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

Secretary Janet Napolitano has released the U.S. Department of Homeland Security’s Strategic Plan for Fiscal years 2012-2016. The plan, released on February 13, outlines broadly the Department’s missions and goals to align program activity to better serve the public. More importantly, the plan revisits mission performance benchmarks and projects how those benchmarks will change as the Department “successfully” implements its objectives.

Employers should be interested especially in the third “primary” mission of the Department: Enforcing and Administering Our Immigration Laws. The Department emphasizes its commitment to reducing the demand for illegal immigration by eliminating conditions that encourage unauthorized employment. In order to meet that objective, the Department predicts that over the course of the next four fiscal years, it will initiate nearly double the number of criminal prosecutions of employers for criminally hiring unauthorized employees—from 296 this past fiscal year to 478 employers arrested or sanctioned in the current fiscal year (through nearly 600 employers by the end of FY 2016). It will do so by increasing the number of administrative I-9 audits, by further perfecting the intelligence sharing capability of its member bureaus, and by continuing to support the roll-out of E-Verify and IMAGE initiatives that encourage employers to transmit sensitive employee information to government databases. Thus, the risks of faulty compliance have never been greater.

Employers should consult with compliance counsel to review the protocols and to sample I-9s to ensure any compliance failures are quickly remedied. They should not trust to chance that systems they have instituted will work as planned. The best defense to allegations of criminal violations is a robust internal (attorney-supervised) audit. The government credits employers who pro-actively address failures and institute compliance protocols. In other words, an employer need not be perfect to protect against criminal investigation, but needs to know enough to seek assistance.
 

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Co-Author : Michael Neifach

Many multinational companies with global operations use L-1 visas to facilitate the transfer of their executives, managers and specialized knowledge personnel into the U.S. for temporary assignments. In the last couple of years, these companies have experienced extreme backlogs, denials and inconsistent challenges by U.S. Citizenship and Immigration Service and Consular Offices.

The U.S. Chamber of Commerce recently hosted a business community discussion on L-1 legal and policy issues with Director Alejandro Mayorkas, Director of USCIS, Donald Neufeld, Associate Director for USCIS’s Service Center Operations, Robert Silvers, Senior Counselor to the Director, and David Donahue, Assistant Deputy Secretary for Visa Service.

The Chamber noted that in the last few years, L-1B visa denials and processing delays have increased by 200 to 300 percent . These denials and delays have caused tremendous loss of business opportunities for the affected companies due to the inability to timely transfer critical specialists to the U.S. Companies and practitioners know that certain consular offices are more likely than others to deny L-1 petitions. In addition, the U.S. government has begun to take a more restrictive view as to what constitutes specialized knowledge, indicating that if a significant proportion of a company’s personnel possessed specialized knowledge, then none of them could be deemed specialized.
 

During the Chamber meeting, representatives from multinational companies reported that extensive follow-up documentation requests from Consulates or denials of petitions outright have cause them delays of seven to eight months, or more, in bringing essential specialized knowledge employees, particularly those who possess critical technology expertise, to the U.S.  In a much-welcomed statement, Director Mayorkas confirmed that the government agencies recognized the importance of providing clarity to the L-1 specialized knowledge standard and are committed to providing updated policy guidance to the public. In response to a question about denials based upon the number of specialized knowledge employees within a company and an earlier agency interpretation that if everyone is special, no one is special, Director Mayorkas confirmed that during the USCIS’s November 2011 training, field adjudicators and officers were instructed that the number of specialized knowledge employees in a company should not be a basis in determining if an L-1B specialized knowledge petition would be approvable. Director Mayorkas indicated that further guidance on this would be available soon.

Practitioners and employers who rely on intracompany transfers as an important part of overall staffing strategies welcome the USCIS’s willingness to clarify this issue. Facilitating the transfer of workers with needed specialized skills to the United States is consistent with the intent of Congress in enacting the L-1B specialized knowledge regulations and helps American businesses to operate more competitively in the global economy.
 

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Author - Sujata Ajmera

The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization, recently released an analysis of U.S. Citizenship and Immigration Services (USCIS) data on the number of H-1B and L-1 petition denials issued by the Agency in each fiscal year from 2003 to 2011. The results reveal a significant increase in the number of H-1B and L-1 denials beginning in FY2008 and continuous increase through FY2011, with a significant spike in FY2009, during which every visa category had a dramatic increase in denials.

The denial rate for L-1B visa petitions increased from 9% in FY2003 to 27% in FY2011. The denial rate for H-1B visa petitions increased from 12% in FY2003 to 17% in FY2011, peaking at 29% in FY2009. The data also shows that if a company received approval of its visa petition, it likely had to first overcome a Request for Evidence (RFE). In the past, RFEs were issued when USCIS case officers needed clarification or additional information to adjudicate a petition. Based on the statistics, it appears either the majority of employers have abruptly stopped filing complete petitions, or, more likely, USCIS has decided that they require more information than actually set forth in the regulations to adjudicate a case.

Most alarming is the increase in the number of RFEs issued for L-1B and L-1A cases, in particular. RFEs for L-1B cases more than tripled from FY2003 to FY2011, from 16% to 63%. Similarly, RFEs for L-1A cases went from 12% to 51% over the same period. Employers now are statistically guaranteed that one in every two L-1 petitions they file will be issued an RFE.

As there has been no significant change in the regulatory criteria for H-1B and L-1 status approval, this increase in petition denials and RFE issuance is an indication that USCIS adjudicators have changed their internal standards of review to make it more difficult for skilled foreign nationals to obtain work authorization in the United States.

The data also shows that USCIS denies more L-1B petitions for Indian nationals than any other country. Whether this is indicative that the Agency has targeted Indian nationals is unclear; however, employers who seek skilled Indian employees should be prepared for additional scrutiny. L-1 visa issuance declined at U.S. Consulates in India in FY2011, but actually rose overall for the rest of the world.

The NFAP study confirms what many U.S. employers already know: it is now more difficult than ever to hire or transfer critical foreign national employees whose presence is required to ensure continued product development and profitability. Jackson Lewis attorneys have experience in addressing and overcoming RFEs and visa denials on behalf of U.S. employers. We will continue to monitor and report USCIS trends and policy changes.
 

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“Hi, this is Kevin."

“Hi Kevin, it’s Sally at ABC Company. We need your help again. ICE Special Agents came by the worksite again today and delivered a Notice of Inspection for our Forms I-9 and supporting documents. They limited the inspection to the I-9s for active AND separated employees hired after their last inspection, but were sure to mention that they’re taking a look at our old mistakes to see if we’ve learned from the last time we were inspected . . .”

“Sure Sally. You’re not the first of our clients to be revisited by ICE. We’ve got the team in place, and we’re ready to get to work.”

Calls like this one will be increasing for immigration lawyers. The Obama administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to ICE.

Obviously, ICE offices has kept track of employers targeted for re-evaluation. ICE has not discussed any plans for the NOIs, but has confirmed that “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections.” You do not need to have run afoul of the law before to feel ICE’s heat. The Obama administration has reimposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem even for first time infractions.

We expect additional ICE initiatives to continue throughout 2012 (it is an election year). Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for tough enforcement efforts . For now,, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

Read more.
 

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