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

Guest Blog by Scott Blaney

The Ninth Circuit Court of Appeals has dealt a blow to Arizona’s controversial Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) on April 11, affirming a lower court’s decision to block key portions of the immigration law from taking effect. The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The U.S. Department of Justice challenged S.B. 1070 in federal district court in Phoenix, arguing that the authority of the federal government to regulate immigration preempted Arizona’s attempt at curbing illegal immigration.

Of the Act’s mandates aimed at deterring the unlawful entry and presence of illegal immigrants in Arizona, a federal district court in Phoenix blocked four of the most controversial as unconstitutional: (1) the portion of the law that requires an officer to attempt to determine the immigration status of a person stopped, detained or arrested upon reasonable suspicion of unlawful presence; (2) the portion that makes failure to apply for or carry alien registration documents a criminal act; (3) the portion that allows a warrantless arrest of a person where there is probable cause to believe the individual committed an offense that makes him or her removable from the U.S.; and (4) the portion that makes application for or performance of work by illegal immigrants a criminal act. The Ninth Circuit agreed with the lower court.

Other portions of the law, however, have been permitted to stand, including: (1) a mandate that local law enforcement officers enforce federal immigration laws; (2) the portion that makes the transport or harboring of an illegal immigrant a criminal act; and (3) the portion that makes the picking up of a day laborer in a roadway a criminal act if it impedes traffic.

Proponents of the law, including Arizona Governor Jan Brewer and state Attorney General Tom Horne, have vowed to appeal the ruling.
 

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The Social Security Administration (SSA) has resumed notifying employers of social security number mismatches of employees. The No-Match or “Request for Employer Information” letter states that the information reported on an individual’s W-2 or W-2c form do not match the Agency’s records. On receiving a No-Match letter, the SSA requests the employer do the following:

• Compare the SSA information with the individual’s employment records.

• If the records match, ask the employee to check the name and Social Security number on their Social Security card.

• If the card does not show the employee’s correct name or Social Security number, or if a name change or a correction is necessary, instruct the employee to contact a Social Security Administration office to resolve the discrepancy.

• Provide written responses to several questions about the individual in question and return the completed form to the Agency (separately from any Form W-2c correction filing).

The SSA cautions the employer that the No-Match letter alone should not the basis for taking adverse action against an employee. A mismatch can be for many reasons, including typographical errors, incomplete or blank names reported, name changes, or incomplete or blank social security numbers reported. In the past, about 10 percent of all W-2s initially received by the Agency have some sort of a name-number mismatch.

Employers who receive a No-Match letter should contact legal counsel to determine whether any action is necessary. Each case is different and must be examined and analyzed individually.
 

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Written by Nicola A. Prall

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The House Subcommittee on Immigration Policy and Enforcement has conducted a number of hearings in 2011 questioning the value of all forms of immigration. On April 5th, it held a hearing on diversity visas, a program which provides 55,000 green cards annually by lottery to persons from countries that do not currently send many immigrants to the United States. The diversity visa is a relatively small program designed to increase the diversity of immigrants entering the country. One prime example of a diversity visa winner is famed American Major League of Soccer star Freddy Adu.

Last week, the Subcommittee heard arguments regarding placing additional restrictions on the H-1B visa program. The H-1B visa program is an essential immigration category used by U.S. employers to bring foreign, professional-level talent to the U.S. for key positions. While it is used a great deal by the IT industry, it is also used for many other specialty positions that require at least a baccalaureate degree in a specific field. H-1B petitions are sought for scientists, financial analysts, pharmacists, researchers, automotive designers, and engineers, among others.

Jackson Lewis continues to keep a sharp watch on congressional efforts to limit legal immigration paths that are essential to our economy.
 

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To avoid potential conflict, the U.S. Department of Labor (DOL) and the Department of Homeland Security (DHS) have entered into a Memorandum of Understanding (MOU) concerning their respective civil worksite enforcement activities. Under the March 31, 2011, MOU, U.S. Immigration and Customs Enforcement agreed that, unless determined necessary by the Director of ICE, Secretary of Homeland Security or an Officer of the DOL, it would refrain from engaging in civil worksite enforcement at a worksite if there is an existing DOL investigation of a labor dispute. The MOU specifically states that ICE and DOL agree to create a means by which they will exchange information from their respective investigations. 

The DOL’s enforcement activities are to ensure proper wages and working conditions for all workers regardless of their immigration status. DHS enforces immigration laws to ensure that all workers are authorized to work. 

It is unclear how the MOU will be implemented by a prospective joint Worksite Enforcement Coordination Committee. What is clear is that there will be information sharing between the DOL and DHS/ICE. While they generally will not conduct joint or coordinated civil worksite enforcement, ICE is not restricted from investigating after a DOL investigation is completed.

The U.S. government has become increasingly active in enforcing immigration compliance against corporate employers in recent years. Thus, it is critical for employers to ensure their policies and practices are in compliance with laws and regulations enforced by the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), the Occupational Safety and Health Administration (OSHA), and ICE.
 

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It is H-1B season again. The United States Citizenship and Immigration Services officially announced today that they are accepting H-1B applications for FY2012. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. Similar to last year, we do not expect the H-1B quota to be fully utilized until late 2011. However, employers should start looking to initiate cases for employees who might be subject to the quota in order to assure themselves a visa before the cap hits.
 

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