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.
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.
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:
- Lester B. Pearson International Airport (Toronto), Canada
- Trudeau International Airport (Quebec), Canada
- Vancouver International Airport, Canada
- Calgary International Airport, Canada
- Highgate Springs, Vermont
- Derby Line, Vermont
- Alexandria Bay, New York
- Peace Bridge, New York
- Rainbow Bridge, New York
- Champlain, New York
- Detroit/Canada Tunnel, Michigan
- Detroit Ambassador Bridge, Michigan
- Blaine Peace Arch, Washington
- 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.
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.
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
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.
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.
AUTHOR: Anna L. Susarina.
A path to state citizenship for non-citizen New Yorkers, including undocumented residents, is under consideration by the New York legislature. “The New York Is Home Act” was introduced by State Senator Gustavo Rivera in the Senate (S7879) and Assembly Member Karim Camara in the Assembly (A10129).
If passed, the bill would grant state citizenship to persons who: (1) can prove identity; (2) have lived in New York for three years; (3) have paid state taxes for three years; (4) commit to abide by New York laws and uphold the State Constitution; and (5) agree to serve on New York juries and pay state taxes.
Qualified non-citizens would receive such benefits as drivers’ and professional licenses, financial aid, health care, the right to vote, the right to run for office, and protection against racial discrimination. A summary on the bill can be viewed at http://open.nysenate.gov/legislation/bill/S7879-2013.
If enacted, approximately 2.7 million non-citizens will be provided a wide range of civic and economic benefits by the state. The bill also may motivate other states with large undocumented populations to adopt similar legislation. According to Senator Rivera, California and Texas could follow New York’s example. With the gridlock in the U.S. Congress when it comes to federal immigration reform, states appear to be stepping up. Two recent examples of pro-immigrant state actions are the right to Florida in-state tuition (“The DREAM Act” signed into law by Republican Governor Richard Scott on June 9, 2014) and the right to practice law in California (see In re Sergio C. Garcia, the unanimous decision of the California Supreme Court of January 2, 2014).
While supporters of the New York bill assert that the notion of state citizenship is consistent with the nature of dual-sovereignty and U.S. Supreme Court precedents, even if passed, the law would not protect undocumented workers from federal laws prohibiting unauthorized employment. In addition, employers would still have to comply with the I-9 regulations requiring all workers to have proper employment authorization documents. With that in mind, New York may be hoping to stimulate enough support from others to push Congress to re-focus on federal immigration reform.
Author: Amy Peck.
The U.S. Citizenship and Immigration Services (USCIS), which has been sending investigators from its Office of Fraud Detection and National Security (FDNS) to conduct site visits at the offices of H-1B petitioners, has expanded its investigations to include petitions for L-1 non-immigrant visas. The L-1 visa enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.
While the H-1B site visits typically involve a review of the premises, an interview with the employee and the manager, and some documentation review, recent reported L-1 verifications involve only an e-mail from the FDNS to the employer’s contact listed on the petition, asking extensive questions about the petitioning organization and the beneficiary. Some of these questions were not likely to have been addressed in the initial petition. For reasons that are presently unclear, attorneys who filed the case and entered Form G-28 Attorney Representation are not being notified by FDNS of these e-mails.
The FDNS e-mails seek to confirm the authority of the person signing the petition and ask a series of questions about the overseas company, such as the name of the foreign company, how many locations exist overseas, the number of overseas employees, the location of headquarters, and organizational charts of the foreign company as it relates to the U.S. company. Extensive questions are asked about the U.S. company, including the locations and numbers of employees in non-immigrant status and employees sponsored for permanent residency. Another series of questions asks about the beneficiary’s qualifications and the duties abroad and in the U.S.
L-1 petitioners already provide extensive documentation to USCIS to receive an approval. The FDNS e-mail probes further into a petition that has already been approved and asks questions that may not have been addressed in the petition. FDNS is not an adjudicatory body, so it is unclear what purpose the additional information serves beyond the stated purpose of verifying the authenticity of the petition. The verification questions are sure to complicate an already complicated L-1 process. Employers that receive an FDNS e-mail should consult with appropriate counsel.
AUTHOR: Raazia K. Hall.
Approximately 57,500 unaccompanied minors have crossed the border illegally since October. President Barack Obama has requested $3.7 billion to care for them, speed up deportation proceedings and attempt to deter illegal immigration. Senate Democrats proposed a $2.7 billion package, but the House Republicans offered less than $1 billion on July 25, instead of the $1.5 billion that had been expected. On July 29, House Republicans announced the funding has been pared down even further to a $659 million package. The large gap between the two Houses will not only be significant to state, federal and other government agencies, but also for future immigration policies.