that they will not be deported and will have an opportunity to remain in the U.S.  The bill would defund DACA and discontinue the issuance of work permits to such workers, eliminating the attraction for children from countries such as El Salvador, Honduras, and Guatemala.  House Democrats opposed the bill, arguing the approximately 600,000 individuals with DACA status and employment authorization documents would be returned to the stigmatized status of undocumented immigrants.  As the crisis on the border has received more attention, the intent and impact of DACA have become more controversial, with Republicans seeking to eliminate the program and Democrats seeking to protect it.          

The chamber also passed legislation providing funding to address the growing border crisis. The measure would appropriate just under $700 million, a dramatically lower figure than that the White House requested, which had sought approximately $3.7 billion to be directed to Immigration and Customs Enforcement, Customs and Border Protection, Department of Justice, the State Department and the Department of Health and Human Services.  House Democrats uniformly opposed their Republican counterparts’ funding bill, arguing that it is insufficient to address the serious humanitarian issues triggered by the border situation.     

Although the twin bills passed before Congress took its August recess have little chance of passing the Democratic-led Senate, they represent a clear message from House Republicans as they left Washington for home to visit with constituents and in advance of what many observers expect will be executive action on immigration before the 2014 midterm elections.  The House Republicans’ emphasis remains on border security and they clearly have no interest in adopting the comprehensive immigration reform bill passed earlier in the year by the Senate and favored by their House Democratic colleagues and President Obama.   

Although there may not be immigration legislation that passes both chambers in 2014, it appears clear that immigration issues will likely not fade from the national view, and will continue to occupy a prominent position among pro- and anti-immigration reform groups, not to mention in news cycles, in the lead-up to midterm elections.