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Immigration Blog

Temporary Protected Status Extended to Liberia, Sierra Leone, and Guinea

AUTHOR:  Sujata Ajmera.

Temporary Protected Status (TPS) has been extended to Liberia, Sierra Leone, and Guinea for a period of 18 months, according to U.S. Department of Homeland Security’s November 20, 2014, announcement.  The designation, prompted by the ongoing spread of the Ebola Virus Disease in these Western African countries, allows foreign nationals from these countries who are currently in the United States to apply for TPS, work authorization, and travel authorization with U.S. Citizenship and Immigration Services (USCIS).  Requests for authorization to travel to one or more of these countries will not be approved, barring extraordinary circumstances.

TPS is designated to foreign nationals from certain countries due to conditions that temporarily prevent the country’s nationals from returning safely or where the country is unable to handle the return of its nationals adequately.  This status is offered to nationals of the designated country who are already present in the United States or to individuals without nationality who last resided in a designated country.  TPS has been granted to individuals in the past because of ongoing armed conflict, environmental disaster, and outbreak of an epidemic, as is the present case.

The TPS designation comes on the heels of the U.S. State Department’s October 22, 2014, decision requiring all travelers from Liberia, Sierra Leone, and Guinea to enter the U.S. through one of five designated airports and undergo an Ebola Virus Disease screening.  The designated airports are New York’s Kennedy, Newark’s Liberty, Washington’s Dulles, Chicago’s O’Hare, and Atlanta’s Hartsfield-Jackson. Passengers scheduled to pass through any other airport must re-route their flights to ensure entry through one of these designated airports.

The Ebola Virus Disease also has prompted many employers to create standard operating procedures for responding to employee concerns and complaints related to possible exposure to the virus at locations inside and outside of the United States.  Please contact your Jackson Lewis attorney for assistance in developing such protocols or to address your concerns regarding the impact of the Ebola Virus on your workplace.

President Obama to Announce Administrative Immigration Reform

AUTHOR:  Robert Neale.

President Obama announced today that he will address the nation on Thursday evening, November 20, 2014, to announce the executive actions he will be taking on immigration reform. A follow up speech is scheduled for Friday in Las Vegas, Nevada, to provide additional details regarding his plan.

Advocates for immigration reform have recommended a series of actions that the President could take without Congressional approval.  Although specific details are not yet known, supporters of the President’s actions have proposed, among other things, the following:

  1. Relief from deportation to undocumented immigrants who are parents of U.S. citizens or of permanent legal residents. It is not yet clear which parents of citizens or permanent residents would be included.
  2. Reducing the current green card backlogs and overall wait time for both employment- and family-based green card categories by not counting the principal immigrant’s derivatives against the annual visa quota.
  3. Refining guidance for which immigrants should be prosecuted and deported if they are apprehended by authorities.
  4. Strengthening enforcement and security along the Southwest border.
  5. Reallocating more than 200,000 immigrant visa quota numbers that went unused during quota years in the late 1990s and early 2000s.
  6. Extending eligibility for adjustment to permanent resident status to certain individuals who have been granted Temporary Protected Status.

President Obama has stated that his actions are in response to Congress’ failure to reach agreement on immigration reform. The Senate approved a proposal last year, but the House has refused to act. Republicans are opposed to President Obama’s likely unilateral actions, with some congressional members threatening to pursue a government shutdown or other measures if President Obama unilaterally acts on immigration through executive order and not through the legislative process.

Jackson Lewis is closely monitoring these new developments regarding the availability of immigration benefits, and will provide any new information as it arises.

I-9 Compliance Requires Consistency: OCAHO Slaps Enhanced $330K Fine on Employer for Repeating Offense

AUTHOR: Maggie Murphy.

Given the employer’s status as a “Second Offender,” the Office of the Chief Administrative Hearing Officer (OCAHO) ordered that a penalty of $329,895, assessed by ICE agents involved in investigating the company’s I-9 practices, be upheld.  In USA v. Durable, Inc., presiding Judge Helen K. Thomas recognized that the employer had incurred 300 I-9 violations in the current investigation, after paying a $30,000 fine in a settlement with the legacy INS in 1989.  Judge Thomas agreed with the government that the penalty should be enhanced because, she states:

The penalties Durable previously paid clearly did not have the desired deterrent effect, inasmuch as Durable apparently did not alter its behavior to conform to the requirements of the law after it entered the settlement agreement.  Perhaps a higher penalty will have a more motivating effect.

This opinion reflects the current trend of ICE and Homeland Security Investigations (HIS) to seek aggressive civil penalties for I-9 investigations and of the OCAHO to evaluate each case squarely on its merits.  As the government uses the E-Verify database more to gather information and data against employers registered (voluntarily or through state mandate or FAR obligations), I-9 and E-Verify compliance protocols and practices are critical for employers.

Organizations that have been the subject of INS, DHS or ICE investigations are under greater scrutiny. Review your current protocols and make sure you review I-9 and E-Verify compliance on a semi-annual basis. Jackson Lewis provides training, webinars, and a comprehensive suite of services to help employers install and maintain I-9 and E-Verify compliance.

Our next free webinar will discuss Immigration Compliance – A Year In Review.  If you are interested in attending this webinar or in learning more about our compliance services, contact one of our Immigration attorneys.

Immigration Reform After Elections?

AUTHOR:  Sean Hanagan.

“It’s time for us to take care of business,” President Barack Obama announced to the press after the elections last week. The administration may take executive action on immigration soon. With most of those races now decided, the President sounded a note of impatience: “I can’t wait another two years,” he said in the briefing. A “broad package of changes” to immigration policy reportedly is under discussion within the White House and at DHS and the President may make his announcement by the end of November.

Changes could include a legalization program for farm workers along the lines of the “AgJOBS” bill, which was considered in Congress but shelved because of concerns over  “amnesty” being offered to the  more than three million unauthorized agricultural workers estimated to be in the United States. A less controversial group of potential beneficiaries may  be unauthorized aliens who are married to U.S. citizens or legal permanent residents. The third group under discussion is parents of the “Dreamer” children, who currently benefit from DACA (Deferred Action for Childhood Arrivals) relief implemented by President Obama in 2012.  Speculation surrounding this last group is fueled by an October DHS draft solicitation seeking a vendor to produce millions of government identification cards.

House Speaker John Boehner criticized the President’s talk of unilateral action, stating, “[The President]‘s going to burn himself,” and indicating “no chance” for comprehensive immigration reform this term unless the President engages with Republicans on bi-partisan legislation. Whether political posturing or genuine cooperation and open debate will determine the fate of immigration reform efforts remains to be seen, but employers should anticipate change that may dramatically affect the pool of legal workers.

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.