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

“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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Speaking before the American public (and Snow White, the Seven Dwarfs, and Mickey Mouse at Disney World), President Barrack Obama announced an expansion of the Global Entry program, including the easing of B1/B2 tourist processing times at consular posts around the globe, among other things.

Global Entry is a U.S. Customs and Border Protection program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. The program is intended for frequent international travelers—mainly executives and managers for multinational corporations. Those approved for the program enjoy a streamlined admission process at U.S. airports after international travel into the United States. There is no minimum number of trips to qualify for the program.

By executive order, the President ordered the Secretaries of State and Department of Homeland Security to submit jointly a report describing the progress of achieving the goal of expanding Global Entry. The initiative seeks to ensure that the country remains secure while increasing travel and easing transactions costs (e.g., time during inspection) into the United States. The Jackson Lewis Global Immigration Group anticipates that the report will request finalization of regulation ending the current pilot program, making it permanent for additional U.S. international airports, and reducing average wait times at primary inspection to fewer than five minutes.

Multinational employers should contact their counsel to discuss how they may take advantage of the program for their frequent flyers—executives, management, and highly-skilled labor.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Co-Author: Maggie Murphy

The DOL Administrative Review Board has decided that employers are responsible for paying wages to H-1B foreign nationals who—but for a delay in the Social Security Account enumeration and card issuance process—would be actively employed. The same rule likely will be applied to other nonimmigrant workers who experience delays in Social Security number processing.

The Board held the employer must pay the H-1B worker for her nonproductive activity during the time she was awaiting the delivery of her Social Security Card. Under 20 C.F.R. § 655.731(c)(7)(i), if the H-1B nonimmigrant is not performing work due to the employer’s requirement that she obtain a Social Security Card before commencing employment with the employer, the employer must pay the employee at the required wage for the occupation listed on the Labor Condition Application filed with the DOL. USDOL & Wirth v. University of Miami Sch. of Med., ARB Case No. 10-090, 10-093, ALJ Case No. 2009-LCA-026 (Dec. 20, 2011).

A Social Security Number is not required for employment verification (I-9) purposes, but many employers require it for payroll processing. H-1B employees are authorized to work upon lawful admission to the United States. Accordingly, to the extent that an employer requires a Social Security Number as part of payroll processing, it must be prepared to pay the employee if it elects to delay employment during the SSA enumeration process.

The DOL likely will apply this rule to other nonimmigrant categories, including the L-1, H-3, E-3, and O-1. Therefore, employers should consider practices that will allow these authorized workers to start employment while waiting for Social Security enumeration. Such practices include setting up a temporary payroll profile with a “dummy” number and updating the profile once the number is issued.

An employer that participates in E-Verify must verify its employees’ Social Security Numbers through the free federal program. Thus, such an employer needs the employee Social Security Numbers and should set a projected start date that allows enough time for Social Security processing.

Whatever the case, employers must now be mindful of payment responsibilities for foreign nationals sponsored to work for the employer in the U.S. Once the approved start date hits, so does the wage/payment requirement, requiring that employers who insist on Social Security Numbers from all employees take a more active role in tracking and advising employees how and when they should apply.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Author : Sujata Ajmera

The American Enterprise Institute (AEI) and The Partnership For A New American Economy have released a study that found that immigrants boost employment for U.S. natives. The purpose and goal of the study, by Madeline Zavodny and entitled “Immigration and American Jobs,” was to explore the effect foreign-born employees have on the overall U.S. job market and to identify ways in which immigration policy and reform can affect innovation and job growth in the United States. Using data from the U.S. Census Bureau and other sources, the study concludes that immigration policy can and should be a significant component of America’s economic recovery.

The study found that immigrants with advanced degrees, specifically, in science, technology, engineering, and mathematics (STEM), boost employment for U.S. natives. In fact, between 2000 and 2007, employment of an additional 100 foreign-born workers in STEM fields with advanced degrees from U.S. universities was associated with an increase of 262 jobs for U.S. natives.

Additionally, according to the study, temporary foreign workers, both skilled and less skilled, also boosted U.S. employment over the same period. Adding 100 H-1B skilled workers to the U.S. workforce resulted in an additional 183 jobs among U.S. natives. Even more notable was that adding 100 H-2B (less-skilled) workers to the overall workforce resulted in an additional 464 jobs for U.S. natives; an impressive statistic that seems to counter the mainstream perception that less-skilled immigrant workers have a negative impact on the U.S. job market and “steal” jobs from U.S. workers.

To illustrate this in a real-world context, the study provides the following example: If an employer is able to hire more foreign-born roofers, American contractor can ultimately build more houses and hire more U.S. workers. This can include U.S. workers in both skilled and less-skilled positions, such as workers for the “front office” and “foremen” to supervise workers.

The study found no evidence that foreign-born workers, in the aggregate, hurt U.S. employment. The empirical data demonstrated that immigration policy actually was a growth factor for the U.S. economy. Therefore, the study suggests, policy reform should be a significant component of America’s economic recovery.

While the most recent bi-partisan federal legislative effort to enact immigration policy reform appears to be stalled in committee, studies like this may yet restart the movement for comprehensive reform by correcting perceptions and identifying the positive benefits the right legislation can have on the U.S. job market.

Jackson Lewis will continue to monitor both state and federal legislative activity and will keep you updated on policy changes that may impact employers and their foreign national workers.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Supreme Court has agreed to hear the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). Last year, the DOJ filed a lawsuit challenging several of the Act’s provisions on federal preemption grounds, arguing the federal government has exclusive authority to address immigrations issues and policy. A federal district court in Phoenix blocked enforcement of the Act’s most controversial provisions days before they were scheduled to go into effect. On April 11, the Ninth Circuit Court of Appeals sided with the DOJ, affirming the lower court’s decision.

The case could be heard by the Supreme Court as early as April of 2012. Only eight of the justices will hear the case, Justice Elena Kagan recused herself because she was the Solicitor General involved with the Obama Administration’s initial legal opposition to S.B. 1070. Therefore, if the Court splits 4-4 on the legal challenge, the provisions will not take effect. Such a the decision, however, will not settle the larger constitutional issues at stake in the case. Since the Arizona statute was enacted, at least four other states (Georgia, Alabama, Utah, and South Carolina) have enacted similar legislation, which are currently facing challenges in the lower courts.

This will be the second case challenging an Arizona immigration statute to go up to the Supreme Court in as many years. In May 2011, the U.S. Supreme Court, upholding the statute, rejected arguments that Arizona’s Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program. In the months since the Supreme Court’s decision, there has been an increase in the number of LAWA investigations by law enforcement officials. That trend is expected to continue.

We will continue to monitor these legal developments. Jackson Lewis attorneys are available to answer any questions concerning compliance with the growing number of state immigration statutes.

 

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Employers navigating the I-9 employment eligibility verification process for new hires are confronted with a gauntlet of confusing rules, standards, and exceptions to the rules that some have opined are deliberately designed to make the innocuous looking one-page form a magnet for errors. Such cynics cite the year-over-year increases in civil fines being levied by ICE on employers through the continuing national workplace audit campaign the agency is prosecuting as proof of a fatally flawed system.

 

While the social security number is an optional field on the form according to the latest M-274 Handbook for Employers, the forms will be considered deficient and employers may be subject to fines based on a variety of issues which may appear to be “harmless error” from a common sense perspective, including among others: missing date, signature on the wrong line, notation to “see attached” copies of identification, correct ID data listed in under the wrong list, etc. Employers who have been through the experience of an I-9 audit have become sensitive to the precision required in completing the forms fully, and ICE’s audit and public relations campaigns have conditioned employers to err on the side of completeness in this arena for fear of being heavily fined.

Unfortunately, rules governing I-9 form practice and fines do not focus exclusively on the issue of incompleteness. Employers who fail to walk the legal tightrope of “just enough, but not too much” risk incurring the wrath of the Department of Justice’s Civil Rights Division Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The DOJ has announced that a public employer has been sued for alleged Immigration–Related Employment Discrimination for too zealously checking the work authorization of foreign employees. The employer allegedly discriminated by dictating what documents a foreign employee must present at hire, contrary to the I-9 rule which mandates that the employee be given a choice of what to present. Similarly, lawful permanent residents were allegedly required to bring in updated work authorization documents when their current “green card” documents expired or they would risk termination, contrary to I-9 work authorization re-verification rules.

The bottom line for employers is that in their management of I-9 employment eligibility verification, keeping the “Goldilocks principle” in mind and treating all employees the same regardless of their citizenship or national origin is key to avoiding liability with either ICE on the one hand, or OSC on the other hand.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Labor’s Employment and Training Administration has issued a final rule delaying the effective date of a new H-2B wage calculation regulation.

Throughout 2011, the DOL and the Small Business Association (among other interested groups) have been at odds over the proposed change to the way prevailing wages are calculated for H-2B workers.

Rather than use the traditional wage calculation (from a market survey), the proposal calls for employers to pay H-2B (and U.S. workers recruited in connection with a temporary labor certification application) a “wage that meets or exceeds the highest of the following: the prevailing (market) wage, the federal minimum wage, the state minimum wage or the local minimum wage.”

Thus, as successfully argued by challengers of the proposed rule, DOL would be artificially inflating the prevailing wage assessments by relying upon the federal minimum wage (which is usually higher) for most temporary jobs. The determinations being made by DOL at the end of this year have been onerously high—such that the H-2B program was no longer economically viable.

Most employers would prefer to rely upon the market wage rather than the wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment,

Mounting political pressure from the agricultural, hospitality, travel, and landscape-maintenance industries, among others, has prompted President Barack Obama to include a prohibition to the Government’s provision of funding to the DOL to administer the proposed rule in the continuing appropriation resolution.

Bottom line: it appears that the business community was able to sway the White House to help prevent the DOL from effectively shutting down the H-2B program. At the DOL’s artificially inflated wage rates, an employer would be hard pressed to find a way to make the program work. When competitors are able to pay the lower market wage for employees, it makes no sense for an employer to apply for an H-2B certification, at a much higher wage.

For now, the H-2B guestworker program is still viable for employers looking to fill peakload or seasonal positions with foreign workers. But it’s only a matter of time before DOL takes another crack at shutting-down the H-2B process.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act) has released a Fact Patterns Flyer.

The flyer provides examples of recent OSC prosecutions that resulted in employer-paid settlements to the Department of Justice for what the agency describes as common immigration-status-based discriminatory conduct by businesses.

Presumably, the flyer was prepared to educate employers about the risks associated with faulty Form I-9-related compliance practices and provide employees with a list of conduct that may be the basis of a complaint and agency investigation. The list includes the following:

• When an employer demands specific documents from a new hire;
• When an employer asks certain employees for more documents than are necessary to complete the Form I-9;
• When an employer rejects work authorization documents from non-U.S. citizens, but accepts the same documents from U.S. citizens;
• When an employer demands that lawful permanent residents present new “green cards” after the original document presented expires, but does not demand the same of U.S. citizens;
• When an employer refuses to hire workers who sound or appear foreign;
• When an employer hires non-immigrant visa holders, but rejects U.S. citizens and other work-authorized individuals who apply for work;
• When an employer hires undocumented workers instead of work-authorized individuals;
• When an employer separates work-authorized workers for lying about their prior undocumented status, but does not fire other workers for lying about different aspects of their background;
• When an employer separates employees for whom it receives an E-Verify “tentative nonconfirmation” (TNC) notification on a selective basis;
• When an employer uses E-Verify to pre-screen applicants on a selective basis; and
• When an employer pre-screens all applicants, but does not hire applicants for whom it receives no-match notifications or E-Verify TNC notices.

Although the list is non-exhaustive, these real-world examples have resulted from successful investigations by DOJ and its standards and definitions for what constitutes violations of the law.

Employers may find the Fact Patterns Flyer helpful in assessing their conduct. Employers also may consider the following:

(1) Injured parties need only file a discrimination charge to begin the administrative adjudication process—there is no independent review of the veracity of the allegations completed by the agency prior to its demand to the employer for an informal response to the allegations. In other words, credibility of the initial claim is presumed.

(2) OSC also will initiate an independent investigation based upon information developed during the individual charge investigation, and will commonly liaise with other government agencies to support the charge that the employer’s compliance failures evidence a pattern or practice of discriminatory activity. Essentially, an employer must prepare for the possibility of a systemic investigation that flows from a single, individual claim by an allegedly-aggrieved employee.

Understanding the complexities of the verification process is only the beginning. An employer also must be able to point to standard policies and consistent operating procedures that may serve as a backstop to government allegations of company-wide discriminatory activity. Unless an employer may deflect OSC’s interest in examining its verification practices in every location of the organization with the support of sister-enforcement-agencies, like Immigration and Customs Enforcement, CIS Fraud Detection, Department of Labor Wage & Hour, and IRS auditors, the consequences of the investigation may jeopardize the business well beyond the one employee.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Director of Immigration and Customs Enforcement (ICE) John Morton has announced record numbers of worksite enforcement investigations, criminal prosecutions, and administrative-fine-awards for FY2011.

As the investigative arm of the U.S. Department of Homeland Security, ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal border control, customs, trade, and immigration laws.

As a primary part of its immigration enforcement effort ICE has targeted employers that recruit, hire, and continue to employ unauthorized foreign nationals. ICE’s comprehensive worksite enforcement strategy is focused on deterring unlawful employment. ICE believes its increased investigative activity will have the effect or driving all employers toward instituting fairly conservative standard operating procedures to cultivate a culture of compliance with the nation’s immigration-related employment laws. In testimony before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Morton indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.

As of September 17, 2011, ICE instituted 3,015 administrative/criminal investigations—a 54% increase over FY2008. In FY2010, ICE arrested and criminally prosecuted 196 owners, HR managers, and executives—a 45% increase over FY2008. ICE refused to release statistics on those employers subject to potential criminal prosecution who negotiated with ICE or U.S. Attorneys to enter into deferred prosecution agreements.

In FY2011, ICE issued a record 2,393 Notice of Inspection (for federal Forms I-9 and supporting documents), a more than 375% increase from that issued in FY2008.

ICE has issued 331 final administrative fine orders in FY2011, totaling more than $9 million in fines levied on employers (it issued to 18 final orders in FY2008, totaling $675,000 in fines). In addition, FY2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitution.

“Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right. We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals,” Morton said.

Employment verification compliance requirements are onerous, but employers must remain vigilant. Employers with multi-state locations also must consider supplemental state verification compliance requirements. To the extent that ICE must review an employer’s Forms I-9 prior to coming to a conclusion about the rate of employment of unauthorized foreign nationals, all employers are at risk. Now is the time to minimize exposure.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Alabama’s controversial requirement that school officials determine, prior to enrollment, whether a student is legally in the United States was blocked by the federal court of appeals on October 14, 2011. The Justice Department brought the lawsuit on the basis that the state law is pre-empted by federal immigration law.

Reports of bullying of children have increased since the passage of the Alabama law on June 9, 2011. In addition, parents have been pulling their children out of school for fear of exposing them to racial profiling, vigilante enforcement and removal from the United States. The full economic and social impact of Alabama’s and other states’ immigration laws is yet to be seen. Alabama is not the first state, nor will it be the last, to enact immigration provisions that will directly impact employers, employees and their families, as the nation struggles with the issue of immigration.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

AUTHOR: MAGGIE MURPHY 

Apologizing for inadequate outreach on its new protocol, the Citizenship & Immigration Service (CIS) has requested feedback on its “surprise” policy – implemented September 12 – to send original approval notices to Petitioners and Applicants directly, rather than the attorneys of record. Attorneys of record with properly filed Forms G-28 now receive unofficial “Courtesy Copy” approval notices. CIS said its new policy will ensure the original notices reach the Petitioner or Applicant and combat possible immigration service scams.

A number of immigration attorneys, including those from Jackson Lewis, complained of the sudden implementation of the policy and challenged the legality of such implementation. The regulations clearly state that notices shall be given to the attorney or representative of record.

When an attorney is hired to assist with an immigration filing, a number of safeguards are attendant to the attorney-client relationship, including:

• Document Integrity and Security – all notices and critical, original documents should be mailed to the attorney so that they can be verified to ensure the case was approved and the notice printed properly. The attorney is in the best position to advocate on behalf of the client to get any errors corrected. Similarly, most immigration attorneys are also responsible for case management tracking and other tasks that minimize the risk of extreme case delays and complications.

• Issues with I-9 Completion and Driver’s License Requirements – foreign nationals working in the U.S. in nonimmigrant status (e.g., H-1B, L-1, and O-1) are often required to show their original I-94 document when completing various state and federal applications. When a change or extension of nonimmigrant status is requested, the original approval notice contains the foreign national’s new I-94 card. Therefore, mailing to the wrong address can cause enormous delays and problems.

• Requests for Evidence Timing Deadlines – case processing often involves “Requests for Evidence (RFEs)” from the CIS, in which the adjudicating officer asks for information and documentation to supplement the case filing. RFEs are issued under strict processing deadlines, normally only 30 – 90 days. Failure to respond can result in a delay of the case, which can be detrimental to the foreign national’s status. Thus, RFEs “lost” in employer mailrooms or apartment buildings or temporary residences have resulted in employees losing work authorization and status.

Jackson Lewis is working with the American Immigration Lawyers Association (AILA) to persuade the government to suspend the new policy.

CIS said it will review all comments, as well as examples sent in through its Office of Public Engagement about this policy, but the policy stands.

Jackson Lewis’ immigration team represents national employers of all sizes in various industries. We are experienced in quickly implementing filing strategies for our employer-clients who are filing I-129 and I-140 petitions on behalf of foreign national employees. Employers should alert their attorneys of any mail from the Department of Homeland Security or CIS immediately.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

AUTHOR - Sujata Ajmera

Most employers with foreign national employees know that working with the Department of Labor (DOL) is an essential first step to securing permanent residency status on behalf of those employees. The permanent employment certification process (the “labor certification” or “PERM” process) requires employers to work directly with the DOL on two occasions – first, to obtain a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center (NPWC); and, second, to obtain a Permanent Labor Certification from the DOL’s Employment & Training Administration (ETA).

Traditionally, it takes approximately four weeks to get a Prevailing Wage Determination from the NPWC. There has never been a way to expedite issuance of a Prevailing Wage Determination. The wait is now longer.

Due to pending litigation against the DOL, there is now a significant backlog in the NPWC’s review and issuance of Prevailing Wage Determinations for PERM cases. Consequently, a Prevailing Wage Determination may take approximately 12 weeks. This has important implications for certain foreign workers.

The American Competitiveness Act of the 21st Century (AC-21), enacted in 2000, allows an employer to extend a qualifying employee’s H-1B status beyond the six-year maximum if a PERM application is filed on or before the expiration of the employee’s 5th year of H-1B status. The purpose of AC-21 is to minimize the adverse effect the lengthy employment-based permanent resident process has on an employer’s ability to retain qualified foreign national workers and to guarantee the employer the ability to engage in continuous, uninterrupted business throughout this process. Sponsoring employers are now finding themselves unable to secure AC-21 protection for employees whose 5th year of H-1B status expires within the next few months.

The unforeseeable, drastic delay in issuance of Prevailing Wage Determinations has not been addressed by the DOL. The agency has not provided a mechanism to expedite or prioritize wage issuance based on critical timing issues. Employers in this predicament are at risk of losing valuable employees or being forced to transfer them abroad (if possible) in order to remain compliant with applicable regulations.

From an employment law perspective, those employers who are in this predicament may have no option but to consider filing a federal court mandamus action to compel the DOL to adjudicate Prevailing Wage Determinations requests within a reasonable time. This may be the fastest and most effective way to remedy a very serious problem.

If you are an employer with foreign national employees who are at risk of losing AC-21 eligibility in the next several months, please contact a Jackson Lewis attorney to discuss the best strategy to satisfy your employment needs and obligations. We will continue to monitor development at the DOL and National Prevailing Wage Center.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Justice has announced a record anti-discrimination settlement agreement with Farmland Foods, Inc. involving allegations that the company engaged in a pattern or practice of discrimination during the I-9 process. According to the DOJ, Farmland, a major U.S. producer of pork products, allegedly required newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Illinois plant to present specific and sometimes extra work-authorization documents not required by law. Farmland has agreed to pay $290,400, the highest civil penalty in an anti-discrimination settlement. It also has agreed to train its human resources personnel about proper I-9 procedure and provide periodic reports to the DOJ for monitoring purposes.
 

According to the lawsuit filed on behalf of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Farmland extended a conditional offer of employment to a naturalized U.S. citizen on December 2, 2009 and asked the new hire to complete the I-9 form. At that time, the individual presented a driver’s license (List B) and an unrestricted Social Security card (List C). After the employee started orientation, Farmland (through its agent) submitted the individual to E-Verify and received a tentative nonconfirmation (TNC). Rather than having the employee go through the TNC process (which would have involved talking to a DHS representative or visiting SSA – actions not involving the employer), Farmland allegedly asked the employee to bring in her naturalization certificate and/or other documents to prove her citizenship. While it’s not clear from the complaint how the employer reacted, eventually the OCS was contacted.
 

According to the complaint, Farmland routinely has engaged in a pattern of discriminatory documentary practices in its Monmouth plant since at least December 1, 2009. Between December 1, 2009 and January 26, 2011, the OSC alleged that Farmland required non-U.S. citizens to specifically produce a “List A” document issued by the Department of Homeland Security in addition to other documents. Employees attesting to be a “lawful permanent resident” for example, would be required to produce an I-551 permanent resident card and employees attesting to be “an alien authorized to work” would be required to produce an I-766 employment authorization document. Meanwhile, the large majority of U.S. citizens hired were allowed to produce varied List B and List C documents without restriction.
 

According to the OSC, Farmland:
• Required 100% of non-U.S. citizens to produce a “List A”, while only 4.9% of U.S. citizens were required to do so.
• Required 100% of non-U.S. citizens to produce identity and work authorization documents in addition to a “List A” documents during the Form I-9 Employment Eligibility Verification process, while only 1.6% of U.S. citizens were required to do so.
• Required 88% of the non-U.S. citizen employees to produce a List A, B, and C document, while only 0.8% of the U.S. citizen employees were required to do so.
 

Interestingly, for the non-U.S. citizen employees, Farmland only recorded the List A document on section 2 of the Form I-9 and attached photocopies of the additional documents to the Form I-9. Thus, on the surface, this would not have appeared to be over-documentation. Regardless, Farmland’s demand for specific or excessive documents to establish work authorization clearly violated the anti-discrimination provision of the Immigration and Nationality Act (INA).
 

The lesson learned from this case is that it is not enough to have the I-9 boxes completed correctly. The process behind the I-9 is complex and should be examined. Over-documentation is a serious issue that the OSC will pursue. Experienced compliance counsel should be consulted to ensure your organization is in compliance with all applicable regulations.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The United States Immigration and Customs Enforcement (“ICE”) has announced that, as at July 21, 2011, it has fined 14 employers in New England this year for hiring illegal aliens in violation of law.

The companies were the subject of an investigation and audit of their Form I-9 documents, which is part of ICE’s ongoing worksite enforcement strategy. Following investigation, the companies, located from Massachusetts to Maine, were subjected to fines ranging from $23,000 to more than $100,000.

Nationally, ICE has been pursuing a worksite enforcement strategy, launched in 2009, to reduce demand for illegal employment of aliens and to protect employment opportunities for America’s legal workforce. This strategy has focused on auditing and investigating employers suspected of hiring workers later determined to be unauthorized for employment in the United States.

As quoted by Bruce M. Foucart, Special Agent in charge of ICE in Boston:

“These settlements serve as a reminder to employers that ICE will continue to hold them accountable for hiring and maintaining a legal and compliant workforce. We encourage companies to take the employment verification process seriously.”

ICE’s continued focus on worksite enforcement warrants employers’ ensuring their compliance with the employment verification process. Employers must complete and retain a Form I-9 for every individual hired for employment in the United States. Each employee is required to provide the employer with proof that the employee is authorized to work in the United States. Failure to properly complete the employment verification process can lead, at a minimum, to fines or, depending on the seriousness of any uncovered violations, a criminal investigation of an employer by ICE.

The Global Immigration practice of Jackson Lewis routinely advises our clients in navigating the employment verification process.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

                                                           Author: Nicola Ai Ling Prall

With employers’ increased use of electronic Forms I-9 and more states mandating use of E-Verify, a number of electronic I-9 and E-Verify vendors are offering services to help employers with these demands. However, difficulty can arise for employers if the ownership of data and the terms of that ownership are not clear, as illustrated by a recent lawwsuit.

Furthermore, some background screening providers, applicant tracking system providers, and all-in-one human resources solutions providers are reselling the electronic I-9 and E-Verify functions to third-party vendors, which can further complicate issues regarding data ownership and access.

While these services are useful and can streamline the on-boarding process, employers must be diligent to ensure that they maintain access to all I-9 and E-Verify data.

If audited by the Immigration and Customs Enforcement (ICE) (see our earlier post, ICE to Issue 1,000 Audit Notices to Employers, Focus on Infrastructure Safety), employers have only three days to gather the requested information for ICE. Therefore, it is critical that employers can access their data quickly. When choosing an electronic I-9 provider or a system with a reseller arrangement, employers should ask:

1. Who owns the I-9 and / or E-Verify data?
2. Where is the data stored?
3. Is the data commingled with other employers’ data?
4. Can the employer request a backup of the I-9 and E-Verify data at any time?
5. What is the cost of a data backup?
6. In what format will the backup be provided?
7. What happens to the employer’s data if the vendor changes its resellers?
8. What happens to the employer’s data if the vendor or reseller goes out of business?

There are specific electronic I-9 retention system regulations that can affect every aspect of a vendor’s system and the employer’s relationship with the vendor. It is important that employers speak with experienced counsel before entering into an electronic I-9 or E-Verify vendor relationship.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Fulfilling a campaign promise, Georgia Governor Nathan Deal has sign into law a sweeping immigration bill that will affect companies in Georgia that employ more than 10 full-time employees. The law, HB87, requires companies to register with the federal E-Verify program and check the legal status of new hires. It also creates the offense of “aggravated identity theft” for the use of false information. In addition, it allows the police to question individuals about their immigration status and mandates sanctions for those who harbor or transport undocumented migrants.

HB87 passed by a vote of 112-59 in the lower house and 39-17 in the Senate. The Senate’s effort to block the portion of the bill that required use of the federal E-Verify system to ascertain the immigration status of employees failed.

In addition, businesses in Georgia must begin using E-Verify as early as January 1, 2012, depending on the size of the business. Those with 500 employees or more must begin using E-Verify on January 1, 2012; those with 100-499 employees, July 1, 2012; and those with 11-99 employees, July 1, 2013.

In addition, beginning July 1, 2011, anyone who knowingly transports or harbor an illegal immigrant or encourages an illegal immigrant to come to Georgia could be fined up to $1,000 and be imprisoned for up to 12 months.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In President Obama’s May 10th speech at Chamizal National Memorial, at the U.S.-Mexico border in El Paso, on the need for immigration reform in the United States, he included an outline of his proposal for comprehensive immigration reform and a plea for people to voice their support.

His proposal addressed three key employment-related areas. First, in line with his administration’s immigration enforcement strategy, he emphasized the need to hold businesses accountable for the exploitation of undocumented workers. Second, he encouraged the creation of a path for the best and the brightest studying at U.S. universities to remain in the U.S. to start businesses and create jobs. Finally, he proposed providing U.S. farms a legal way to hire foreign workers.

Jackson Lewis continues to monitor the prospect of reform and its potential impact on all employers.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Approximately $50 million in financial sanctions for worksite enforcement violations were imposed by the federal government in fiscal year (FY) 2010, according to Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton. The agencies announced record-breaking immigration enforcement results that reflect the aggressive stance taken under the Obama Administration to combat the hiring of unauthorized workers. While the government continues to detain and remove unauthorized individuals, Secretary Napolitano emphasized that the Obama Administration also would continue to pressure employers, holding them accountable through I-9 audits, fines and debarment from immigration programs.

ICE has achieved the following in FY 2010:
• Removing 392,000 individuals, including 195,000 convicted criminal foreign nationals
• Bringing criminal charges against a record-breaking 180 owners, employers, managers and/or supervisors — up from 114 in FY 2009 and 135 in FY 2008
• Conducting more than 2,200 I-9 audits — up from a little more than 1,400 in FY 2009
• Imposition of approximately $50 million in financial sanctions
• Debarment of 97 businesses and 49 individuals in FY 2010, up from 30 businesses and 53 individuals in FY 2009

This is a reminder to employers to question and review their I-9 practices and policies. While ICE states that it conducts I-9 investigations of employers based on credible leads (such as complaints from disgruntled employees, tips from the public or cases having national security or public safety implications), they also reserve the right to initiate audits for other reasons, such as referrals from other government agencies that have investigated an employer in an unrelated matter or even randomly targeting industries generally known to have high reports of undocumented workers, such as in construction, hospitality, retail and food production.

To forestall any negative government actions in this area, an employer would be wise to conduct its own internal I-9 audit or engage legal counsel to do so. Start with an overall audit plan and implementation of the plan, and follow through on corrections of identified errors and maintenance of a thorough I-9 compliance policy. For more information on how the Global Immigration Group can assist you, see our I-9 Compliance Brochure. Preparation is key.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Immigration and Customs Enforcement (ICE) has served more than 500 Notices of Inspection (NOIs) to U.S. companies over the past week. According to the agency, allegations that employers are hiring unauthorized workers and paying employees unfair wages or otherwise exploiting workers set off this latest round of inspection notices.

With this move, ICE furthers its stated objective of executing all measures necessary to ensure that lawful employment of all workers is maintained in the workplace, a central objective of the Obama Administration. No doubt this will be followed by additional rounds of mass NOIs. Consequently, this is a reminder to employers of the critical need to ensure I-9 form compliance. Among other activities, employers should take precautions to ensure that they are diligently conducting the employment eligibility verification review process at the time of hire, maintaining documentation, and ensuring proper review on an ongoing basis.

As part of an employer’s diligence, focus should be given to completing internal audits immediately to identify and correct any errors. Upon receipt of a NOI, an employer has only three (3) business days to provide I-9 Forms to ICE (an extension is available under limited circumstances). Therefore, the NOI should not be the primary trigger for a company’s I-9 concerns. A proactive review would provide an opportunity to confirm accurate record keeping, as well as allow an employer to target areas that need procedural development and internal training. The Global Immigration Group can provide assistance in navigating these processes.

An employer can address the retention of I-9s in a number of ways, but the approach selected should be uniform, consistent and, most importantly, in compliance with government rules and regulations. Developing an action plan should be paramount on a company’s to-do list. Take the opportunity to reflect on and assess what your next step should be. We will continue to monitor this and related developments.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Justice (“DOJ”) has filed a lawsuit against the Maricopa County Sheriff’s Office, and its well known County Sheriff Joe Arpaio, for his refusal to hand over documents in the DOJ’s long running civil rights probe. The complaint alleges that the Sheriff’s Office is in violation of Title VI of the Civil Rights Act of 1964 by refusing to fully cooperate with the DOJ’s investigation into the Sheriff’s Office’s police practices and jail operations.

The DOJ’s investigation into the Sheriff dates back to the Bush Administration, which started investigating allegations of civil rights violations by the Sheriff’s Office in June 2008. The investigation has focused on allegations that the Sheriff’s Office violated Title VI’s prohibition on national origin discrimination by engaging in a pattern or practice of discriminatory law enforcement conduct.

The DOJ’s lawsuit is the most recent in a series of immigration-related lawsuits filed this year in the federal district court in Arizona. (See Another Lawsuit Filed Challenging Arizona's Senate Bill 1070.) Following enactment of the highly controversial Senate Bill 1070, at least six separate lawsuits were filed in federal court challenging Senate Bill 1070 on a variety of bases. On July 28, Judge Susan Bolton enjoined several provisions of the Bill. The State of Arizona immediately appealed Judge Bolton’s decision to the Ninth Circuit Court of Appeals. The appeal is currently pending.

Finally, the case challenging the Legal Arizona Workers Act (the 2008 bill that established the requirement that all Arizona employers use E-Verify for all new hires) is currently pending before the U.S. Supreme Court. Jackson Lewis will let you know when the Court issues its decision in that case.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a blow to employers, a federal district court has upheld a USCIS memorandum that set out factors to determine whether an employer-employee relationship existed for H-1B nonimmigrant visa petition adjudication purposes.

The case was brought by an IT staffing firm that, along with other IT staffing firms and trade associations, challenged the validity of the USCIS’s January 8, 2010, Memorandum for “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (HQ 70/6.2.8 AD 10-24) (“Neufeld Memo”). The case was dismissed, with prejudice, by the federal district court for the District of Columbia on August 13, 2010. Broadgate Inc. v. U.S. Citizenship and Immigration Services, No. 1:10-cv- 00941-GK, (D. D.C.). The Neufeld Memo set out 11 factors and hypothetical examples for when an employer-employee relationship did and did not exist for H-1B nonimmigrant visa petition adjudication purposes. The plaintiff argued that the Neufeld Memo failed to comply with the Notice of Proposed Rule Making requirements of the Administrative Procedures Act and, therefore, was invalid. Additionally, they argued the memorandum set out new substantive rules that were binding upon USCIS service center adjudicators. Siding with the USCIS, the Court found the Neufeld Memo to be valid as it is “interpretive” in nature and was intended to be used by adjudicators in the application of the five tests set forth in the regulation for determining whether the requisite employer-employee relationship had been satisfied by the petitioner.

It is no secret that with the current recession and corresponding high unemployment rate, there is intense government scrutiny of immigration-related filings by U.S. employers seeking to secure employment work visas for foreign workers. Statutory and regulatory requirements are now being applied strictly, as evidenced by the Neufeld Memo.

What is most troublesome with the Broadgate decision is that the door is now open for the USCIS to create potentially unlawful “interpretive” memorandums for the adjudication of such filings, leaving the employer with the ability to challenge their unlawfulness only when the filing has been erroneously denied. It is not uncommon for 24 or more months to elapse from the time of denial of an application by the Service Center and affirmation by the Administrative Appeals Office before the Petitioner can challenge the legality of the standard in federal district court. In agreeing with the government’s “interpretation defense,” the Court created a Trojan horse for the USCIS and other federal agencies, such as the Office of Foreign Labor Certification at USDOL, to render erroneous decisions that deny immigration benefits to those legally entitled to them.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On August 9, 2010, the U.S. Department of Homeland Security (DHS) amended its regulatory definition of “dependents” for A or G principal aliens to include, in addition to spouses and unmarried sons and daughters, those who are not related to the principal alien by blood, marriage or adoption.
Previously, DHS regulations allowed only the following dependents habitually residing with the A or G principal to apply for employment authorization:

• Spouse;
• Unmarried children under the age of 21;
• Unmarried sons or daughters under the age of 23 who are full-time post-secondary school students;
• Unmarried sons and daughters under the age of 25 who are full-time secondary school students if a formal bilateral agreement permitting their employment in the U.S. was signed prior to November 21, 1988, and if such bilateral agreement does not specify 23 as the maximum age for employment of such sons and daughters; and
• Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain or re-establish their own households.

The recent DHS change was meant to correspond to last year’s regulatory expansion of the definition of “immediate family” by the U.S. Department of State (DOS) which include those who:

• Are not members of some other household;
• Will reside regularly in the household of the principal alien;
• Are recognized as immediate family members of the principal alien by the sending Government as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
• Are individually authorized by the Department of State.

The regulations controlling the employment of aliens has also been amended to allow these dependents to now file an I-765 Application for Employment Authorization Document (EAD Card) pursuant to 8 CFR 274a.12(c)(1) and (4). Specifically, the amendments replace references to the “spouses” and “children” of A and G principal aliens with “dependent.”
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On July 22, Judge Susan Bolton of the U.S. District Court in Phoenix heard arguments in two of the most highly publicized challenges to Arizona Senate Bill 1070: (1) the lawsuit filed by a coalition of civil rights groups and labor unions; and (2) the lawsuit filed by the U.S. Department of Justice (“DOJ”). The plaintiffs in both seek to enjoin SB 1070 from taking effect on July 29, 2010.

Judge Bolton does not intend to enjoin SB 1070 in its entirety. Stating that she considers SB 1070 to be an “enactment,” combining new laws and amending existing laws, rather than a “statute,” Bolton indicated she was considering whether to block all or parts of certain key provisions of SB 1070 and steered attorneys toward the more questionable portions of those provisions.

Judge Bolton voiced concerns regarding portions of SB 1070, including a provision that allows law enforcement officers to make warrantless arrests of people suspected of committing offenses that make them “removable from the United States.” At the hearing, Judge Bolton asked: “How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?”

Attorneys for the DOJ argued that the provisions of SB 1070 are pre-empted by federal law. The agency’s lawsuit alleges that SB 1070 “will conflict and undermine the federal government’s care balance of immigration-enforcement priorities and objectives.”

Judge Bolton did not make any rulings at the hearings and has not said when she will issue a ruling. With the statute set to take effect in days, it is anticipated that she will rule quickly. Jackson Lewis will continue to monitor the legal developments surrounding SB 1070.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In April 2005 when Public Law 108-390 went into effect allowing for employers to sign and retain I-9 employment eligibility verification forms electronically, employers and immigration practitioners alike may have been justifiably confused as provisional guidance from the Department of Homeland Security’s ICE (Immigration Customs and Enforcement) division on their web page http://www.ice.gov/pi/news/factsheets/i-9employment.htm was introduced. ICE guided employers to “interpret the law”(!), and advised employers to “note that there is no single government-wide electronic signature or record-keeping standard. However, some federal agencies have provided electronic record-keeping standards for their own transactions with the public…[which] may serve as a helpful reference for employers until DHS issues regulations to govern the storage of Forms I-9.” For over a year, employers and their counsel had to guess about what standards would comply with the law and fit within the enforcement agency’s vague guidance. Despite tangible benefits in terms of paperwork reduction, many employers opted to wait for something more concrete before investing in an electronic I-9 program and institutional training.

In June 2006, ICE issued an interim rule which provisionally codified standards that employers wishing to use electronic I-9 completion and storage systems should observe. Building on their initial guidance, most of the standards outlined in the provisional rule reflected IRS electronic recordkeeping guidelines, and covered criteria such as accessibility, accuracy, security, and quality of data being captured and systems being used for electronic storage. http://edocket.access.gpo.gov/2006/E6-9283.htm.

Some four years later, an advance copy of final rules modifying 8 CFR 274a.2 has been issued (http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr22jul10.pdf), so presumably interested parties have had sufficient time to comment on the interim rules prior to finalization, unlike some notorious instances of agency “legislation by decree” in which policy “clarifications” were later deemed to have unlawfully omitted the normal public comment period. http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1579.

The final version of the rule contains standards which will be familiar to employers who currently use electronic I-9 systems and the vendors who market such systems. As before, the final rule “permits employers to complete, sign, scan, and store the Form I-9 electronically, as long as certain performance standards… are met.” Changes in the final rule are relatively minor, amounting in most instances to clarifications:
-employers must complete a Form I-9 within three business (not calendar) days;
-employers may use paper, electronic systems, or a combination of paper and electronic systems;
-employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
-employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
-employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

This rule does not include any changes to I-9 form content or acceptable documents, but an acceptable document change did occur in 2008 (73 FR 76505) and 2009 (72 FR 2838 - correction). Therefore, while there was nothing dramatic or surprising in the final rule, employers can now rest assured that electronic I-9 completion and storage standards appear to be final.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The scorching Texas summer is not the only heat Texas employers are feeling these days. According to a recent article in the Houston Chronicle, the United States Immigration and Customs Enforcement (ICE) has hit 23 Texas companies with civil fines exceeding $600,000 for hiring unauthorized workers, failing to comply with regulatory employment verification requirements, or both. Some of these employers are also facing criminal prosecutions.

It is no secret that the current administration has placed heavy emphasis on enforcing workplace laws and numerous employers have felt the brunt of it. Enforcing immigration laws that prohibit employers from hiring unauthorized workers and that require all employers to verify each new hire for work authorization and completion of the I-9 Employment Eligibility Verification Form is a part of the overall scheme. And, since there are budget deficits that must be made up, hefty fines for violations help.

Under this enforcement regime, employers are cast as the villains of the piece and the cause for the massive influx of illegal workers into this country. Rather than deporting apprehended illegal workers, the government now allows many to remain in the United States, where they are given employment authorization in return for their assistance in the investigation and prosecution of employers.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Justice has filed a challenge to the state of Arizona’s recently passed immigration law, S.B. 1070, in federal court.

The Arizona law, called the Support Our Law Enforcement and Safe Neighborhoods Act and scheduled to take effect on July 29, is already the target of at least five other lawsuits filed by civil rights and other groups.

In its suit, filed July 7, the DOJ charges that the Arizona law conflicts with federal law, would disrupt federal immigration enforcement, and would lead to local police harassment of those who cannot prove lawful status. DOJ officials expect a hearing within the next two weeks on their motion for a preliminary injunction blocking the law from going into effect.

The DOJ cites the legal doctrine of "preemption" in its complaint. Preemption is based on the U.S. Constitution's supremacy clause and provides that federal law trumps state statutes. The DOJ argues that because the federal government has "preeminent authority to regulate immigration matters," the Arizona law must be struck down. Additionally, on the more practical side, the DOJ argues that the Arizona law would unduly burden federal agencies charged with immigration enforcement. Enforcement of the Arizona law would result in Arizona referring so many illegal immigrants for deportation, the lawsuit argues, that federal officials would lose focus on top priority targets, such as immigrants involved in terrorism or other crimes. The suit also claims that the Arizona law would overburden local law enforcement officials.

Although the lawsuit mentions potential "detention and harassment" of U.S. citizens and immigrants who do not carry identification documents, it does not argue that the law would lead to racial profiling.

An official press release, along with copies of the complaint and supporting documents, can be found at the Department of Justice website: http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Comprehensive Immigration Reform (CIR) once more may have had new life breathed into it. President Barack Obama on July 1 called on Congress to act on CIR and fix our “broken” immigration system. As a part of this reform, he said that employers who take advantage of the underground labor market should continued to be punish, the estimated 11,000,000 undocumented aliens currently in the U.S. should be allowed a “path” to legal residency, and the delays hindering those pursuing legal immigration should be fixed. The president questioned Congress’ ability to pass such legislation, but indicated that action on CIR was urgent.

CIR has been pronounced dead more times than anyone can remember. Some see legislative priorities like healthcare reform, banking reform, the housing market, job loss and the economy as dominating the legislative agenda in the foreseeable future and CIR’s chances seem a long shot. Even in the wake of Arizona’s controversial immigration law, which many thought would force some sort federal action, reform seemed a long way off. Perhaps now with the Administration’s clear support, we will see progress in CIR.

We will continue to stay on top of developments as they arise.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Immigration and Customs Enforcement (ICE) agency is stepping up its program to promote IMAGE (ICE Mutual Agreement between Government and Employers). IMAGE is a voluntary program under which ICE will “partner with companies representing a broad cross section of industries in order that these firms may serve as charter members of IMAGE and liaisons to the larger business community.”

IMAGE subjects a participating employer to standards far higher than normally required by the law that can pose unintended consequences for employers. Improper and inconsistent application of the complicated IMAGE employment-verification system could expose employers to claims of discrimination. Further, while adopting the “best practices” requirements through IMAGE is meant to enhance legal compliance, the additional requirements on participating employers could lead to a heightened risk of technical errors.

The initial steps for IMAGE require a participating employer to:

1) Complete a self-assessment questionnaire
2) Enroll in E-Verify
3) Enroll in the Social Security Number Verification Service (SSNVS)
4) Undergo a Form I-9 audit by ICE
5) Review and sign an official IMAGE partnership agreement with ICE

In addition, employers must take steps to comply with ICE’s “best practices,” which include:

1) Establishing a written hiring- and employment-eligibility verification policy
2) Establishing an internal compliance and training program that includes I-9 training, fraud detection and use of SSNVS and E-Verify
3) Restricting the conducting of I-9 and E-Verify processes to individuals who have received training
4) Arranging for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and E-Verify processes
5) Establishing a self-reporting procedure to report to ICE violations or discovered deficiencies
6) Establishing a procedure to report to ICE credible information of suspected criminal misconduct in the I-9 process
7) Establishing a program to assess subcontractors’ compliance with employment-eligibility verification requirements, encourage contractors to incorporate IMAGE Best Practices, and, when practicable, incorporate the verification requirements in subcontractor agreements
8) Establishing a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized workers and a protocol for responding to employee tips

According to ICE, the benefit to employers is credibility and access to training, including on the latest illegal schemes used to circumvent legal hiring processes. Furthermore, ICE will review the hiring and employment practices of IMAGE partners and “work collaboratively with them to correct isolated, minor compliance issues that are detected.”

While ICE claims that “Image Certified” will become the industry standard as it relates to unauthorized employment verification, since its inception nearly four years ago, adoption of the program by employers remains low (see attached is the list of “IMAGE Certified" Companies). Most companies reject IMAGE because of the many additional burdens it creates, many of which may result in additional costs and unnecessarily high standards.

Is it worthwhile for a company to become IMAGE Certified? Employers must weigh the risks and costs of the compliance obligations against the two primary benefits: (1) the value of the “IMAGE Certified” credential and (2) additional access to training and information. Employers should carefully review the new IMAGE initiative before deciding to participate.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The list of lawsuits challenging Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070) continues to grow. On May 17, 2010, 14 civil and immigrant-rights groups, along with 10 individuals, filed a lawsuit in U.S. District Court challenging the constitutionality of Senate Bill 1070. At least five separate lawsuits have been filed seeking to prevent the Bill from becoming effective on July 29, 2010. Unlike the others, the most recent lawsuit names Arizona’s county officials as defendants rather than Governor Jan Brewer.

The lawsuit alleges Senate Bill 1070 is unconstitutional on a number of grounds, including:

• The Bill violates the federal Supremacy Clause by attempting to bypass federal immigration law.

• The Bill deprives racial and national origin minorities of their 14th Amendment right to equal protection under the law by subjecting them to stops, detentions, questioning and arrests based on their race or national origin.

• The Bill infringes on the constitutional right to travel without being stopped, interrogated and detained.

• The Bill violates the First Amendment right to freedom of speech because it exposes speakers to scrutiny based on, among other things, an individual’s language or accent.

Several unions, including the UFCW and the SEIU, have signed up as plaintiffs for the most recent lawsuit. Labor unions have been extremely vocal in opposition to Senate Bill 1070 and have been active in calling for boycotts of Arizona businesses. These unions appear to be using opposition to the Bill as a tool to increase their organizing efforts in Arizona.

Jackson Lewis will continue to monitor the various legal challenges to the Senate Bill 1070 and will provide timely updates.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While Arizona’s controversial new immigration law, Senate Bill 1070, continues to garner national attention in the months leading up to its July 29 effective date, employers in Arizona must not forget their obligations under the already effective Legal Arizona Workers Act (“LAWA”). LAWA imposes severe penalties on employers who either “knowingly” or “intentionally” hire unauthorized workers.

On May 6, 2010, Maricopa County Sheriff Joe Arpaio raided a Phoenix business, arresting 24 employees suspected of being illegal aliens. Sheriff Arpaio conducted the raid after receiving a tip through his immigration hotline that employees at the business were engaging in identity theft. The recent raid was Sheriff Arpaio’s 32nd workplace raid in the period since LAWA took effect in January 2008.

Until recently, the Sheriff’s raids have focused primarily on the arrests of unauthorized workers and have not resulted in the prosecution of the businesses that employed them. However, that appears to be changing. The Maricopa County Attorney’s Office has initiated at least two cases against employers under LAWA. There are also indications that Arizona’s County Attorneys are gearing up for increased enforcement of LAWA. Senate Bill 1070 adds an “entrapment” defense to LAWA, which suggests that law enforcement will be engaging in more creative investigation techniques in the future. Moreover, the Maricopa County Attorney sought increased subpoena power under LAWA, but this initiative was successfully opposed by business groups and did not make it into the final version of Senate Bill 1070.

Finally, the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging LAWA has made its way to the U.S. Supreme Court. The U.S. Supreme Court has invited the Solicitor General to file a brief on behalf of the U.S. government. With the recent nomination of Solicitor General Elena Kagan to the Supreme Court, it is not clear when the case will move forward.

Jackson Lewis will continue to follow developments under LAWA.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Department of Labor has released a new online tool to help employers and employees understand how to comply with the H-1B visa program. This is part of the agency’s new compliance initiatives.

As background, the H-1B non-immigrant visa classification was created under the Immigration and Nationality Act to help U.S. employers who cannot obtain workers with needed skills from the U.S. workforce by authorizing the employment of qualified foreign workers under the H-1B visa program. The program establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign H-1B workers, as well as to protect H-1B workers themselves. See http://www.dol.gov/whd/immigration/h1b.htm.

DOL’s new online H-1B Advisor addresses solely the Labor Condition Application requirements enforced by the agency’s Wage and Hour Division. This helps employers to determine whether they have complied with the H-1B Wage and Hour requirements and provides all employees and any interested individual detailed information and instructions with regard to filing a complaint against a U.S. employer believed not in compliance with the regulations.

The interactive, online H-1B Advisor describes the program's standards and provides detailed information concerning H-1B employers' and workers' rights and responsibilities. Users can determine if they fulfill the requirements of the visa program by answering questions relevant to specific H-1B classified workers.  The H-1B Advisor also outlines the obligations imposed on H-1B employers, including notification requirements, monetary issues (obligation to pay, required wage rates, permissible deductions, benching, credits, termination, early termination penalty/liquidated damages issues), worksite issues, recordkeeping, and worker protections (whistleblower protection and displacement of U.S. workers), enforcement (filing a complaint against an employer, defenses, remedies and appeals process) and other requirements for employers deemed to be H-1B dependent or willful violators. 

The H-1B Advisor provides excellent resources to employers and employees in understanding the H-1B employers’ obligations and the workers’ (H-1B or U.S. workers) rights. Of course, given the readily available resources, employers must be vigilant in maintaining consistent and coherent corporate visa-sponsorship policies and procedures to ensure their immigration compliance efforts.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The city councils of two major Arizona cities – Tucson and Flagstaff – have announced their intentions to file lawsuits to challenge the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Flagstaff City Council voted unanimously in favor of a resolution authorizing the lawsuit. The Council described the move as an unfunded mandate for the City to carry out the responsibilities of the federal government. The cost to enforce the new immigration law will be overly excessive said Council members in Tucson as they authorized a lawsuit.

Meanwhile, City of Phoenix Mayor Phil Gordon, one of the most vocal opponents of the statute, said he will join with other Arizona mayors in filing a lawsuit seeking to invalidate the statute. Mayor Gordon had been pushing the Phoenix City Council to authorize a lawsuit on the City’s behalf, but was not able to gather sufficient support.

Additionally, both U.S. Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano continue speak critically of the Arizona statute. Testifying before the Senate Judiciary Committee, Secretary Napolitano stated she fears Senate Bill 1070 will force U.S. Immigration and Customs Enforcement (ICE) to use its already stretched resources to deal with those arrested under Arizona’s new law and will siphon federal money and staff away from hunting down dangerous immigrants. Moreover, Attorney General Holder has said that the Department of Justice is reviewing the statute and will consider all of its options, including “the possibility of a court challenge.”

Stay tuned as Jackson Lewis continue to follow the growing number of legal challenges to Arizona Senate Bill 1070.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

While the business community has largely attempted to stay out of the debate surrounding Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), professional basketball team Phoenix Suns jumps to the center of the debate over the Bill with the team’s decision to wear “Los Suns” jerseys during its playoff game against the San Antonio Spurs on Cinco de Mayo. Suns’ owner, Robert Sarver, announced his disagreement with the Bill, describing it as “mean-spirited.” All of the Sun’s players were reportedly in favor of the decision to wear the jerseys.

Sarver was quoted as saying, “I thought we need to go on record that we honor our diversity in our team, in the NBA, and we need to show support for that. As for the political part of that, that's my statement." The Suns currently have three foreign-born players on the team.

Groups opposing the Bill have looked to sports teams and leagues to influence the discussion. Some have called on Major League Baseball to move its 2011 All-Star game from Phoenix – just as the Super Bowl was moved 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday. Recent efforts have prompted Arizona Governor Jan Brewer to write ESPN on responding to the sports boycott requests, which she labeled as “misguided.”

Sports in America have become increasingly international, with players coming from around the globe. In fact, it is international players that dominate the roster of some of our major professional sports teams. The National Hockey League, for example, is made up of 80 percent of players who were born and raised outside of the United States. On the University level, a significant number of our colleges and universities actively seek international talent to gain a competitive edge. While these players may initially come to the United States either as a student-athlete or on a P-visa (a visa designated by immigration as a visa for professional athletes), these same athletes often seek permanent residence or citizenship to remain in the United States at the conclusion of their careers. As a result, we may see professional athletes and their teams play a significant role in shaping the immigration debate.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Arizona legislature has already made several changes to its recently enacted immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). On the legislature’s last day in session, it passed changes to the law, which the Bill’s sponsor, Senator Russell Pearce, stated were intended to clarify that “the bill prohibits racial profiling in any form.”

Opponents of the Bill had expressed concerns about how crime victims or witnesses would be treated in light of the Bill’s requirement that law enforcement question individuals concerning their immigration status during any “lawful contact.” In an attempt to address this issue, the legislature amended the statute to require questioning only where there is a “lawful stop, detention or arrest.” Moreover, the legislature eliminated the word “solely” from the provision in the Bill, stating that law enforcement officials may not “consider race, color or national origin…” in establishing reasonable suspicion that someone is in the country illegally. Finally, the Bill was also amended to clarify that law enforcement officials responding to city-ordinance violations would be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally.

Governor Brewer signed these changes into law on April 30, stating that she believed the new language, combined with the original wording of the Bill, gives the law "maximum ability to withstand legal scrutiny." These changes will become effective with the rest of the Bill on July 29, 2010.

The changes, however, have done nothing to stop the furor over the Bill’s enactment. The calls for boycotts of Arizona and its businesses have continued to increase in the week since the Governor signed the Bill and will undoubtedly have an impact on Arizona employers.

We will continue to follow these breaking developments.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The fervor surrounding Arizona’s new immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), has grown in the days since Governor Jan Brewer signed the Bill into law on April 23, 2010. The Arizona legislature adjourned on April 29, 2010, which means the Act will become effective 90 days later, July 28. The whirlwind of activity will likely increase in the period before the statute is scheduled to take effect.

On April 29, 2010, three separate lawsuits were filed challenging Senate Bill 1070. The first was filed by the National Coalition of Latino Clergy and Christian Leaders in U.S. District Court for the District of Arizona, alleging that the Act “creates state-wide immigration regulations [that are] independent from the existing federal system and clearly conflict[] with federal immigration law.” In addition, a well known Arizona civil rights lawyer filed two separate lawsuits in federal court (one on behalf of a police officer in Tucson and the other on behalf of a police officer in Phoenix) alleging, among other things, that the Act violates the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Leaders of three prominent civil rights groups announced they are planning to file a lawsuit to challenge the Act.

Meanwhile, calls for boycotts of Arizona businesses have spread and even gained momentum. Further, officials in San Francisco and Los Angeles have proposed that their cities not do business with companies in Arizona. Elected officials in other places, including St. Paul, Minnesota, have called for a boycott. Several groups have reportedly cancelled conventions planned for Arizona in opposition to the Act.
 

We will post updates as warranted.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Less than two years after the enactment of the Legal Arizona Workers Act (“LAWA”), Arizona Governor Jan Brewer has signed into law the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). 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 Governor’s decision has thrust Arizona into the spotlight of immigration reform debate.

The controversial statute has attracted both national and international attention since the April 23 signing and has led to daily protests at the Arizona State Capitol in downtown Phoenix, as well as throughout the country. Several public figures have spoken out in opposition to the statute and there have been widespread calls to boycott Arizona businesses. Despite this, Arizona polls show widespread support for the bill among Arizona residents.

While opposition to the bill has focused largely on the new requirement imposed on law enforcement officials, Senate Bill 1070 has two provisions that will impact Arizona employers. The statute includes a provision prohibiting the hiring of day laborers. This same provision makes it a crime for unlawful aliens to “apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Senate Bill 1070 also adds a recordkeeping provision to LAWA that requires employers to maintain E-Verify verifications for each employee hired after January 1, 2008 for the duration of the employment or at least three years, whichever is longer. In addition, it adds a defense of entrapment for employers facing a claim that they either intentionally or knowingly hired an unauthorized alien.

Jackson Lewis will be closely monitoring developments relating to Senate Bill 1070 and the impact it will have on employers in Arizona and will be providing regular updates.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On April 9, 2010, USCIS announced that in the first week of accepting cap-subject H-1B filings for FY 2011, only 13,500 petitions had been received against the 65,000 regular cap and only 5,600 against the 20,000 master’s cap.

New H-1B visas are generally limited to 65,000 per fiscal year, with an extra 20,000 available to certain individuals with advanced degrees (the master’s cap). The fiscal year begins on October 1, and petitions are accepted beginning April 1.

The first week’s filings represent the fewest H-1B petitions initially filed in several years. In previous years, USCIS had received a substantially greater number of petitions on April 1 than H-1Bs available. Such a situation required lotteries to determine which petitions would be accepted for adjudication. The last lottery was held in 2008, when USCIS received over 160,000 initial H-1B petitions.

No lottery was held last year, where after the first week of filing, USCIS had received over 30,000 regular cap petitions and close to 20,000 master’s cap petitions. USCIS continued to accept applications for new H-1Bs until the limit was reached on December 21, 2009.

It appears that employers now have some flexibility in bringing on new H-1B workers for a start date of October 1, 2010 or later.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On April 1, 2010, Secretary of Labor Hilda L. Solis announced DOL’s “We Can Help” campaign in Chicago, where she told an audience of union leaders and community members that the DOL “will not allow anyone to be denied his or her rightful pay — especially when so many in our nation are working long, hard and often dangerous hours." 

The nationwide "We Can Help" campaign, spearheaded by DOL’s Wage and Hour Division (WHD), is an outreach program directed at the nation’s low-wage and “vulnerable” workers, such as workers in construction, janitorial services, hotels, food services and home health care services industries. The program also addresses topics such as rights in the workplace and how to file a complaint with the WHD to recover wages owed. Additionally, the campaign underscores the awareness that wage and hour laws apply to all workers in the U.S. regardless of their immigration status. In conjunction with this enforcement program, DOL has added more than 250 field investigators nationwide to help in this campaign.

Additionally, the inter-governmental agencies’ concerted enforcement efforts should not be overlooked. An immigration worksite visit could potentially involve a concurrent or subsequent DOL WHD audit and vice versa. In DOL’s efforts to protect the “vulnerable” workers in the U.S., it is yet to be seen if DOL will follow the Immigration and Customs Enforcement (ICE)’s lead in potentially offering incentives to undocumented workers in order to gain cooperation from them to detect and determine an employer’s liabilities.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Forbes.com recently explored the pitfalls faced by foreign business visitors attempting to enter the United States on short-term trips. Jackson Lewis’ Global Immigration practice group Partners Davis Bae and Sean Hanagan were quoted extensively. To read the article, click:

www.forbes.com/2010/03/04/how-to-get-us-visa-lifestyle-business-travel-visit.html

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Extraordinary Ability (EB1) immigrant visa category, as the name suggests, is set aside for immigrants who possess extraordinary ability in their fields. Unlike the case of other visa categories, individuals in this category may submit petitions for themselves. It also avoids the backlogs in other visa categories and is commonly used by artists, entertainers and researchers. 

To qualify, an individual must provide evidence of (1) a one-time achievement that is of a major, international significance (the Nobel Prize is the standard example), or (2) at least three out of ten lesser types of accomplishments, as defined by regulations.

Although the regulatory framework has remained unchanged for years, USCIS has varied its interpretation of “extraordinary.” Recently, it has sought to impose requirements beyond those included in the regulations. Rather than accept evidence of three lesser accomplishments to show extraordinary ability, USCIS routinely has required applicants to prove how each accomplishment shows that they are extraordinary. 

For example, the agency required a researcher to show how his publications have changed the way researchers viewed the area of science, even though the regulations only require the applicant to have authored publications. In another instance, the applicant was expected to show that he was selected to conduct peer review because of his extraordinary ability despite the fact the regulations require only that the individual has done peer review. 

 

Kazarian v. USCIS may help check the USCIS’s excesses, at least in the Ninth Circuit. On March 4, 2010, the Court found "neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations]." Specifically, the Court found improper the agency’s denial of a visa to Poghos Kazarian because of his failure to demonstrate the “research community's reactions to his publications." Ultimately, Kazarian did not qualify for the visa, but the Ninth Circuit’s affirmation that USCIS cannot impose new requirements on applicants arbitrarily is a major win for Extraordinary Ability applicants. (The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 

Start-up companies have always been a driving force in the U.S. economy. They are even more important in a down economy, as innovation drives job creation. While there are visa categories for entrepreneurs who invest their own capital, there is a gap in U.S. visa policy when it comes to entrepreneurs with great ideas who have established investors ready to back them financially. The current investor categories are limited by country of citizenship for temporary visas and by a minimum investment of $1 million ($500,000 in some cases) for green cards, making a permanent visa solution unlikely for the vast majority of would-be foreign national entrepreneurs in the United States. 

Senators John Kerry (D-Mass.) and Richard Lugar (R-Ind.) have introduced legislation proposing a new green card category for immigrant entrepreneurs who have secured at least $250,000 in funding from a qualified venture capitalist or “angel investor.” The bill is designed to drive job creation and increase the country’s global competitiveness by helping immigrant entrepreneurs secure permanent residence in the United States.

 

More than 160 venture capitalists from around the country have endorsed the bill, citing a restrictive visa policy that has forced many innovative entrepreneurs (and the corresponding creation of new jobs) to establish outside of the United States.

 

Jackson Lewis works with entrepreneurs and investors all over the world who wish to invest in the United States on opportunities which create jobs for Americans. If this bill is passed, the new visa category would substantially broaden the pool of potential investments for venture capital firms and help stimulate the U.S. economy. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

H-1B filing season is upon us again. The most often used work visa for Professional Workers is the H-1B. The H-1B has a limited availability of approximately 58,000 per year.  Despite the economy, these visas still are anticipated to be in high demand and become unavailable by the end of 2010.

Although, H-1B visas will be valid on October 1, 2010, a company may apply as early as April 1, 2010. Because of the high demand in this category, employers should file as early as possible. Indeed, the first week of April is recommended.

 

This H-1B quota applies to current or potential employees who are not in H-1B status, for example:

 

-          Employees currently in F-1 student status who are working on a limited duration work authorization;

-          Employees in TN, L, E or another status for whom the company may want to commence a green card process; and

-          Employees currently abroad who will move to a U.S.-based role in the fall.

 

Employees currently working based on H-1B status are not subject to this numerical limit, and therefore generally do not need to be concerned about this timing. 

 

Last year, the government did not meet the H-1B cap until December.  We anticipate that the filing window will be much shorter this year. Contact the Global Immigration practice group at Jackson Lewis as soon as possible to start the filing process.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

New legislation that would expand penalties for employers who knowingly hire unauthorized workers has been introduced in the House of Representatives. The “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627), introduced by Representative Frank Kratovil (D-Md.), would significantly increase imprisonment terms, criminal fines, and civil fines that can be levied against an employer or individual with “hiring authority.” A person with “hiring authority” is anyone who has “direct authority to make a decision to hire or to recruit or refer for a fee, an individual for employment.”

Currently, criminal penalties for knowingly hiring unauthorized workers apply only if a “pattern or practice” can be shown. An entity or individual may be fined $3,000 and an individual may be imprisoned for up to six months for the entire “pattern or practice.”

The proposed legislation would impose criminal penalties for each unauthorized worker, and criminal penalties would increase with each subsequent conviction:
- For a first offense, a fine of $2,500 and/or imprisonment of up to 1 year
- For a second offense, a fine of $5,000 and/or imprisonment for up to 2 years
- For a third or subsequent offense, a fine of $10,000 and/or imprisonment for up to 5 years

The bill also would increase the civil penalties assessed:
- For a first offense, a fine ranging from $1,000 – 5,000 (currently $250 – $1,000)
- For a second offense, a fine ranging from $5,000 – 10,000 (currently $2,000 – $5,000)
- For a third or subsequent offense, a fine ranging from $10,000 – 20,000 (currently $3,000 – $10,000)
 

 

Stay tuned as Jackson Lewis will continue to follow this legislation and update readers through this blog.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The USCIS has mandated sweeping changes in the use of H-1B visas, redefining the employer-employee relationship for third-party worksite placements pursuant to H-1B petitions, among other things. The changes, which have alarmed many employers, came in memorandum from the agency’s Associate Director of Service Center Operations, Donald Neufeld, this past January.

Although the “Neufeld Memo” arguably targets consulting companies which place professionals at third-party worksites, it also has a significant impact on U.S. employers who supplement their full time workforces with teams of both talented U.S. and foreign workers, considered consultants. In a recession, these consultants make up a significant portion of corporate workforces and are vital to many companies’ continued viability.

If fully implemented, the Neufeld Memo could result in denials of amendments and extensions of status for current H-1B visa holders. In addition, H-1B workers travelling internationally may face re-adjudication and denial of admission by Immigration officials at U.S. ports of entry. Lastly, this could result in potential revocations of status for H-1B visa holders should the USCIS conduct workplace site visits.

While challenges to the Neufeld Memo are mounted and considered, we will continue to guide clients on how to enhance chances of securing H-1B visa approvals under the Memo rule.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Employers who plan on filing for new H-1Bs this year shouldn’t rely on the flexibility experienced last year. Employer filings for FY2010 regular cap H-1Bs in 2009 did not reach the annual limit until late in December. Most employers who anticipated needing an H-1B worker for FY2010 filed on April 1. However, economic conditions resulted in substantially fewer H-1Bs being requested early. Thus, employers were able to hire H-1B employees throughout much of the year until the full FY2010 allotment had been requested. That’s unlikely to happen again in 2010.

H-1B visas generally are limited to an annual distribution of 65,000 per fiscal year. Immigration’s fiscal year begins on October 1, and petitions are accepted for the upcoming fiscal year beginning April 1. In recent years, substantially more petitions were received on April 1 for the upcoming fiscal year than H-1Bs available. In those situations, a lottery was held to determine which petitions would be considered.

Just as in years past, employers should plan to file for any needed FY2011 H-1Bs on the first day that petitions are accepted. Hiring should be planned in anticipation of a lack of H-1B availability, and employers should not depend on being able to hire H-1B employees as needed throughout the year like they were able to do last year.

Last year’s filing data reflects a dramatic increase in filings at the end of the calendar year. This certainly could indicate a change in hiring conditions that would result in a much shorter window of H-1B availability for FY2011.

Based on this increase, many predict that employers will not have the luxury this year of waiting until late December to obtain H-1Bs, although it is unlikely that a lottery will be held on April 1. So in anticipation, do not wait to plan your hiring needs, consult soon with your attorney, and file as soon as possible.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Many foreign workers are unaware of the immigration consequences of criminal pleading and plea agreements, especially with regard to crimes that many consider “minor” due to the minimal fines and lack of jail time. Unfortunately, not all criminal lawyers are aware of the immigration consequences either. For example, a plea agreement might be offered in response to a charge of possession of a nominal amount marijuana that would allow a U.S. citizen to pay a $200 fine and to walk away. However, the same plea deal can carry serious consequences for foreign workers, including the possibility of removal. Further, a U.S. citizen pleading guilty to a domestic dispute charge, which can be brought in many jurisdictions when a couple is observed engaging in a verbal altercation, may receive a mere 12-hour detention and possibly a nominal fine. A foreign worker, however, may face removal proceedings.

Discussing criminal issues directly with your employees may not be desirable, but new foreign workers should be advised of the fact that serious immigration issues can arise when they or their family members admit to a crime or accept a plea deal, even if the crime doesn’t seem “major.” Foreign workers should always consult immigration counsel if they or one of their family members are charged with any crime, especially before pleading or accepting any kind of plea deal.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Due to the dramatic increase in ICE worksite enforcement actions in 2009, employers are taking steps ensure their I-9 compliance, and utilizing such tools as internal audits, training, and implementation of I-9 software. I-9 software can often help to minimize the disorganization and clerical errors that can result in an absolute nightmare upon receipt of an ICE inspection notice. In response to growing employers’ compliance efforts, software companies are rushing “feature-rich” I-9 software packages to market. And while employers tend to scrutinize the user features available when selecting I-9 software, many are overlooking a vital feature – data security.

Once I-9 software has been implemented by your company, proper data security is required to protect your employees’ stored personal data. Minnesota state agencies using a Texas-based I-9 software provider with inadequate data security recently discovered that the personal data of nearly 500 employees may have been made accessible through the software provider’s web site, displaying employee names, dates of birth, hire dates, and Social Security numbers. This is a wake-up call to many employers that data security is a feature that cannot be overlooked when selecting I-9 software.
Employers should always ask their software provider to outline the software’s data security features. Compare them to features offered by other providers. Generally, you want to ensure that all user accounts are properly password protected, a sophisticated encryption method is used to encrypt the data, and if the data is stored remotely by the software provider, measures are taken to ensure that data is protected from external hackers and that the data is properly isolated to ensure that it is not erroneously accessed by another user.
I-9 software is an excellent tool to use in the quest for I-9 compliance, and a fear of a potential data compromise should not prevent you from implementation. Most software packages have adequate data security features, and a few have substantial ones. However, employers should be aware of the importance of data security when shopping for an I-9 software package, and should move data security to the top of their list of questions for their potential providers.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Are you subject to the Federal Acquisition Rule’s (FAR) E-Verify requirements?Many companies mistakenly think they are subject to FAR and therefore required to use the E-Verify System.

FAR sets out certain prerequisites for determining whether a government contract makes an employer subject to mandatory E-Verify Registration. For example, the contract period must be for at least 120 days and the contract value must be for at least $100,000. More importantly, however, the contract also must contain the FAR provision. Many employers seem to miss this point. They worry needlessly whether they should be using E-Verify when the clause is not in the contract. Existing contracts can be modified to include the clause, but until your contract is modified, or you receive a new contract with the FAR clause, you should not be subject to the E-verify requirement.

The contracting government official, not DHS or SSA (unless they also are the contracting agency), determines if you are subject to the requirement. In negotiating your contract, you can argue why you should not be subject in order to keep the clause out of the contract. For example, if you believe your product meets the commercially available off-the-shelf (“COTS”) exemption, try to persuade the contracting official to omit the clause from your contract in the first place.

While E-Verify is always an option for new hires, remember it can only be used for the entire workforce or employees assigned to the contract if you have a FAR clause. Using it in this context without the clause also is a violation.  Many issues surrounding the FAR E-verify clause remain unsettled as this is still a relatively new regulation. The government has been addressing questions as they arise and may issue a new Memorandum of Understanding in the future. Watch this blog for the latest developments on E-verify compliance and strategy.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Social Security Administration (SSA) No-Match Rule illustrates the problem employers can face when intensive government scrutiny is combined with a lack of government guidance. This problem was further exacerbated by the Citizenship and Immigration Services’ (CIS) announcement in November of 1,000 I-9 Audits.

This issue arose in 2007, when DHS issued guidelines for employers confronting SSA “No-Match” notices. However, the SSA initiative was enjoined quickly by federal court order and never took effect. Prior to the injunction, the SSA issued “No-Match” letters to employers on an annual basis, notifying them of employees whose social security information presented to employers did not match information contained in the government’s database. In some cases, the discrepancies were acknowledged to be SSA error, others resulted from name changes of which individuals had failed to inform SSA, and some pointed to possible fraud or identity theft by the employee.
Employers were left with little guidance, however, since the No- Match letters expressly cautioned against taking “personnel action solely based on this letter.” Employee advocates warned employers of discrimination issues, arguing that affected employees should be given many months to address the issue while remaining at work.

The No-Match Rule would have required employers to take concrete steps over a defined period to address employee social security discrepancies, or risk being charged with “constructive knowledge” that their employees were undocumented. Briefly, the Rules called for employers to check their records and to ask employees to resolve any discrepancies within 90 days. It also instructed employers to reverify an employee’s work authorization with documentation not listing the questioned social security number if the discrepancy could not be resolved within that timeframe.

Despite the government’s attempt to clarify the Rule and its justification through an economic impact analysis in March 2008, the No-Match Rule eventually was withdrawn and abandoned entirely under the new Administration.

After all this, employers are back to square one. They have to determine for themselves what steps to take when No-Match issues arise. With government audits on the increase, legal counsel have been getting more requests to advise on these issues. This blog will continue to update you on this developing area of the law.

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”) has been introduced by Rep. Luis V. Gutierrez (D. Ill.). The bill proposes a broad array of changes to the visa system, some of which may place additional burdens on employers:

Included in the bill, introduced on December 15, 2009, are measures to reduce immigrant visa backlogs for highly-skilled workers and expansion of the EB-5 investor immigrant visa program. There also are provisions for a new lottery-based temporary visa for unskilled workers and a special six-year visa to allow currently undocumented aliens an opportunity to apply for permanent residence through a points system.

The bill includes proposals for enhanced border security, employer immigration enforcement and employment authorization verification. In addition, the bill modifies existing policies to increase employer obligations for companies who utilize the H-1B, H-2B and L-1 Visa programs. Particularly troubling is the proposal to require recruitment prior to filing H-1B visa petitions.

While CIR ASAP contains interesting proposals for resolving the problems employers face in finding low-skilled workers who are in the U.S. lawfully, the measure does not offer employers much to ensure that they will be able to access the highly-skilled workers required by the U.S. economy. The proposal for a Commission on Immigration and Labor Markets will be particularly problematic for employers, as such a body is unlikely to be able to predict the need for various types of workers or respond timely to market changes. A self-adjusting, demand-based visa allocation system would better meet the needs of the economy.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This just in! As of December 8, 2009, approximately 61,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Look to this blog for ideas on how to find solutions to the H-1B cap being hit for fiscal Year 2010.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In 2008, Microsoft founder Bill Gates stated that the United States has a “[c]ritical shortfall of skilled scientists and engineers who can develop new breakthrough technologies.” He stressed, “Without people who have the skills necessary to drive the next wave of technology innovation, it will be impossible for the United States to retain its global innovation leadership.”

Regardless of the changes in the economy and political views toward immigration, statistics demonstrate a clear relationship between innovation and immigration. Over 50% of engineers and 45% of mathematicians, computer scientists, life scientists and physicists holding Ph.D.s currently working in the United States are foreign born. In addition, 29% of engineers, 37% of math and computer scientists and 25% of physicists holding Master’s degrees are foreign born. Approximately 25% of international patents filed in the United States in 2006 were submitted by immigrants.

The United States has long been the desired destination of immigrants worldwide. In recent years, there has been a major drop in levels of immigrants in “high IQ” positions. As the country seeks to regain its position as a global leader, it is essential to embrace those who can contribute to our intellectual capabilities. By creating a simpler and more accessible path to immigration, we can again attract the world’s talent, which will only increase our global competitiveness.

Some may argue that America was built on the backs of immigrants. To my mind, however,the best solution to our economic problems rests not on the backs of immigrants, but in the power of their minds.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

America’s rise through immigration creates a great irony. What we consider products of a distinctly American culture may not be “American” at all. Many would not exist but for the contribution of some amazing immigrants. On this Thanksgiving Day, let us recognize some of these extraordinary people.

The list of foreign-born Americans who shape our nation is awe inspiring. In business, there is Bjarne Stroustrup, Danish-born inventor of C++ (a computer programming language); Andrew Grove, Hungarian-born founder of Intel Corp.; Jenny Ming, Macau-born CEO of Old Navy; and Liz Claiborne, Belgian-born fashion designer.

In sports, there is racing great Mario Andretti, hockey legend Wayne Gretzky, tennis immortal Martina Navratilova and baseball phenomenon Ichiro Suzuki. The list in arts is extraordinary and includes Yo-Yo Ma, Michael J. Fox, Ansel Adams, Gloria Estefan, Sidney Poitier, Elizabeth Taylor, William Shatner, Neil Young and Eddie van Halen. Even American politics is greatly influenced by immigrants, including former Secretaries of State Madeleine Albright and Henry Kissinger, and entertainment/political crossover Arnold Schwarzenegger.

Why do these extraordinary people come to this country? Perhaps it is because the United States provides hope for those who want to maximize their talent and ability. Even the most powerful symbol of America, the Statue of Liberty, was designed by French artist Frederic-Auguste Bartholdi. It is, therefore, entirely fitting that “The New Colossus” bears the inscription “[I] lift my lamp beside the golden door."

The door is golden because of those who pass through it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link