Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

At least 12,000 additional numbers will be available for EB-2 (employment-based, second preference) immigrant visa because of a dramatic reduction in the use of EB-1 (employment-based, first preference) immigrant visa, the Chief of Immigrant Visa Control and Reporting Division, U.S. Department of State, Charlie Oppenheim, has announced. He said U.S. Citizenship and Immigration Services “ha[s] seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”
According to Mr. Oppenheim, the fall-off in demand for EB-1 numbers began in October 2010. To find out current processing dates, check the visa bulletin website.
 

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Becoming the latest state to mandate E-Verify usage, Governor Bob McDonnell announced that Virginia state government agencies will be required to utilize the online system for new hires effective July 1, 2011, in order to determine the employment eligibility of new hires.

Virginia had already passed a law in 2010 (H.B. 737) requiring state executive branch agencies to use E-Verify starting in December 1, 2012, and amending a state code provision to make it a misdemeanor for any Virginia employer to knowingly hire or employ persons not eligible to work in the United States. Federal laws already prohibit the knowing hire or employment of such individuals. Governor McDonnell’s latest move will replace state agencies’ current procedures on employment verification and accelerate the E-Verify requirement from the initial date of December 1, 2012, to July 1, 2011.

A spokesperson for the Governor’s office stated that the acceleration of the E-Verify requirement was due in part to recent upgrades in the E-Verify system, including the launch of the E-Verify Self-Check tool, which went live March 21. Provided by the Department of Homeland Security, this new web tool is available to workers for the purposes of checking the accuracy of their information in the relevant databases (Social Security Administration and DHS). The initial release is available only to individuals with addresses in Arizona, Colorado, Idaho, Mississippi, Virginia and the District of Columbia. The Self-Check tool asks certain questions aimed to verify the identity of the individual. Once verified, the individual can then confirm whether or not the relevant databases accurately reflect his or her appropriate work authorization status. If the self-check results in a possible mismatch with either the SSA or DHS database, the individual would have an opportunity to correct this information prior to going through the same verification procedure while in the process of joining a new company. As the program is quite new, it is too early to judge whether it is effective. Stay tuned for more updates on this and other E-Verify developments.
 

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E-Verify: the Good, the Bad, and the Unresolved

The United States Citizenship and Immigration Services (USCIS) has recently released an independent report of the E-Verify system, highlighting the successes, failures, and remaining challenges that face employers face today.

The Good

USCIS reduced the Tentative Nonconfirmations (TNCs or mismatches) from 8% between June 2004 and March 2007 to almost 2.6% in fiscal year 2009. TNCs result when the information from an employee’s Form I-9 does not match government records and E-Verify indicates the case may require additional action.

Additionally, USCIS data indicates that about 97.4% of almost 8.2 million newly hired employees were immediately confirmed as work authorized by E-Verify during fiscal year 2009, compared to 92% during June 2004 through March 2007.

Conversely, about 2.6% of newly hired employees, or over 211,000, received either a Social Security Administration or USCIS TNC, including about 0.3% who were determined to be work eligible after they contested a TNC, and about 2.3% who received a Final Nonconfirmation (FNC) because their employment eligibility status remained unresolved.

The Bad

Despite the reduction of TNCs overall, it appears that erroneous information is still a way of life. Employee information, like the E-Verify system itself, is constantly being updated and changed. Also, it is not uncommon to have misspellings or other name variations for first or last names. In these instances, TNCs may result because the employer is uncertain how exactly to enter the name into the system. According to USCIS, of the TNCs resulting from name mismatches in fiscal year 2009, approximately 76% were for citizens and 24% were for noncitizens. USCIS has included information on its website to help employers enter various name combinations to reduce some of these TNCs.

The Unresolved

Over the past two years, USCIS has more than doubled the number of monitoring and compliance staff overseeing employers’ use of E-Verify. Apparently, however, the staff still lacks the appropriate technology to discern instances of suspected employer misuse easily. According to senior E-Verify program officials, such capabilities will be addressed by fiscal year 2012, through an estimated $6 million advanced data system. USCIS expects this system, known as the Data Analysis System, to automate about 80% of the Monitoring and Compliance Branch’s workload.

It looks like E-Verify will be with us for the foreseeable future. The fiscal year 2010 DHS Appropriations Act reauthorized the E-Verify program through September 30, 2012, and provided USCIS with $137 million for program operations. Employers must prepare themselves by implementing appropriate policies, procedures, and technology to address the potential pitfalls of an erroneous TNC or FNC, as well as other challenges, such as identity theft and discrimination.
 

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Guest Blog by Scott Blaney

The tide of state immigration laws in Arizona appears to have ebbed. On March 17, 2011, the Arizona State Senate voted down five controversial bills aimed at controlling illegal immigration in the state. The Senate’s rejection of the bills came just two days after 50 Chief Executive Officers in Arizona sent a joint letter to Senate President Russell Pearce urging the Arizona Legislature to back off from efforts to regulate immigration at the state level.

The latest bills follow the 2007 Legal Arizona Workers Act (“LAWA”) and the 2010 Senate Bill 1070, both of which put Arizona at the forefront of states seeking to regulate immigration within their borders. The LAWA was one of the first state-level bills to mandate that businesses use the federal E-Verify system to verify work eligibility of all new hires on or after January 1, 2008. Challenges to the law have been unsuccessful to date and the law is currently under consideration by the U.S. Supreme Court.

A federal court blocked the most controversial parts of Arizona’s other high-profile immigration law, the “Support Our Law Enforcement and Safe Neighborhoods Act,” or SB 1070, such as its mandate that police officers check a person’s immigration status while enforcing other laws. See “Arizona Governor Signs Controversial Immigration Bill Into Law.” Passions run high on both sides of the SB 1070 debate and SB 1070 may find its way to the U.S. Supreme Court, as well.

The five bills defeated in March sought to regulate immigration in a number of ways. For example, SB 1405 would have required hospitals to inquire into an individual’s immigration status and notify law enforcement if an immigration violation was suspected. SB 1407 would have required school districts to collect data on the number of illegal immigrant students attending classes. SB 1611 covered a number of different areas, such as access to universities and colleges, and would have made it a state crime for illegal immigrants to drive a vehicle in Arizona.

The effects the rejected bills might have had on the workplace are not as direct as under the LAWA, but the underlying message is clear. Arizona and similar states will continue to seek ways to curtail illegal immigration. Employers must remain both informed of their obligations and vigilant in their compliance efforts.
 

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Immigration-Related Relief Individuals Stranded in U.S. Due to Earthquake and Tsunami Devastation

The U.S. Citizenship and Immigration Service has announced that relief will be provided to certain Japanese and Other Nationals from the Pacific who are stranded in the United States due to the earthquake and tsunami devastation that occurred in March. Individuals who have exceeded or are about to exceed the authorized period of stay in the U.S. will be provided up to an additional 30 days to depart, USCIS said in a March 11, 2011, notice.

Visa Waiver Program Travelers

Visitors at an airport who are traveling under the Visa Waiver Program should contact the U.S. Customs and Border Protection.  All visitors traveling under the Visa Waiver Program who are not at an airport should contact a local U.S. Citizenship and Immigration Services office. 

Non-Immigrant Visa Travelers

Visitors traveling under a nonimmigrant visa should also visit a local U.S. Citizenship and Immigration Services office. 

Documentation

The following documents are necessary: your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record.

Additional Immigration Relief Options

The USCIS website’s Special Situations  page outlines additional relief that may be available to individuals from countries impacted by natural catastrophes that affect their  stays in the United States.  The following options may be available, upon request, to those affected by natural catastrophes and other extreme situations:

• Extensions & Changes of Status

The USCIS says, “We recognize that when affected by a disaster you may, through no fault of your own, fall out of status. When applying for an extension or change in status due to a disaster, we may consider your request if you show how it is directly connected to the disaster.”

• Fee Waiver

A fee waiver may be obtained from the USCIS.  It provides, “If you are unable to pay the fee for a USCIS service or benefit, you may request that your fee be waived for certain forms by filing a Request for Fee Waiver, Form I-912 (or a written request).”

• Employment Authorization

Students may obtain employment.  The USCIS says, “As an academic student, you may need to work off-campus if a disaster has affected your ability to support yourself. The disaster may occur in the United States and prevent you from working on-campus or the disaster may occur overseas and affect your economic support. If you can demonstrate that you are from an affected country or region and you have been recommended for such employment by the Designated School Official (DSO), you may be eligible to receive employment authorization when filing the I-765, Application for Employment Authorization.”

• Document Replacement

The USCIS says, “If you have lost your USCIS-issued documents through no fault of your own, you may show your need for replacing the documents.”

Additional information concerning USCIS humanitarian programs is available at www.uscis.gov or by calling the National Customer Service Center at (800) 375-5283.

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OCAHO Reduces Fines Sought by ICE after I-9 Audit

Author: Nicola Ai Ling Prall, Esquire

With news of record-breaking immigration enforcement results and the new Employment Compliance Inspection Center, pressure on employers regarding Form I-9 compliance may seem unrelenting. However, a recently published decision by the Office of the Chief Administrative Hearing Officer appears to give employers greater negotiating power, a glimmer of good news. 

The Office of the Chief Administrative Hearing Officer has jurisdiction over cases involving allegations of knowingly hiring, recruiting or referring for a fee or continued employment of unauthorized aliens, and failure to comply with employment verification requirement (completion of Form I-9), in violation of section 274A of the INA (Immigration and Nationality Act). If an investigation by ICE (Immigration and Customs Enforcement) results in a finding of a violation of section 274A, ICE may issue a Notice of Intent to Fine (NIF) to the employer. The NIF details the violations and the fines for those violations. The employer must either pay the fine or request a hearing. 

 USA v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, arose from an ICE inspection conducted in early 2009 on Snack Attack Deli, a Subway franchisee located in Fayetteville, North Carolina. ICE alleged that Snack Attack had committed 108 violations of section 274A. In Count 1, the agency alleged that Snack Attack hired 11 named individuals from 2006 through February 2009 and failed to ensure that those individuals properly completed section 1 of form I-9 or failed itself to properly complete section 2 or section 3 of the form. Count II alleged that Snack Attack hired 97 named individuals between 2006 and February 2009 for whom it failed to prepare forms I-9 at all. 

ICE sought $1,028.50 for each violation, a total fine of $111,078.00. These fines were close to the maximum that ICE could have assessed under the law. Furthermore, a fine of that size would have crippled Snack Attack’s business and likely lead to the loss of jobs for some of its employees. None of the violations involved allegations of knowingly hiring or employing unauthorized aliens. The entire fine was based on Snack Attack’s alleged failure to comply with employment verification requirements by improperly completing or failing to complete Form I-9.

While the administrative law judge (ALJ) granted the agency’s motion for summary judgment as to liability, the ALJ found the fines were disproportionate to the size of the business and that ICE did not properly consider the fact that Snack Attack had no unauthorized workers and no previous violations. Furthermore, the ALJ took into consideration non-statutory factors “such as the depressed economy and the difficulty any displaced employee would have in finding other work.” Therefore, instead of $1,028.50 per violation, the ALJ reduced the fine to $300 for each violation of Count 1 and $250 for each violation of Count II, a total fine of $27,150.00.

This decision is useful for employers facing potential fines from ICE investigations – especially as economic depression and high unemployment continue.

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The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) office has told 1,000 employers across the country the agency will audit their hiring records to determine compliance with employment eligibility verification laws. These Notices of Inspection (NOIs) often request not only I-9 documentation, but payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information. All documentation normally must be produced within three business days of the employer’s receiving the Notice.

ICE takes the position that such inspections determine whether or not businesses are violating U.S. employment laws by hiring illegal workers and will discourage such hiring practices in the future. According to a statement issue by ICE, the audits are not aimed a particular targets, but “touch on employers of all sizes and in every stated in the nation – no one industry is being targeted nor is any one industry immune from scrutiny.” The agency has not released the names and locations of the businesses targeted in this round of audits. ICE has acknowledged that the 1,000 businesses receiving NOIs were selected by local Special Agents in Charge (SAC) offices.

This latest effort reflects ICE’s focus on increasing I-9 audits as part of a worksite enforcement strategy emphasizing criminal prosecution of employers who knowingly hire individuals without authorization to work in the U.S. In fiscal year 2010, ICE conducted 2,196 I-9 audits (compared with 1,444 in fiscal year 2009), which included at least two major I-9 audit initiatives: one in July 2009 targeting 654 businesses and another in November 2009 targeting 1,000 companies associated with critical infrastructure. The I-9 audit initiative has the support of Department of Homeland Security Secretary Janet Napolitano.

If you receive a Notice of Inspection, immediately contact your counsel. The window for response is short, but, in some cases, experienced practitioners may be able to assist in obtaining an extension of the document production period. It is critical that employers review thoroughly the documents gathered in response to the Notice, that it be well-organized and presented in the best light possible.

Employers who have not received a Notice this time around should take the opportunity to review and audit their records internally. Compliance efforts now will help avert potential fines that can range from $110 - $16,000 per violation, depending on the offense. For more information on how the Global Immigration Practice Group can assist you, see our I-9 Compliance Brochure.
 

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