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

In a departure from prior interpretations of H-1B sponsorship, a New York state court ruled an H-1B work visa application established an employment contract sufficient to support the employee’s breach of contract claim. Kausal v. Educational Products Information Exchange Institute, d/b/a EPIE Institute, 2013 N.Y. App. Div. LEXIS 2491 (NY Apr. 17, 2013).

Nikhil Kausal, a citizen of India, sued the employer for breach of contract and violation of the payment of wages requirement (Article 6) of the New York State Labor Code. The trial court rejected the plaintiff’s contention that the H-1B visa petition submitted by the employer to the Immigration and Naturalization Services is sufficient evidence of the formation of a contract between the plaintiff and the employer. The plaintiff appealed.

The appellate court, finding an enforceable contract, reversed the judgment. The appeals court said, “The plaintiff established the existence of an enforceable written employment agreement between himself and the defendant through the visa application executed by [the employer’s project manager], on behalf of the defendant, under oath.” The appeals court then found the plaintiff established the required elements of a cause of action to recover damages for breach of contract.

It is noteworthy that the contract violations found against EPIE also were violations of the Department of Labor wage requirements under the H-1B program since EPIE failed to pay the wages stated on the Labor Condition Application.  This factor may have steered the court to its decision, which is inconsistent with prior rulings throughout the county.  Unless the decision is challenged, employers in New York State who sponsor H-1B workers should be cautious about the terms stated on the H-1B petition. 

Employers also are reminded that when an H-1B visa holder is being terminated, the employer must send a letter notifying USCIS of the termination and request the withdrawal of the petition.  The terminated worker must be notified of the termination in writing and provided with a return ticket to the home country or its cash equivalent.  The employer may also withdraw the certified labor condition application submitted on behalf of the terminated worker.  The employer should keep evidence of bona fide termination and notifications sent to USCIS and the employee in the employee’s file. 

Trial court decision
http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_31001.pdf
 
Appellate court decision
http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D37982.pdf

• Email This
• Print

AUTHOR:  Nicola A. L. Prall.

As reported previously, CBP is eliminating the Form I-94, Arrival / Departure Record, the familiar white card that foreign nationals are asked to complete on the airplane prior to entering the United States. Beginning April 30, 2013, if a foreign national needs a copy of the I-94 card as evidence of his or her entry into the United States, he or she will need to go to www.cbp.gov/I94 and print his or her I-94 record. While this is not mandatory, we recommend that foreign national employees, especially those in the United States on temporary work permission, do so. The I-94 card, in conjunction with a foreign national employee’s visa and foreign passport, often is the “List A” document that confirms the foreign national’s ability to work in the United States. Having proof of this authorization is critical. Foreign national entering at airports and seaports that have eliminated the I-94 should log onto the CBP website after entry and check that all information is accurate and correct, particularly:

• spelling of names,
• personal information,
• visa category, and
• expiration date.

If errors are found, the foreign national should contact CBP.

The I-94 Automation Implementation Schedule begins on April 30, 2013, with Charlotte Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, and Miami International Airport. These locations are followed one week later, on May 7, 2013, by the airports and seaports in New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston. On May 14, 2013, the airports and seaports with Pre-Clearance, San Francisco (including Hawaii and Guam), Tucson, El Paso, Seattle, Portland (including Alaska), Los Angeles San Diego, and Laredo, will follow. All remaining airports and seaports will eliminate the Form I-94 on May 21, 2013.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno Ombok.

The Department of Homeland Security and the Department of Labor have issued a joint interim final rule that establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. This is in response to a March 21 district court decision, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, vacating a portion of the DOL 2008 H-2B Wage Rule (see Federal Court Vacates 2008 H-2B Wage Rule). 

The interim rule also responds to another court’s ruling that DOL does not have any authority over the H-2B program. The rule clarifies that DHS is the Executive Branch department charged with making determinations regarding eligibility for H-2B classification and that it consults with DOL about matters with which DOL has expertise, such as the methodology for setting the H-2B prevailing wage. 

The agencies stated, “Notwithstanding the Eleventh Circuit's decision in Bayou, or the Departments' joint issuance of this interim rule, DOL and DHS continue to maintain, as the Louisiana Forestry Association court held, that DOL does have independent legislative rulemaking authority for the H-2B program…. However, due to these inconsistent court rulings on DOL's authority to issue independent legislative rules, DOL and DHS are issuing this joint regulation revising the prevailing wage methodology in the H-2B program in order to respond to the court order in CATA v. Solis, and also to dispel questions regarding the respective roles of the two agencies and the validity of DOL's regulations as an appropriate way to implement the consultation specified in section 214(c)(1) of the INA.”

Under the interim rule, DOL will not use the four-level approach, which was vacated by the court, in its prevailing wage methodology.  The agencies stated, "The prevailing wage will no longer be the mean of the particular wage level, but will be the overall mean of all persons in the occupation in question." 

Key features of the rule:

(i) DOL will use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act, or employer-provided surveys, depending on the circumstances, to determine H-2B prevailing wages;
(ii) The prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question;
(iii) DOL will use the prevailing wage set by an applicable collective bargaining agreement where that agreement was reached after arms' length negotiations between the union and the employer;
(iv) The interim rule permits employers to use the Davis Bacon Act (DBA) or Service Contract Act (SCA) prevailing wage rate, if applicable, and an employer may offer a higher DBA or SCA rate if it chooses to do so; and
(v) Employers may present their own wage surveys, as in the 2008 wage rule, if they provide specific information about the survey methodology so DOL can determine the data accuracy and validity of the methodology and the data are collected within 24 months of the date of submission.

With the publication of the interim rule, DOL has resumed issuing prevailing wage determinations, and USCIS has also resumed adjudicating H-2B visa petitions.

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: Melina V. Villalobos.
 
As we previously blogged about on April 17th, a comprehensive immigration reform bill has been introduced in the U.S. Senate, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.  While many critics have focused on the new pathways for legal migration to the U.S. contained in the 850-page bill, the new bill contains some powerful enforcement provisions that employers need to keep at the forefront of their minds.
 
One such enforcement provision deals with E-Verify.  E-Verify is an internet-based system sponsored by the Department of Homeland Security that allows businesses to determine the eligibility of their employees to work in the United States.  E-Verify is seen as a tool to ensure that employers employ a legal workforce as well as provide a disincentive to individuals who seek to work illegally in this country.  E-Verify currently is mandatory only in a handful of states; however, the new legislation would make E-Verify mandatory for all employers across the nation.  The phase-in period, ranging from 90 days to four years, would vary according to the company’s number of employees.

In addition, the bill includes language indicating that employers will be presumed to have knowingly hired an unauthorized worker if they do not verify the individual’s work authorization via E-Verify after their mandatory enrollment date. The new bill would permit employers to utilize a three-day grace period for re-verifying the work authorization of employees with expired work authorization.  It also calls for the Social Security Administration (SSA) to create tamper-resistant Social Security Cards to combat document fraud.  Lastly, the new legislation provides for enhanced photo-matching tools to close-up loopholes that have allowed employees to circumvent E-Verify through identity-theft and ID-borrowing.

Jackson Lewis will continue to monitor developments surrounding comprehensive immigration reform and provide additional updates about issue-specific proposals as we continue to assess the proposed changes contemplated by this bill. 
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Davis C. Bae.

The USCIS announced on April 8, a week after it began accepting H-1B petitions, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. It received approximately 124,000 H-1B petitions, including petitions for the advanced degree exemption. This likely will mean that more than 40,000 applications will be rejected. Employers will not be able to obtain new H-1B visas for employees until October 1, 2015. (The H-1B quota generally does not affect current H-1B status holders who are being sponsored by a new employer.)

While the demand for H-1B visas is generally a strong indicator of the health of the U.S. economy, this does not help employers requiring qualified employees. Employers with rejected petitions will be scrambling for other options for their employees and candidates, many of whom are working under a different but expiring visa category.

Employers can look to other visa categories and solutions to extending work authorization.  Individuals from certain countries may be eligible for professional visa categories that mimic the H-1B. For example, Australians can qualify for E-3 visas, while Singaporean and Chileans can qualify for H-1B1 visas. Mexican and Canadian citizens may qualify for certain professional category positions under the TN category.

In addition, employers who utilize E-Verify may be able to extend the work authorization of F-1 students for an additional 17 months if the employee is a graduate of a STEM (Science, Technology, Engineering or Math) program. Lastly, other categories, such as the O-1, P-1, L-1, E-1/2 and B-1, may help employers bridge the H-1B visa shortage.

Employers are encouraged to consult their immigration counsel at Jackson Lewis to determine if one of these solutions is appropriate. The H-1B shortage highlights the need for immigration reform that supports our rebounding, but fragile, U.S. economy.

 

• Email This
• Print

Author:  Harry J. Joe.

Job shops and staffing firms use of H-1B visas, but that do not actually and directly employ the alien workers, that assign such workers to third-party worksites and otherwise bench (practice of placing H-1B visa holders in nonproductive status, without pay, while they wait for placement with other employers), and not pay such workers when work is not available can be open to government prosecution. The H-1B visa system was intended for the H-1B worker to perform services for the petitioning company. When employers fail to disclose in their visa petitions and labor condition applications for H-1B alien workers that the workers would be placed at third-party worksites, would be benched, would be paid only for work performed at such sites, would not be employed directly by the petitioning employer and at an employer’s place of business, and that they would not be paid a salary as represented in the filings, they can be criminally prosecuted for visa fraud, wire fraud, harboring, employment of unauthorized workers and money laundering. Both employers and their principals can be open to accusations of criminally misuse of the H-1B visa program.
 
A criminal indictment was filed on February 20, 2013, in the U.S. District Court for the Northern District of Texas against six principals of Dibon Solutions of Carrollton, Texas. It alleged Dibon, along with its six principals, engaged in an unlawful conspiracy to commit visa fraud by sponsoring foreign workers for H-1B visas with the stated purpose of working at Dibon Solutions’ headquarters in Carrollton. In fact, the workers provided services to third-party companies located elsewhere. Moreover, contrary to statements in the petitions and applications, Dibon only paid the workers an hourly wage for work performed at the third-party worksites and only if such third-parties first paid Dibon for the work. When not working, the workers were “benched” and not paid as required by H-1B labor condition application regulations.

The government’s theory of criminal liability was that the H-1B visa system was intended for the worker to perform services for the petitioning company, i.e., Dibon Solutions. Not informing or disclosing in its filings that the workers would be employed at or assigned to a location other than the Carrollton address is contrary to the stated requirements in the petition and the application.
 
The Dibon indictment further alleged the named defendants had unlawfully engaged in wire fraud. The government also is seeking forfeiture of assets procured by the defendants that arose from their criminal enterprise.
 
In its latest criminal prosecution, the government alleged on March 19, 2013, in the U.S. District Court for the Western District of North Carolina that Phani Raja Bhima Raju, founder and principal owner of iFuturistics, recruited and hired foreign nationals with specialized skills in computers and information technology so they could work at other U.S. companies
 
Raju and others were accused of knowingly and willfully conspiring to conceal in iFuturistics’ H-1B petition and labor condition application filings that the workers would be employed at other locations, the actual terms of their employment as to wages and hours of work, and that the workers would be benched. Raju and others also were accused of unlawfully misrepresenting the place of employment as Pineville, North Carolina, and falsely stating that the workers would be employed full-time and paid the stated salary. In fact, the workers were benched and not paid until assigned to a third-party worksite.

According to the allegations against Raju, a bona fide H-1B petitioning employer is a “valid employer,” not a “job agent,” “subcontractor,” or “hiring agent” and the valid employer could not engage in “benching.”

On March 22, 2013, Raju pleaded guilty to five federal charges, ranging from conspiracy to file fraudulent immigration documents to money laundering in a fraudulent scheme to obtain H-1B visas for foreign workers.

Moreover, iFuturistics was ordered by the USDOL Wage and Hour Division on January 4, 2013, to pay back wages to seven H-1B workers in the amount of $149,009.51 and civil monetary penalties of $18,000.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Michael Neifach.

On April 9, 2013, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register clarifying the date by which the new Form I-9 must be used instead of prior versions of the form.  Employers are advised that they must use the new Form I-9 beginning on May 7 or they will be subject to penalties under Section 274A of the Immigration and Nationalization Act (INA), 8 U.S.C. 1324a.  On March 8, USCIS released a revised version of the Form I-9.  The new Form includes significant changes including expanded instructions, new information fields, and a two-page format.  Although the new Form I-9 was for immediate use, employers were given 60 days to adapt their internal processes. USCIS instructions were unclear whether the last date that prior versions of the Form I-9 could be was May 7 or May 8.  The original Federal Register notice itself was internally inconsistent on this, indicating both dates in different sections of the notice.  The April 9, 2013 notice clarifies that prior versions of the form cannot be used beginning on May 7.

• Email This
• Print
• Comments
• Trackbacks

USCIS announced today that it "received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption." On April 7, 2013, these applications were processed through a computer-generated random selection process known as the lottery to determine which ones would receive the 65,000 visas generally allocated for H-1Bs as well as the 20,000 allocated for holders of advanced degrees from the US. USCIS will reject and return the petitions not selected in the lottery along with the filing fees.

http://www.uscis.gov/H-1B Cap

 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Davis C. Bae

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After April 5th, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

All cases received by the USCIS by April 5, 2013 will be eligible for the H-1B visa “lottery."  The lottery will be held to determine which of the applications received by April 5th will be considered, while all other applications will be rejected.
 
Jackson Lewis will continue to provide updates on USCIS announcements on this important issue for employers.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno B. Ombok

UPDATE:

On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court's decision on the 2008 wage rule.

http://www.foreignlaborcert.doleta.gov/news.cfm

Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court's decision on the wage rule.

******

In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL.  The court gave the DOL 30 days to comply.  Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013).  The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.”  The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process.  A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.    

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL.  The Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers,” according to the court.  Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

Links:
http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Sean G. Hanagan. 

This week the Department of Homeland Security’s Customs and Border Patrol (CBP) agency, which manages and protects US borders and ports of entry, announced the release of a new rule to automate the I-94 admission/departure process.  Once in effect, the rule will be implemented over a planned four week period, beginning at airports in Orlando, Chicago, Las Vegas, and Charlotte, and then expanding nationwide.   CBP recently met with stakeholders and explained that the current system, whereby foreign travelers entering the US receive a stamped paper card in their passports as proof of lawful admission, and then have the card removed when they depart, costs the agency in excess of $12 million per year in data entry costs through a government contractor.  As the same data is reportedly available digitally to CBP already, the move has been presented as a way to not only reduce government expenditures, but also to smooth travel into and out of the country and enhance the data integrity of these records.  Once the new system is implemented, international travelers will still have access to a paper I-94, and flyers to be handed out at airports and other ports of entry will direct anyone needing a hard copy of their I-94 record to visit www.cbp.gov/I94.  Visitors often need a hard copy of their I-94 form to demonstrate the ability to work legally in the United States or to obtain other benefits.  The new website will go live 30 days from the date the new rule is published in the Federal Register, the same date that the rule is anticipated to take effect.  It is unclear whether there will be a public comment period announced, so readers are encouraged to check back for updates. 

http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03212013.xml

Additional details and instructions available at:

http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml

• Email This
• Print
• Trackbacks

AUTHOR:  Rebecca Massiatte.

U.S. Citizenship and Immigration Service (USCIS) has announced a temporary adjustment to its premium processing practice for H-1B petitions for the fiscal year (FY) 2014. Requests for premium processing (15-calendar-day processing time, subject to USCIS request for additional evidence/information) of cap-subject H-1Bs received between April 1 and April 14, will be adjudicated starting April 15, 2013. Premium processing for non-cap H-1Bs and all other cases will begin as normal, when the request is received.

This move is necessary, USCIS explains, because it anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between the first day petitions are accepted, April 1, 2013, and April 5, 2013. Should this happen, FY 2014 could be the first time since April 2008 that the H-1B cap will require a lottery.

USCIS will accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the period that premium processing is unavailable (from April 1 to April 14).  Employers also may upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013, will be adjudicated when premium processing begins on April 15, 2013.

We strongly urge employers to consult with their Jackson Lewis immigration counsel to plan the filing of the necessary petitions.  We will continue to provide updates on the H-1B cap.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno B. Ombok.

On March 14, 2013, a member of the American Health Care Association (AHCA) testified before the House Education and Workforce Committee’s subcommittee on Workforce Protections hearing on the critical shortages of mid-level caregivers in the nation’s skilled nursing centers and its impact on the economy.  The hearing was held to examine the role of lower-skilled guest worker programs in the economy.  Representatives of the Essential Worker Immigration Coalition, the hotel industry, and the Southern Poverty Law Center also testified before the Subcommittee.  Health care employers have identified immigration reform and access to foreign workers as a critical issue for the industry.

Fred Benjamin, Chairman of the Kansas Health Care Association and COO of Medicalodges, Inc., a Kansas nursing home operator, represented AHCA.  Benjamin identified labor shortage as AHCA’s most pressing operating problem.  He stated, “The labor shortage deprives us of the most valuable resource we have, our caregivers. If we are to meet the expectations set for us, policymakers must act now to expand access to new pools of staff and take steps to encourage employment in long term care.”  In a recent study on the vacancy rate for nursing staff, AHCA found that there were approximately 60,000 vacant direct care staff positions as of 2010 — shortages that could worsen as nurses who retire and leave the profession are not replaced.  Another study by the U.S. Department of Health & Human Services (HHS) and the Department of Labor (DOL) estimates between 5.7 million and 6.5 million nurses, nurse aides, home health, and personal care workers will be needed in the coming years to care for the 27 million Americans who will require long-term care by 2050.  Finally, the Health Resources and Services Administration (HRSA) projects that, absent aggressive intervention, the supply of nurses in America will fall 36 percent (more than 1 million nurses) below requirements by the year 2020.

Benjamin testified that among the solutions Congress should consider to address the shortage is to “…increase staff supply, and there are many talented immigrants who are anxious to enter the caregiving field, yet are faced with insurmountable roadblocks. These talented caregivers should be given the opportunity to make a living and make a difference in their own lives and the lives of others. To increase the supply of labor, please give special consideration to permitting new entry for immigrants with nursing skills as well as increasing the pool of unskilled labor. We need a new immigration system that serves the economic needs of the U.S. economy.”  Members of the House subcommittee expressed the need to protect jobs for U.S. workers when designing any new low-skilled foreign guest worker program as part of a comprehensive immigration reform bill.

AHCA had earlier outlined its core principles for immigration reform as follows:

1. Letting business and industry play a leading role to help drive solutions with Congress.  Any visa program must give employers, not the government, primary say in which workers (and how many) they need to staff their businesses.
2. Creating a viable guestworker program that accommodates the needs of U.S. healthcare providers.  Employers should be allowed access to previously unused H-1B temporary work visas for nurses and physical therapists.
3. Waiving the cap on employment-based visas for nurses and physical therapists, speech therapists and those providing other therapies.

Jackson Lewis attorneys in the Immigration Group are available to assist healthcare employers with all their immigration needs, including visa sponsorships for physicians, nurses, physical therapists, speech therapists, J-1 waivers for physicians, and Form  I-9 and E-Verify compliance.    
 

• Email This
• Print
• Comments
• Trackbacks

Author: Amy L. Peck.

The Department of State's Bureau of Consular Affairs released on March 11th the April 2013 visa bulletin (available at http://travel.state.gov/visa/bulletin/bulletin_5900.html). Although the bulletin reports no significant progress was made in the employment-based categories, there was some progression.  Progress in priority date movement in employment-based categories includes EB-2 China moving from February 15, 2008 to April 1, 2008.  EB-3 All Chargeability Areas and EB-3 Mexico moved from May 1, 2007 to July 1, 2007. In addition, EB-3 China moved from January 22, 2007 to April 22, 2007.  Unfortunately, the EB-2 India category remained static. 

What has yet to be seen is the impact the recent federal budget sequester will have on the progression of visa priority dates.  Jackson Lewis attorneys will continue to follow the situation and provide employers with these and other immigration-related updates.
 

• Email This
• Print
• Comments
• Trackbacks

Employers who plan to file for new H-1B employment visas in FY2014 should be prepared to file by April 1, 2013. While H-1B usage has been lower over the last several years, increased demand caused the FY2013 cap to be reached on June 11, 2012, less than two months after USCIS began accepting petitions. H-1B visas generally are limited to 65,000 per fiscal year (85,000 when U.S. Master’s Degree holder visas are included). The immigration fiscal year begins on October 1, and petitions are accepted for the upcoming fiscal year beginning April 1. Therefore, employers should consider filing for needed FY2014 H-1Bs on the first day that petitions are accepted, and hiring should be planned in anticipation of a lack of H-1B availability.

• Email This
• Print
• Comments
• Trackbacks

In good news for employers faced with fines for immigration law violations, OCAHO has determined that, as a matter of discretion, a company with 17 violations involving failure to prepare or present I-9s and 59 failures to properly complete the I-9 section 2 attestation should have its fine decreased by nearly 50%, to $41,400. USA v. Fowler Equipment Co., Inc. The determination was made based on the record and statutory factors. Employers should continue to be diligent in ensuring their I-9s are properly completed.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Raazia Hall.

U.S. Immigration and Customs Enforcement is expected to publish the new Form I-9 (with a revision date of “(Rev. 03/08/13)N”) on March 8, 2013, in the Federal Register. https://www.federalregister.gov/articles/2013/03/08/2013-05327/introduction-of-the-revised-employment-eligibility-verification-form

Employers should begin using the new form to comply with their employment eligibility verification responsibilities.  There will be a 60-day transition period from the date of publication, after which no prior versions of Form 1-9 will be acceptable.  The new form has numerous changes from prior versions. Employers who fail to use Form I-9 (Rev. 03/08/13)N after that time may be subject to all applicable penalties as enforced by USCIS and the Department of Justice.

Employers may access the new Form I-9 (Rev. 03/08/13)N online by visiting www.uscis.gov.  To order USCIS forms, call 1-800-870-3676.  USCIS forms and information on immigration laws, regulations and procedures can be obtained by calling the National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central.  Jackson Lewis’ immigration attorneys are available to answer questions relating to the completion of the new form.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno Ombok.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the U.S. Department of Justice announced February 8  that it had reached a settlement agreement with Avant Healthcare Professionals LLC, a healthcare staffing company based in Casselberry, Florida, resolving allegations that the company had engaged in a pattern or practice of citizenship status discrimination by posting discriminatory job advertisements on the internet. 

The OSC’s investigation had found that the company’s internet-based job postings contained discriminatory language, impermissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers.  The Immigration and Nationality Act (INA) prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract.  None of those limited exceptions applied.  Under the terms of the settlement, Avant agreed to pay $27,750 in civil penalties, to change its internal policies and written procedures to incorporate the INA’s anti-discrimination protections, and to be submit to reporting and compliance monitoring requirements for three years.  For link, see http://www.justice.gov/opa/pr/2013/February/13-crt-173.html).
 
OSC is conducting random checks/audits of online postings, particularly of recruiters, job banks, and staffing companies to ensure compliance with INA anti-discriminatory provisions.  The OSC has published “Best Practices for Online Job Postings” which can be found at http://www.justice.gov/crt/about/osc/htm/best_practices.php.
 
INA’s anti-discrimination provisions also limit the type of questions employers can ask job applicants.  The OSC has approved two: 

• Are you legally authorized to work in the United States? (Yes or No).
• Will you now or in the future require sponsorship for an employment authoring status or visa?

Employers cannot ask whether a job applicant is a United States citizen before making an offer of employment, unless required by law.  Since US citizens, permanent residents, refugees and asylees all are protected from citizenship status discrimination, asking the question pre-offer could expose the employer to charges of discrimination.  By the same token, an employer may not ask additional questions about a job applicant's current visa status.
 
Generally, a U.S. employer is not obligated to sponsor a foreign national for a work visa.  The OSC has advised that an individual who requires employer sponsorship for a visa, such as an H-1B visa holder, is not a protected individual for citizenship status discrimination.  However, such individuals are protected against national origin discrimination.
 
While an employer is not obligated to sponsor a foreign national for a work visa, it may be obligated to do so if someone (such as a hiring manager, division chief, etc.) has promised to provide work visa sponsorship and if the foreign national relies upon that promise to his/her detriment.  In an environment of increased worksite enforcement employers should review their recruitment and hiring practices to ensure full compliance with the anti-discrimination immigration provisions pertaining to job advertisements as well permissible pre-hire inquiries in job applications.

 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: Michael Neifach.

The U.S. Chamber of Commerce and AFL-CIO have issued a joint statement of shared principles on a visa program for lesser-skilled foreign workers. http://www.aflcio.org/Press-Room/Press-Releases/Joint-Statement-of-Shared-Principles-by-U.S.-Chamber-of-Commerce-President-and-CEO-Thomas-J.-Donohue-AFL-CIO-President-Richard-Trumka.  As part of current immigration reform efforts, business and labor groups have been working together to find a mutually acceptable way of allowing employers ready access to foreign workers for jobs where insufficient numbers of U.S. workers are available while protecting the wages and conditions of all workers. The February 21 statement is a welcome development and follows previous reports that the two sides were far apart and talks may be breaking down. The failure to reach agreement for any such guest worker program is a key reason that comprehensive immigration reform legislation introduced in 2007 did not pass.

Following are the joint principles announced:

1. American workers should have the first opportunity at available jobs;
2. It must be recognized that even in tough economic times, there are instances where employers are unable to fill jobs with U.S. workers and that businesses must be able to hire foreign workers without going through a cumbersome and inefficient process; and
3. There should be a data-driven and transparent process to inform and address future labor shortages, and the executive branch should establish an independent bureau to inform Congress and the public on the issue.

Both groups acknowledge that much remains to be done. Nonetheless, their pledge to continue working together to find an acceptable solution for a guest worker program is important in maintaining momentum for comprehensive immigration reform legislation as the bi-partisan Senate group working on legislation continues with its efforts (see Immigration Reform Effort Reignites in Congress: Bi-partisan Senate Group Proposes Fix to U.S. System).

 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Kevin Lashus

President Barack Obama has identified immigration reform as the number one item on his domestic policy agenda.  On February 5, the new Congress held its first hearing on overhauling immigration laws.  The administration and legislature seem primed for action.

At the February 5th House Judiciary Committee hearing, the new House Judiciary Committee Chairman, Bob Goodlatte (R-Va.), noted there is agreement that “our nation’s immigration system is in desperate need of repair,” that it is “not working as efficiently and fairly as it should be,” and we need to “begin to explore ways to fix our broken system.”

Businesses should pay particularly close attention to the likelihood that any reform will include a mandatory E-Verify provision.  E-Verify, a system operated by the Department of Homeland Security’s U.S. Citizenship and Immigration Services and the Social Security Administration, verifies applicants’ work eligibility electronically.  At present, only employers in certain states and federal contractors are obligated to participate in the program.  Anticipated immigration reform legislation will change that.

Two bills  are relevant:

H.R. 478, sponsored by Congressman Phil Gingrey (R-Ga.), would “make the E-Verify Program permanent and mandatory, and to provide for certain changes to procedures for participants in the Program,” by amending the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 111 Stat. 3546 (Sept. 30, 1996).

S.B. 202, sponsored by Senator Charles Grassley (R-Ia.), would “expand the use of E-Verify, to hold employers accountable,” among other things.   Senator Grassley explained,

My legislation would increase penalties on employers who continue to hire people unauthorized to work in the country.  Employers would be required to check the status of current employees within 3 years, and would allow employers to run a check prior to offering a job, saving that employer valuable time and resources.  Employers will also be required to re-check those workers whose authorization is about to expire, such as those who come to the United States on temporary visas.

Any immigration reform likely will contain mandatory E-Verify provisions as these bills suggest.  Employers need to consider: (1) what is involved in E-Verifying new hires AND, potentially, the entire workforce, AND (2) what would it cost.

E-Verify is an expense.  Compliance would require a significant investment in human capital.  “False positives” would require further inquiry, taking additional HR effort and might result in the removal of workers.  According to E-Verify’s internal database audit, a national mandate would deem 1.2M to 3.5M legal employees initially ineligible to work.   It would challenge even the most robust HRIS systems.  Employers would need to create parallel E-Verify systems to existing I-9 processes.

The government’s study also projected 770,000 erroneous final non-confirmations, requiring employers to separate the affected employees. 

According to one estimate, by Bloomberg Government, businesses with fewer than 500 workers would bear 99 percent of the $2.7B participation cost, if E-Verify became mandatory.  A 2008 Congressional Budget Office report estimated that requiring E-Verify nationally would cut federal tax revenue by more than $17B.

Employers should examine their protocols to identify the impact various local, state, or federal versions of mandatory E-Verify may have on their compliance systems.  The most sophisticated compliance regime is only as good as the least focused member of the team.  There is nothing more exciting for a government prosecutor than finding a company that does not follow its own policies and procedures.  I-9 inspections and E-Verify review via Government data-mining activity is no different.

Policy development and training are key steps in a compliance regime. Spot audits and remedial education are critical.  Unfortunately, in many business operations   Form I-9 completion, necessary for satisfying E-Verify requirements for a new hire, falls to someone who has received only little instruction and has no inkling as to the significance of the verification.

To ensure that the regime is operating effectively, internal audits should be conducted routinely. The audits should ensure the existence of evidence demonstrating that those responsible for effectuating policies are competent.  Failures do occur. In our experience, however, the government will credit remediation as long as it is consistent, pursuant to an employer’s unique verification protocol, and is non-discriminatory.

To be sure, no one really knows what immigration reform is going to look like.  But E-verify, we believe, will be its centerpiece.  To prepare for that eventuality, these precautions are worth taking seriously now. 

The Senate Judiciary Committee will hold its first hearing on immigration reform, featuring testimony from Homeland Security Secretary Janet Napolitano, on February 13, 2013.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Maggie Murphy.

The Department of Labor (DOL) is launching an online registry to publish data from certified PERM and Labor Condition Applications filed via its online iCERT system.  The registry, expected to launch July 1, will include information about cases certified as far back as April 2009. New cases will be available as early as two business days after certification.  The registry will be a searchable database. Users will be able to pull up online information, as well as redacted PDF copies of the applications.  The DOL will redact employee names, employee personal information, employer FEINs and other sensitive information. The identities of employers who are sponsoring foreign nationals for employment and the positions involved, however, will be disclosed. As a result, the public will have more access to employment opportunities available by position, company, industry, and location.

Employers wishing to sponsor employees for nonimmigrant H-1B, H-1B1, E-3, H-2A and H-2B visa status for work in the U.S. must file a Labor Condition Application (LCA) with the DOL to attest to fair wage and labor standards. They must provide details regarding the occupation, working conditions, and work locations for which the employee is being sponsored.  Employers wishing to sponsor workers for permanent resident status in the U.S. often must start the process by filing a PERM Labor Certification Application with the DOL to attest that it has recruited for the position and cannot find any willing, qualified or able U.S. workers to fill the position. Both the LCA and the PERM applications are filed online (preferably), via the DOL’s iCERT database. 

Jackson Lewis has a national immigration team that routinely navigates the iCERT system for daily PERM and LCA filings. We will continue to track the progress of this registry and will inform you when more is known about information to be made public.
 

• Email This
• Print
• Comments
• Trackbacks

Employers who plan to file for new H-1B employment visas in FY2014 should be prepared to file by April 1, 2013.  H-1B visas generally are limited to a fiscal year distribution of 65,000 (85,000 when U.S. Master’s Degree holder visas are included). The immigration fiscal year begins on October 1. Petitions are accepted for the upcoming fiscal year beginning April 1. Until recently, substantially more petitions were received on April 1 for the upcoming fiscal year than the available H-1B numbers and a lottery was held to determine which petitions would be considered.

While H-1B usage has been lower over the last several years, recent demand has been increasing. The 2013 cap was reached on June 11.  Therefore, employers should consider filing for needed FY2014 H-1Bs on the first day that petitions are accepted, and hiring should be planned in anticipation of a lack of H-1Bs.  It is not clear yet whether a lottery will be needed for FY2014, but all signs point to the cap being reached very quickly. Do not wait to plan your hiring needs. Consult early with your attorney and file as soon as possible.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Jessie Feinstein.

On the heels of the immigration reform plan outlined by a bipartisan Senate group earlier this week, President Obama presented his own proposal for immigration reform in Las Vegas on January 29.   Although he promised reform in his first term, he believes that “now is the time.”   The bipartisan support is a good sign, the President said, expressing general agreement with the principles announced by the Senate group. 

In his speech, the President discussed the moral and economic impacts of immigration reform.  The United States is a nation of laws and of immigrants, he said, and that once “we” were “them.”  His plan focuses on enforcement, legalization and family unity. 

The proposal contains on four major themes, which will be fleshed out over the coming weeks:

Border Security:  The proposal will increase security at all ports of entry, fight trans-national crime, and attempt to eliminate visa and passport fraud.  Part of this will be done by creating liaisons with border communities.  Addressing the immigration court system to ensure there are enough judges will be a priority as will be providing help to those who cannot afford legal representation. 

Employment Enforcement: Targeting employers who are “gaming the system” by hiring undocumented workers will be a key element of the program.  There would be mandatory E-Verify for all employers (with some exceptions) over the next 5 years and increased penalties for employers who violate the laws. (This may presage an increase in the number of I-9 audits nationwide.)  Employees will be given protection related to confidentially, due process and workers rights. 

Earned Citizenship: The 11 million or so undocumented immigrants must be brought “out of the shadows” and put on a pathway to contributing to the economy and our nation, according to the President.  The individuals who qualify as DREAMers and certain agricultural workers would have an expedited path under his proposal.  All other qualified individuals would have to follow a procedure requiring background checks, English proficiency, and payment of fees and penalties.  Additionally, the backlogs for legal immigration must be eliminated before any of these individuals can begin the process to legalization.

Legal Immigration:  The proposal would work to eliminate the family and employment based visa backlogs by recapturing unused visas and temporarily increasing the annual visa allotment.  On an ongoing basis, the annual visa numbers allotted for family based categories would be increased by 15-20% and per country caps would be eliminated for employment based categories.  Also, STEM masters and PhD graduates would have a direct path to permanent residence so long as they have employment.  Finally, the President’s proposal would allow individuals to petitioner for same sex partners.

A more complete breakout of the president’s proposed plan can be found at: http://www.whitehouse.gov/the-press-office/2013/01/29/fact-sheet-fixing-our-broken-immigration-system-so-everyone-plays-rules. 

The President promised to send a bill to the House for an up or down vote if the house cannot deliver its own bill in the near future.  He does not want this issue to be delayed by political paralysis, the White House said.  If passed, the proposed legislation would significantly impact employers’ ability to attract and retain the best and brightest for the benefit of the country.  Jackson Lewis will continue to keep readers informed on these developments. 
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Anya Susarina.

On January 28, 2013, a bipartisan Senate group consisting of four Democrats (Charles Schumer of New York, Dick Durbin of Illinois, Robert Menendez of New Jersey and Michael Bennet of Colorado) and four Republicans (John McCain of Arizona, Lindsey Graham of South Carolina, Marco Rubio of Florida and Jeff Flake of Arizona) announced plans to introduce new immigration legislation.  The Senators said their bill will address securing the borders, verifying immigration status, and creating a path to citizenship for approximately 11 million illegal immigrants present in the U.S. 
 
A 5-page “Bipartisan Framework for Comprehensive Immigration Reform” 
(http://www.c-span.org/uploadedFiles/Content/Documents/Bipartisan-Framework-For-Immigration-Reform.pdf) summarizes the policies beingproposed. It addresses the following four goals:  

1. Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required;
2. Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families;
3. Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers; and,
4. Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers.

On January 25, 2013, President Obama met with leaders of the Congressional Hispanic Caucus to discuss the need to repair the “broken immigration system.”  On January 29, 2013 the President is scheduled to travel to Las Vegas to discuss his views on immigration reform.  See http://www.whitehouse.gov/the-press-office/2013/01/25/readout-presidents-meeting-congressional-hispanic-caucus-leadership.
  
The need to reinvigorate the U.S. immigration system has been on Washington’s agenda for some time.  In 2006, President Bush initiated an ambitious campaign for immigration changes, calling for securing the borders, facilitating a guest-worker program and implementing related legal reforms.  Immigration reform also was one of the main focuses of President Obama’s 2008 election campaign.  While the issue generated vigorous public debate, comprehensive change proved elusive. 
 
Demographic changes among voters and their impact in the recent U.S. presidential election reportedly have helped stimulate efforts to reach a bipartisan solution.  Many employers here are pushing for change, too. The present immigration system hinders their ability to acquire and retain global talent.  In May 2012, the Partnership for a New American Economy and Partnership for New York City published the critical assessment, “Not Coming to America”  http://www.renewoureconomy.org/sites/all/themes/pnae/not-coming-to-america.pdf.  Its title seemingly a play on the name of a popular 1988 motion picture, the report compares varying immigration policies around the world and the effect of those policies on economic growth.  According to the report, more than 40 percent of Fortune 500 companies in the U.S. were started either by an immigrant or a child of an immigrant. But that entrepreneurial infusion, it warns, may be a thing of the past.  Now, arcane and sclerotic backlogs, low visa quotas and onerous bureaucratic procedures hinder the country’s business development. Today’s announced reform legislation would make it easier for U.S. employers to compete for global talent and grow the economy.
 
Further developments are expected soon. 
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Jessie Feinstein

The United States Citizenship and Immigration Services (“USCIS”) has spent the last four years creating a one-stop shop for all laws, regulations and policy guidance it administers or promulgates.  USCIS will soon unveil “version 1.0” of its effort. The on-line USCIS Policy Manual (“Manual”) will go live at www.uscis.gov later this month.  Although the Manual was developed primarily for use by USCIS adjudicators, the agency the Manual is expected to be accessed and used just as frequently by the immigration community. 

USCIS Director, Alejandro Mayorkas on January 15, 2013, stated the intention of the Manual is to bring consistency, predictability and transparency to the legal authority and policies that drive USCIS petition adjudication.  Previously, to access the pertinent laws, regulations and policies related to a specific subject matter handled by the USCIS, one would have to pull from a number of different resources, independently housed by the issuing agency.  These resources included the Adjudicator’s Field Manual and a collection of memoranda, legislation, regulations and interpretive guidance coming from different agencies.  These materials will now be replaced by a centralized repository of all relevant policy guidance and legal authority.

According to the agency, the Manual strives to be user friendly, using logic and plain language to explain the rules.  The Manual will be organized sequentially from entry to naturalization and the topics will be presented by Volume – Part – Chapter and will be searchable.  Webinars on how to navigate the Manual as well as a short introductory video are available at www.uscis.gov.

For more information about the new Manual, go to uscis.gov or contact your Jackson Lewis immigration attorney. 
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  KoKo Huang.

With President Barack Obama’s inauguration and the start of his second term, the Administration is heralding yet another year of immigration compliance focused on sanctioning employers.  In recent remarks, the President stated that any immigration reform measures should contain penalties for companies that purposely hire undocumented workers.

The Administration’s focus on employer audits is not new.  Data from U.S. Immigration and Customs Enforcement (ICE) highlight how audits have become key to the Administration’s compliance efforts and illustrate their success.  In fiscal year 2012, ICE audited the I-9 forms of 3,000 employers.  Only 250 employers were audited in fiscal year 2007.  Along with the audits, the fines ICE assessed rose to $13 million in fiscal year 2012 from $1 million in fiscal year 2009.  The median fine in fiscal year 2011 was $11,000.  Managers of companies have been targeted as well—238 managers have been arrested in fiscal year 2011.  See http://www.dhs.gov/dhs-progress-2011-smart-and-effective-enforcement

While it may appear that industries which historically have hired immigrants for manual labor have been targeted, the audits actually result from random selection as well as leads from the public, other employers, and employees.  Brad Bench, a special agent in charge at ICE’s Seattle office, stated, “Geography is not a factor.  The size of the company is not a factor.  And the industry it’s in is not a factor.  We can audit any company anywhere of any size.”  ICE has audited stores; restaurants; bakeries; dairies; farms; and companies involved in manufacturing, construction, food packaging, janitorial services, and catering. 

Employers should complete their I-9 forms accurately and audit them internally on a regular basis.  If ICE audits an employer, these records will be at the focus of the audit.  The Jackson Lewis Immigration Practice Group can assist employers with any questions related to I-9 completion, verification, recordkeeping, and audits.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Nadine Trinh

In an effort to expedite visa processing for business travelers from Mexico, the U.S. State Department announced this month the expansion of its Business Facilitation Program (“BFP”) to all U.S. Consulates and Embassies in Mexico. To qualify for the program, participating employers in Mexico must meet one of the following requirements:

1) Be a branch, affiliate, or subsidiary of a U.S. company; or
2) Have at least 100 employees in Mexico; or
3) For companies with fewer than 100 employees, obtain a recommendation letter from the Mexico City American Chamber of Commerce ("AmCham"), Camara de Comercio de Mexico ("CANACO"), or Asociación Nacional de Importadores y Exportadores de la República Mexicana ("ANIERM") certifying that the company has been a member in good standing and paid its dues to the organization for at least 3 years.

To apply for membership in the BFP, companies must complete a 2-page questionnaire, identity 2-4 authorized company signatories, and provide corporate documentation describing the company and its U.S. branch, affiliate, subsidiary, or U.S. clients. Upon review of the application by the U.S. Consulate or Embassy, the company may be asked to provide additional documentation or to schedule a meeting with the reviewing officer before the application is approved.

Once the company has registered successfully with the U.S. Consulate or Embassy in Mexico, company representatives can schedule appointments and complete visa applications on behalf of their employees who then will receive expedited treatment of their visa applications. Participating BFP companies are expected to track and monitor employees who travel on business under the program and may be audited for compliance with program requirements.

While eligible employees must be employees of BFP participating companies, the U.S. Consulate or Embassy may consider contractors on a case-by-case basis. Spouses and children of eligible employees also may obtain dependent visas under this program.

If you need assistance in applying for BFP membership or would like more information about the BFP, please contact your Jackson Lewis attorney. 

• Email This
• Print
• Comments
• Trackbacks

AUTHORS:  Michael Neifach and Sean Hanagan.

Lawmakers return to Washington for the 113th Congress with comprehensive immigration reform once again moving to the front burner. Comments and proposals are being fielded by  prominent political figures, including former President George W. Bush http://trailblazersblog.dallasnews.com/2012/12/george-w-bush-debate-immigration-policy-with-a-benevolent-spirit.html/ and Senator Marco Rubio  http://online.wsj.com/article/SB10001424127887323442804578235844003050604.html.  These and similar calls for Congress to finally address the country’s immigration system, widely criticized as “broken” on both sides of the aisle, seem to be resonating with the White House, at least mildly http://www.washingtonpost.com/politics/citing-rubios-ideas-on-immigration-reform-white-house-sees-hope-for-bipartisan-deal/2013/01/15/d83f4102-5f48-11e2-9940-6fc488f3fecd_story.html.

The growth of bipartisan support for comprehensive immigration reform may move the Administration and Congress to initiate a new push to enact immigration reform legislation as early as this March.  Senate Majority Leader Harry Reid recently noted publicly that a bipartisan group of senators, led by Democratic Sens. Chuck Schumer and Dick Durbin and Republican Sens. John McCain and Lindsey Graham, have been crafting an immigration package and that this was to be “first thing” on the Senate’s agenda.  While the exact scope and language is still being discussed, all indications are that the Administration is looking to pass comprehensive legislation that addresses multiple elements of immigration reform.  Key elements of any comprehensive solution include: mandatory verification of legal status of newly hired workers, additional visa numbers for highly skilled immigrants and creation of a temporary guest-worker program.  Reform legislation also is expected to address the approximately 11 million individuals currently residing in the U.S. without legal status.
 
Employers have been grappling with a number of immigration-related issues, including increased government audits of I-9 records and heightened scrutiny on the use of temporary work visas.  Comprehensive immigration reform will have significant implications for all employers.  Employers should keep informed of proposed legislation in order to anticipate changes that could affect future hiring, staffing, and related workplace operations.  
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Sean Hanagan

The current version of Employment Eligibility Verification Form I-9 (http://www.uscis.gov/files/form/i-9.pdf), which all employers must use when on-boarding new hires, expired on 8/31/2012.

USCIS announced a proposed new form for public comment on March 27, 2012 (http://tinyurl.com/aogxuy2), but after receiving thousands of comments and calls from stakeholders to extend the comment period, the expiration date passed with no final form release.  As a temporary fix, USCIS advises on their I-9 Central overview page that “until further notice, employers should continue to use the currently available form [even after expiration]…”  (http://tinyurl.com/c96fsr).  

At long last, the release of the new version of the form is reportedly imminent, but with no concrete release date yet.  The Jackson Lewis Immigration Group is closely monitoring the situation, and we are developing a webinar that will be finalized once the form has been released.  Please stand by for additional details and the webinar announcement.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHORS:  Amy Peck and Melina Villalobos

Employers are well aware that just one work-related accident or illness can result in medical expenses, rehabilitation services, and liability compensation. This can be the case whether the accident or illness involves a legal or illegal worker. A recent Nebraska Supreme Court decision is a reminder that undocumented aliens also may bring workers’ compensation claims.  In Moyera v. Quality Pork International, 284 Neb. 963 (Jan. 4, 2013), the Nebraska Supreme Court held that the Nebraska Workers’ Compensation Act applies to undocumented aliens and these employees could be entitled to permanent total disability benefits (PTD benefits) for work-related injuries.  Indeed, courts in the following states have found that undocumented employees are covered by their state workers’ compensation systems:  (1) Florida, (2) Kansas, (3) Kentucky, (4) Maryland, (5) New Jersey, (6) North Carolina, (7) Ohio, (8) Oklahoma, and (9) Pennsylvania.  Thus, this is another reason for carefully managing the hiring process — to ensure that your workforce does not include aliens who are not authorized to work.

From a compliance standpoint, employers can avoid potential liability for PTD benefits for work-related injuries with an I-9 compliance audit accompanied by ongoing training initiatives aimed at preventing the hiring of employees who do not possess lawful work authorization.  Such initiatives should not be undertaken without the assistance of competent legal counsel to help navigate the murky waters of immigration compliance.   Jackson Lewis attorneys are available to assist employers with these immigration compliance issues and other workplace requirements.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno Ombok

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of January 4, 2013, it has received 22,769 petitions for temporary workers under the H-2B nonimmigrant visa program. This number counts toward the 33,000 H-2B cap for the first half of FY2013, which ends March 31.  Of this number, 18,996 are approved and 3,773 are pending petitions.  

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.  Before requesting H-2B classification from the USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor.

The cap for H-2B visas is set by Congress at 66,000 per fiscal year, 33,000 are allocated for employment beginning in the first half of the fiscal year (October 1 - March 31) and 33,000 are allocated for employment beginning in the 2nd half (April 1 – September 30).  Any unused numbers from the first half are rolled over for use during the second half of the year.  However, unused H-2B numbers are not carried over from one fiscal year to the next.

Employers should consider filing H-2B petitions before the cap for the first half of the fiscal year is reached.  Current holders of H-2B visas are not affected by the cap. USCIS will continue to process petitions to:

• Extend the stay of current H-2B holders
• Hire roe processors, fish roe technicians and/or supervisors of fish roe processing
• Hire H-2B workers in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam (provision will sunset on December 31, 2014)

Employers also should initiate the labor application process for the second half of the year now.  

Employers may continue to file H-2B applications under the 2008 H-2B Rule until DOL’s 2012 H-2B Final Rule takes effect.  The 2012 H-2B Final Rule, published on February 21, 2012, would have taken effect on April 23, 2012, but was enjoined by a district court on April 26, 2012 (Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, 3:12-cv-00183 (MCK-CJK)).  The 2012 H-2B Final Rule would have significantly changed the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers. 

The preliminary injunction raised doubts about the DOL’s underlying authority with respect to the H-2B program and DOL advised employers to continue to “file H–2B labor certification applications under the 2008 H–2B Rule, using those procedures and forms associated with the 2008 H–2B Rule for which the Department has received an emergency extension under the Paperwork Reduction Act.”  The agency acknowledged the doubts by stating, “…please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and DHS’s regulations to issue the labor certifications that are a necessary predicate for the admission of H–2B workers.” 

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice Group.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Anya Susarina

By the end of 2012, Immigration and Customs Enforcement’s (ICE) efforts in I-9 audits broke previous records:  it inspected more than 3,000 businesses for I-9 employment eligibility verification compliance and issued nearly $13 million in fines.  To put these numbers into perspective, ICE conducted only 250 workplace compliance audits in 2007; 503 in 2008; 1,444 in 2009; 2,000 in 2010; and 2,496 in 2011. ICE has offices in all 50 states and employs more than 20,000 people.

Immigration law (8 U.S.C. § 1324a (b)) requires employers to verify the employment eligibility of each employee by completing and maintaining Form I-9.  ICE can audit any company on a random basis or following a lead from the public, other companies, or employees at the workplace.  The inspection process is initiated by issuance of a Notice of Inspection (NOI), which compels the employer to provide its Forms I-9 for inspection.  Violating employers may receive civil and even criminal penalties, the latter applying to those who knowingly hire and continue to employ illegal immigrants.

The official purpose of the ICE audits is to promote immigration compliance.  However, many employers are fined for poor record keeping rather than for breaking immigration laws.  Hence, good record keeping practices are essential to staying clear of fines.  The Jackson Lewis Immigration Group is experienced in helping employers to create and implement employee I-9 verification procedures and programs that meet ICE standards.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Rob Neale

Two end-of-year legislative efforts point to immigration reform as being front-and-center in the new 2013 legislative session.  Republicans wasted no time in addressing immigration following the recent presidential election, in which Latino and other immigrant voters gave more of their support to President Barack Obama.

On November 30, 2012, the House of Representatives passed a bill that would have granted up to 55,000 immigrant visas (green cards) to foreign nationals who graduate from a U.S. university with an advanced degree in science, technology, engineering or math (known as the “STEM” fields).  To avoid increasing the overall number of immigrant visas issued each year, the STEM bill would have abolished the same number of immigrant visas issued annually under the “Diversity Visa Lottery” program, an annual lottery that awards green cards to individuals from countries with low immigration to the United States.

Senate leadership quickly blocked consideration of the STEM bill.  While Democrats voiced their support of providing more immigrant visas for STEM graduates, they disagreed that the Diversity Visa Lottery should be eliminated to achieve that goal.  Senators stated their concern of abolishing the Diversity Visa Lottery because the program gives permanent residency to many under-represented immigrants from Africa and Eastern Europe who would otherwise be excluded.

In the Senate, on November 23, 2012, two Republican senators introduced legislation called the “Achieve Act,” which would provide legal status for certain young undocumented immigrants who entered the U.S. prior to the age of 14.  The Act would not grant permanent residency (green cards) to applicants, and instead grant renewable temporary status assuming that the applicant continued to qualify.  Unlike the Democrat-backed DREAM Act, the Republican plan carries no path to permanent residence status or U.S. citizenship.  No action was taken on the measure prior to the end of the 112th Congress. 

The introduction of targeted immigration legislation is a precursor to what is expected to be a larger focus on immigration reform in the new Congress..  The key sticking point on Comprehensive Immigration Reform (CIR) in the past has been what to do about the millions of people currently in the country illegally.  As Congress addresses immigration reform in the upcoming session, employers should keep abreast of changes to immigration law and policy and to seek counsel on legal issues new Government policies may create.  Jackson Lewis will continue to monitor all legislative action that may impact an employer’s ability to hire and retain global talent.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Harry J. Joe

The United States Citizenship and Immigration Services announced on December 12, 2012 that effective February 1, 2013, all foreign nationals who receive an immigrant visa package issued by the United States Consulate or Embassy abroad will be required to pay an “immigrant fee” for the issuance of the new permanent resident card or “green card.” This new payment  is in addition to the immigrant visa application processing fees paid to the National Visa Center and to the Consulate or Embassy abroad, but does not apply to immigrant children who are entering the United States under an inter-country adoption program.

Failure to pay the new “immigrant fee” will not preclude the admissibility of the foreign national with the immigrant visa package nor will it affect his or her permanent resident status after entry Until such payment has been made, however, the new permanent resident card will not be processed and issued. Newly arriving immigrants who do not make the required payment will be admitted and provided with an I-94 Arrival and Departure Record card, evidencing their permanent resident status, but such document will be valid for only one year. Upon expiration, the permanent resident card will be the only available evidence of lawful permanent resident status.

In its announcement, the USCIS encourages new immigrants to make the required payment after he or she has received the immigrant visa package from the United States Consulate or Embassy abroad and prior to being admitted into the United States. The payment must be made online through the USCIS website. The immigrant fee can be paid directly by the immigrant or by a third party on his or her behalf.  The online payment can be drawn from a checking account maintained at a U.S. bank or from a debit or credit card.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Nadine Trinh

This time last year, USCIS Director Alejandro Mayorkas announced a new Entrepreneur in Residence (EIR) initiative to create jobs in the U.S. Now, USCIS has launched a new Entrepreneur Pathways website designed to give visa information to foreign entrepreneurs who want to start a new business in the United States. The website offers a Nonimmigrant Visa Guide describing the visa categories available to foreign entrepreneurs and provides an overview of the pre- and post-visa application process.

According to USCIS, the EIR team, comprised of startup experts from the private sector along with USCIS immigration experts,  accomplished the following as of November 2012.  It

• Conducted a training workshop for USCIS employment-based immigration officers focusing on entrepreneurs and the environment for startup companies and early-stage innovations;
• Trained a team of immigration officers to handle entrepreneur and startup nonimmigrant visa cases;
• Modified Request for Evidence (RFE) templates for certain nonimmigrant visa categories to accept new sources of evidence related to entrepreneurs and startup companies; and
• Developed a plan for quarterly engagements with the entrepreneurial community across the U.S.

As part of his vision for immigration reform, President Barack Obama has indicated that he supports a “startup visa” that would allow foreign entrepreneurs who receive financing from U.S. investors to come to the U.S. to start their businesses. The visa also would allow foreign entrepreneurs to remain permanently in the U.S. if their companies create jobs for American workers and generate revenue.

Foreign entrepreneurs should take note that some of the nonimmigrant visa categories listed on the Entrepreneur Pathways website do not provide automatic work authorization upon admission to the U.S. For example, B-1 business visitors may conduct business on behalf of a foreign entity and be paid from a foreign source, but are not authorized to engage in productive employment in the U.S. Additionally, F-1 students in Optional Practical Training must apply for and obtain authorization from USCIS before they are authorized to work in the U.S.

For more information on nonimmigrant visa eligibility requirements and work authorization issues, please contact your Jackson Lewis attorney.

• Email This
• Print
• Comments
• Trackbacks

AUTHORS: Amy L. Peck and Melina V. Villalobos

Much of the focus regarding employee verification compliance centers on the mechanics of I-9 completion and the possibility of high civil penalties for noncompliance. However, as employers strive to ensure compliance with employment verification laws, they must also ensure that they are not discriminating against individuals who are authorized to work. It is important to keep in mind that while Immigration and Customs Enforcement and the typical I-9 audit focus on possible violations under the Immigration and Nationality Act (INA) § 274A, the employer must still balance these documentation requirements with the Anti-Discrimination and Unfair Immigration-Related Employment Practices which fall under INA § 274B.
 

A North Carolina company has found how difficult it can be to strike the proper balance between adhering to employment verification laws regarding I-9 completion and avoiding the violation of the Immigration and Nationality Act’s anti-discrimination provisions. On November 30, 2012, the U.S. Department of Justice announced that it reached a settlement agreement with Gamewell Mechanical, Inc., a Salisbury, N.C.-based subsidiary of Woodfin Heating, Inc., resolving claims that the company violated the anti-discrimination provision of the INA when it terminated three employees it incorrectly assumed were undocumented foreign nationals. In fact, the employees were U.S. citizens.
 

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) began to investigate the company when a charge of discrimination was filed by one of the three terminated employees who were U.S. citizens. The OSC enforces the anti-discrimination provision (§ 274B) of the INA, 8 U.S.C. § 1324b. This law prohibits:

1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee,
2) national origin discrimination in hiring, firing, or recruitment or referral for a fee,
3) document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process), and
4) retaliation or intimidation. 

The investigation revealed that Gamewell officials had received information that six other workers were undocumented foreign nationals and incorrectly assumed the three U.S. citizens were similarly not authorized to work in the United States.
In the settlement agreement, Gamewell agreed to pay back wages of $10,560 and $9,600 in federal penalties. In addition, it will train its human resources staff to avoid discrimination in the employment verification process. It also will be subject to compliance monitoring by federal officials and reporting requirements for 18 months.
 

Violations of § 274B can expose employers to civil penalties ranging from $100-$1,000 per violation. In addition, other penalties can include:

• An order to cease and desist the prohibited practice and engage in one or more corrective action
• A requirement to hire the injured individuals
• A requirement to pay up to two years of back pay for the time prior to the date the complaint was filed with OSC
• A requirement to post notices about employees’ rights
• A requirement to educate personnel involved in hiring
• An order to remove false performance reviews
• A requirement to compile for government review information on all applicants for job openings up to a three-year period; and
• A requirement to pay the complainant’s attorney’s fees
 

Employers should consider making the Anti-Discriminatory and Unfair Immigration-Related Employment Practices an integral part of their compliance audit, whether it is conducted by internal personnel or external counsel. The Practices should be included in any training program involving an employer’s hiring practice, as well as the subject of periodic review.
 

Jackson Lewis attorneys are available to assist employers with immigration enforcement issues and other workplace requirements.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Otieno Ombok

At a time when other states, such as New York, are liberalizing their MD licensure requirements for foreign physicians, Texas appears to be headed in the opposite direction. In an unprecedented move likely to affect the ability of hospitals and physician groups in Texas to hire foreign physicians, the Texas Medical Board has enacted changes to the licensure requirements and restrictions on physicians who are not U.S. citizens or permanent residents.  Physicians applying for Texas medical license who are not U.S. citizens, U.S. permanent residents or conditional permanent residents are subject to a mandatory service requirement beginning September 1, 2012.  The new requirement, authorized in Section §155.0045 of the Medical Practice Act, Texas Occupation Code, requires such physicians to practice full-time, for three years, in a medically underserved area (MUA), a Health Professional Shortage Area (HPSA) in Texas, or at a Texas institution that maintains a graduate medical education program. The new rule exempts physician-applicants who practiced medicine in Texas prior to September 1, 2012, for at least one year under a postgraduate training permit, temporary license, or limited license, or who submitted an initial application for full licensure prior to September 1, 2012.  Full-time practice is defined as a minimum of 20 hours a week for a 40-week duration in a given year.  See http://www.tmb.state.tx.us/professionals/physicians/applicants/mandatoryServiceRequirement.php

Until recently, New York generally restricted issuance of full MD license only to U.S. citizens and permanent residents.  The State allowed issuance of a limited license to foreign physicians on work visas, provided they work in a medically underserved area.  However, a federal appeals court, in Dandamudi v. Tisch, 2012 WL 2763281 (2d Cir. July 10, 2012), held the New York statute barring persons who were not U.S. citizens or legal permanent residents from obtaining a pharmacist’s license is unconstitutional and violates the Equal Protection Clause.  Following this decision, New York now issues unlimited licenses in various professions to qualifying foreign professionals, without restrictions.  The New York education department has confirmed that it no longer issues limited licenses, only unrestricted licenses.  For physicians, New York will issue an unrestricted license to H-1B physicians, regardless of the employer’s/facility’s health shortage designation.  This means foreign physicians in New York on work visas, such as H-1B, may work in hospitals that are not located in medically underserved areas (provided they are not subject to the three-year J-1 waiver service requirement).

Employers in Texas should consider the new requirement when recruiting foreign physicians, particularly those coming out of residency/fellowship training and those already on work visas with other employers.  While the mandatory service requirement is unlikely to affect J-1 waiver foreign physicians coming out of residency/fellowship training as they generally will have to work three years in an underserved area as a condition of their J-1 waiver, the requirement is likely to adversely impact out-of-state J-1 waiver physicians or those who have undertaken their graduate medical training in H-1B visa status.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Sujata Ajmera

In an effort to streamline the visa renewal process, the U.S. Consulates in India, some of the busiest U.S. visa application posts in the world, have been granting visa interview waivers to certain B-1/B-2, H-4, and L-2 visa applicants. To further streamline the process, these Consulates will now grant a waiver of the nonimmigrant visa interview for qualifying H, L, F, and J visa applicants.   This new option will likely alleviate some of the lengthy visa appointment times that applicants often endure.

Participants in the interview waiver program can either utilize the Dropbox application option or the general Interview Waiver Program option (which includes new biometrics), depending on when their previous visa was received.  Under both application methods, qualifying individuals must have a previous U.S. visa issued in India, and the renewal request must be for a visa in the same class. Additionally, the previous visa must have been issued after the applicant’s 14th birthday, and the applicant cannot have an annotated visa (i.e., one with “Clearance Received”).  Further, the applicant cannot have any prior visa refusals in any category and the most recent visa cannot have been lost or stolen.

The Interview Waiver Program expansion does not apply to Blanket L visa applicants. However, individual H or L applicants are eligible if their prior visa was in the same classification with the same petitioning employer, and that visa is valid or expired within the last 12 months.

To apply, the applicant must pay the appropriate fees and complete the Nonimmigrant Visa Electronic Application (DS-160).  The applicant then must register an account at https://cgifederal.secure.force.com/?language=English&country=India and schedule an interview.  If the applicant meets the Dropbox Requirements (previous visa received after November 1, 2008), he or she will receive a submission letter with instructions.  If the applicant meets the Interview Waiver Requirements (previous visa received after August 1, 2004), he or she will be prompted to schedule a biometrics appointment and given other instructions on the application process.

Submission of a nonimmigrant visa application through the interview waiver program does not guarantee the applicant will not have to appear at a Consulate for an interview.  However, if the application for an interview waiver is accepted, the applicant will be able pick up his or her passport with the new visa at a designated Document Collection Center

Jackson Lewis will continue to monitor the availability and successful implementation of the visa interview waiver program at the U.S. Consulates in India.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHORS: Davis Bae and Peter Nohle

On November 19th, The USCIS electronically released Guidance for employers on the Deferred Action for Childhood Arrivals (DACA) Program. http://www.uscis.gov/USCIS/Humanitarian/Deferred%20Action%20for%20Childhood%20Arrivals/DACA-Fact-Sheet-I-9_Guidance-for-employers.pdf  .   In this Guidance, USCIS instructs employers to follow standard new hire procedures for DACA Applicants; however the guidance provided for “existing Employees” is inconsistent with previous guidelines.  Under the most recent DACA guidance, if an employer receives updated I-9 information from an existing employee, the employer should either complete a new Form I-9 or complete Section 3 of an existing Form I-9 depending on whether information changes in Section 1.

Specifically, if the employee’s information in Section 1 has not changed, the guidance instructs employers to simply complete Section 3 and re-verify the employee’s work authorization documentation.  If, however, the employee’s identifying information in Section 1 has changed, the guidance states that the employee and employer should complete a new Form I-9.  This includes information such as the employee’s  name, birth date, and social security number (if provided).  This instruction to complete a new I-9 is not consistent with previous I-9 compliance guidance where changes to an employee’s name, birth date, attestation or social security number did not require completion of a new Form I-9.
 
The USCIS guidance is also inconsistent for employers who utilize E-Verify.  Under this new guidance, when an employer is completing a new Form I-9 for a (new or existing) employee, the employer should initiate a new case in E-Verify for the same employee.  Previous USCIS and ICE  guidance was that only employees who have been re-hired should have their information resubmitted to E-verify.

The Office of Special Counsel, which prosecutes claims of discriminatory immigration practices, generally advises employers to avoid claims of discrimination by applying I-9 policies consistently amongst all employees.  This DACA Guidance potentially opens  employers to claims of discriminatory practice by creating different rules for individuals who can claim relief under DACA from the rules that apply to other employees. 

Employers should be aware that their decisions relating to treatment of DACA beneficiaries may implicate aspects of employee relations well beyond  immigration issues. For example, it is not hard to imagine a situation where an employee covered by the DACA advises his current employer that he originally lied about his identity on an employment application, but is now legal to work due to DACA relief.   Employers in this situation must grapple with what level of disciplinary action against the employee is appropriate due to  the admission of  misrepresentation, and will need to consider how this decision may affect future enforcement  of policies on honesty in the workplace.   Other employees who are considered for discipline based on honesty-related issues may point to  employer’s treatment of the  DACA employee and hold an expectation of consistent treatment.
 
Although the recent election results clear up the question of whether the DACA Program will continue, this recent guidance from USCIS highlights the difficulty for employers in implementing policy regarding DACA beneficiaries.  Approximately 12,000,000 people are in the United States without authorized status.  As legislative discussions continue to address immigration reform, employers are advised not only to stay abreast of changes to immigration law and policy but should also seek counsel on the complex practical issues new policies like DACA can create, such as those explored here. 
 

• Email This
• Print
• Trackbacks

Author: Harry J. Joe

In May, 2012, the United States Federal District Court overturned General Ordinance No. 5988 under the grounds of Federal preemption. This ordinance required all businesses conducting work within the city to use E-Verify on all employees and to provide identity and employment authorization documentation of its workers. An employer or business that failed to comply faced civil fines and revocation of its business license or permit.

The controversial E-Verify ordinance was enacted in February, 2012, and a group of Springfield, Missouri business subsequently filed suit seeking to strike down the ordinance. The plaintiffs contended that the E-Verify ordinance placed Springfield’s businesses at a competitive disadvantage by “piling on more city regulations in an area of the law pervasively covered by Federal law.”

On September 20, 2012, the plaintiff businesses and the City of Springfield reached a settlement and filed an offer of judgment and acceptance of judgment that essentially nullified the E-Verify requirements. The city conceded that only the E-Verify portions of the ordinance were enforceable in view of the Supreme Court’s recent ruling on Arizona’s SB 1070 law. In addition, the City of Springfield agreed to pay the sum of $45,350 as attorney fees to the plaintiffs.

The successful lawsuit brought by the Springfield businesses reflect the growing frustration of employers with state and local efforts to place additional layers of regulatory requirements regarding their workforce.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: Michael Neifach

The U.S. Department of Justice (DOJ) has announced a settlement with Tuscany Hotel and Casino LLC in Las Vegas resolving a complaint alleging that the company treated non-citizens differently from U.S. citizens during the employment eligibility verification and re-verification process.DOJ alleged that the casino required non-citizen employees to provide more or different documents than citizen employees during the initial I-9 verification process, as well as during re-verification.  In addition, senior company human resources personnel were alleged to have more closely scrutinized documents provided by non-citizen employees.  
 
Pursuant to the settlement agreement, released on October 10, 2012, the company agreed to pay $49,000 in civil penalties to the United States and full back pay to an employee.  The company also agreed to implement new employment eligibility verification policies and procedures to ensure that all employees are treated equally regardless of citizenship status, and to conduct HR training designed to avoid discrimination in the employment eligibility verification process. 

The complaint was initiated by the DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324B. 

With ongoing I-9 enforcement activity by Immigration and Customs Enforcement (ICE), employers should understand that strict compliance with I-9 verification requirements is not optional.  At the same time, as OSC continues to step up anti-discrimination enforcement, employers must ensure that they are not violating the anti-discrimination provisions of the INA unknowingly during the employment verification process.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Melina Villalobos

The Tennessee Department of Labor has begun enforcement of the Tennessee Lawful Employment Act (TLEA).  The TLEA went into effect in January of 2012.  (See our article, Tennessee Adopts Worker-Verification Law.)  Under the Act, employers with more than six employees must either use E-Verify or make and retain copies of one of 11 documents specified in the Act. The documents include: 1) A Tennessee driver's license, 2) a valid driver's license issued in another state where the issuance requirements are at least as strict as those in Tennessee, 3) a birth certificate issued by a state, jurisdiction or territory, 4) a U.S. government-issued birth certificate, 5) a valid, unexpired U.S. passport, 6) a U.S. certificate of birth abroad (DS-1350 or FS-545), 7) a report of birth abroad of a citizen of the U.S. (FS-240), 8) a certificate of citizenship (N560 or N561), 9) a certificate of naturalization (N550, N570, or N578), 10) a U.S. citizen identification card (I-197 or I-179), and 11) a valid alien registration document or other proof of current immigration registration.

Private employers with 500 or more employees must be in compliance as of January 1, 2012.  Those with 200-499 employees must be in compliance as of July 1, 2012. Those employers with 6-199 employees must be in compliance by January 1, 2013.  The DOL states that in determining the number of employees, the employer must count ALL employees, regardless of whether or not they are physically in Tennessee. 

The state requires employers to retain documents relating to this law for three years after the date of employment or one year from the date of termination, whichever is later. (This mirrors the I-9 retention period.)

Stiff penalties can be imposed against an employer who violates the TLEA.  Possible penalties include civil fines of $500-$2,500 per unverified employee, depending on whether or not the employer is a repeat offender. In addition, possible suspension of business licenses and inclusion on a DOL-maintained publicly accessible list is likely.

Some uncertainty remains regarding the enforceability of fines under this law in the wake of last year’s Supreme Court decision on Arizona’s immigration law, but employers should not risk non-compliance.  Any employer with a presence in Tennessee and more than 200 employees needs to comply with this law.

Employers can find further information from the Tennessee Department of Labor (http://www.tn.gov/labor-wfd/eVerify/index.shtml) or by contacting your Jackson Lewis attorney.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  Jeffrey W. Toppel

An Arizona federal court judge has dissolved a preliminary injunction that was blocking enforcement of a controversial provision of Arizona’s Senate Bill 1070.  Under the provision, law enforcement officials are required to determine the immigration status of any person stopped under state or local law if reasonable suspicion exists that the person is unlawfully present in the U.S.  The provision was the only portion of S.B. 1070 to have survived the U.S. Supreme Court’s June 25, 2012 (see U.S. Supreme Court Holds Several Provisions of Arizona's Immigration Bill Preempted, But Most Controversial Provision Survives).

The U.S. Supreme Court held that parts of S.B. 1070, including those portions that would have made it a crime for an illegal immigrant to apply for jobs or for an immigrant not to carry identification, were preempted by the federal government’s authority to regulation immigration matters.  In upholding the “stop and check” provision of S.B. 1070, the divided Supreme Court concluded that the provision could be interpreted so as to escape federal preemption and, therefore, it should be allowed to be implemented.  In so doing, however, the majority noted that its decision did not foreclose future preemption and constitutional challenges to the law.

Now that the preliminary injunction has been dissolved, law enforcement officials in Arizona may move forward to implement the “stop and check” provision, which Arizona Governor Jan Brewer described as the “heart of S.B. 1070” following the Supreme Court’s ruling.

This is certainly not the end of the legal drama that has followed Arizona’s enactment of several immigration laws over the last few years.  We can expect to see new lawsuits as state and local law enforcement officials begin to implement the “stop and check” provision of S.B. 1070.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: Jessie Feinstein

The U.S. Embassy in India has announced that a new system for visa processing will be implemented beginning on September 26, 2012.    The Embassy’s new website, www.ustraveldocs.com/in, facilitates many of the changes and is available in English and Hindi.  
 

The biggest change is that a new appointment will be necessary prior to the visa interview.  The applicant will first make an appointment with the Offsite Facilitation Center (OFC) to get fingerprints and photos taken.   Once an applicant goes to the OFC, he or she will not need to go again for subsequent visa appointments.   Currently, the OFC appointment cannot be scheduled on the same day as the visa interview, but the Embassy hopes that this will change.

Another significant change is that passports, visas, immigrant visa packets and other documents will be delivered to 33 pickup locations across India.  This means applicants need not return to the consulate or embassy to collect the documents.  The applicant chooses a pick up location when he or she schedules the visa interview.  Once the documents are ready, the applicant will be notified that the documents can be picked up. 

There are also some changes to the way in which the interview and fees are processed.  In addition to scheduling appointments online, applicants will be able to make appointments by phone.  They can have questions answered by phone, email or by way of an online chat with a call center agent via the new website. 

New ways to pay the visa fees have been added.  In addition to paying online, applicants can pay by Electronic Fund Transfer (EFT), mobile phone, or cash at over 1,800 Axis and Citibank branches.  Fees also can be paid in bulk and the system will allow scheduling of group and emergency appointments. 

If you have any questions regarding these changes, please contact an immigration lawyer at Jackson Lewis. 

• Email This
• Print
• Comments
• Trackbacks

AUTHORS: AMY L. PECK & MELINA V. VILLALOBOS 

Reverse discrimination is defined as the practice or policy of favoring individuals belonging to groups known to have been discriminated against previously.  Reverse discrimination is often alleged, but difficult to prove. A recent class action settlement, however, has revealed that a documented preference for hiring Latino workers who are ineligible to work in the U.S. may not only make an employer liable for immigration violations, but also reverse discrimination.

On August 20, 2012, Howard Industries, Inc., one of Mississippi’s largest employers, agreed to pay $1.3 million to settle a class action suit claiming the company showed favoritism to Latino employees and discriminated against all non-Latino employees.  The settlement, if approved, would certify a class of all black and non-Hispanic white applicants who applied for work at Howard between January 1, 2003, and August 25, 2008, but were not hired.

The suit was filed after Howard pleaded guilty in February 2011 to charges that it concealed undocumented workers from federal immigration authorities.  The charges were the result of an August 2008 federal immigration raid of Howard’s Laurel, Mississippi, plant in which agents found 592 illegal immigrants working there.  Howard agreed to a $2.5 million fine and a year of probation after pleading guilty to violating immigration law.   

A day after Howard’s guilty plea, four black women filed the class action suit, alleging that they repeatedly were denied jobs at the company’s Laurel plant and that Howard “refused to hire non-Latino job applicants, or considered their applications with disfavor, due to their race.”  The plaintiffs claimed they were denied employment despite passing examinations and drug tests required by the company, and all four were hired shortly after the August 2008 immigration raid.

“Howard Industries devised, implemented, carried out, and controlled an employment policy whereby Latino job applicants, all or nearly all being undocumented … immigrants, were given preferential treatment in hiring,” the complaint said.  Court documents involving the company’s alleged criminal immigration violations alleged that Howard’s former human resources director routinely hired undocumented workers, telling them they would be warned if immigration agents were coming for inspection.

Jackson Lewis attorneys are available to discuss the implications of this settlement and other workplace issues.
 

• Email This
• Print
• Comments
• Trackbacks

On Thursday, August 23, 2012, the U.S. Citizenship and Immigration Services (USCIS) announced that it has published a revised version of the new Form I-9 for comment.  The comment period runs through September 21, 2012.

Some of the key revisions to the new form include:

• Maiden Name is changed to Other Names Used
• Includes clarification of distinction between A-Number and USCIS Number
• Section 2 is modified to list Employer or “Authorized Representative”

http://www.gpo.gov/fdsys/pkg/FR-2012-08-22/pdf/2012-20631.pdf

For additional discussion, please see our March 28 blog post:  http://www.globalimmigrationblog.com/2012/03/articles/uscis/uscis-seeks-public-comment-on-new-i9-form

 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  HARRY J. JOE

Employers that use the H-2B non-immigrant visa program to obtain unskilled workers from outside the U.S. may need to increase their budgets for these workers following a federal judge’s decision upholding the Department of Labor’s authority to issue a new wage order. U.S. District Court Judge Legrome D. Davis has upheld the validity of the Department of Homeland Security’s delegation of authority to the DOL to create regulations for setting the prevailing wage rates to be paid by employers to unskilled alien workers in the United States under the H-2B visa program.  The Louisiana Forestry Ass’n et al. v. Solis, et al., No. 11-7687 (E.D. Pa. Aug. 20, 2012). Employers that participate in the H-2B visa program anticipate they could be required to pay up to $847 million in wages to H-2B workers as a result of the DOL’s new Wage Methodology for Temporary Non-agricultural Employment H-2B Program (the Wage Rule). The Wage Rule is scheduled to become effective on October 1, 2012.

The H-2B visa program enables employers in the U.S. to secure visas for foreign unskilled non-agricultural temporary workers for temporary employment in the U.S. Under current law, up to 66,000 H-2B visas are available on an annual basis. As a prerequisite, employers must obtain a temporary labor certification from the DOL that establishes that U.S. workers are not able, willing, qualified and available to perform the offered employment at the prevailing wage rate. As a part of the temporary labor certification process, the DOL must determine the prevailing wage rate for the offered employment and employers are required to conduct recruitment for U.S. workers offering a wage not less than the prevailing wage rate.

The DOL Wage and Hour Division is responsible for investigating violations and conducting enforcement actions against H-2B employers.  An employer who fails to pay the required prevailing wage rate is subject to back pay orders, civil fines, and debarment from the H-2B program. 

The plaintiffs in the case before the court, consisting of employer associations representing the logging, lodging, sugar cane production, amusement park and seafood processing industries, challenged the authority of the DOL to create and implement the new Wage Rule and the authority of the DHS to delegate such authority to the DOL under the Homeland Security Act of 2002.

Citing the DOL’s role in administering the H-2B temporary labor certification process, which included the setting of prevailing wage rates under the Immigration and Nationality Act of 1952, as amended, and the agency’s continuing role under the Immigration Reform and Control Act of 1986, Judge Davis held that DHS acted reasonably in designating the DOL as a consulting agency. He concluded, “The DOL’s labor certification is reasonably connected to the DHS’s ultimate determination whether a foreign worker admitted under an H-2B visa would displace a capable unemployed United States worker….Therefore, the DHS may condition its grant of an H-2B visa on receiving a labor certification from the DOL. The ultimate decision making authority still remains with the DHS.”

Barring further judicial action or administrative agency delays, H-2B employers in the U.S. will be required to be in compliance with all stated requirements, including providing non-H-2B employees the same wages and benefits accorded to H-2B workers for doing substantially the same work.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  RAAZIA HALL

A federal appeals court in Atlanta has struck down portions of Georgia’s controversial “Illegal Immigration Reform and Enforcement Act” (H.B. 87) prohibiting the transportation, concealing, or harboring of illegal aliens.  Relying heavily on the recent, highly publicized Supreme Court decision in Arizona v. United States, the Circuit Court found that Section 7 of the measure is preempted by federal law.  However, the U.S. Court of Appeals for the Eleventh Circuit also upheld another provision of the statute, Section 8, authorizing law enforcement officers to investigate a criminal suspect’s immigration status in certain circumstances.  See Georgia Latino Alliance for Human Rights, et al. v. Georgia, Case 11-13044 (11th Cir. Aug. 20, 2012).

In April, 2011 Georgia enacted House Bill 87.  Opponents of the law, quickly challenged its constitutionality.  On June 27, 2011 the U.S. District Court gave the challengers a partial victory. Leaving intact provisions requiring the use of E-Verify, imposing heavy fines for the use of fake identification to obtain employment, and requiring certain forms of identification to obtain public benefits, the District Court issued an injunction against the enforcement of two provisions of the law:  One that requires law enforcement officers to check the immigration status of suspects who cannot provide identification (Section 8) and the other that punishes suspects who intentionally transport or house someone in the country illegally (Section 7).  The District Court found that these provisions were in conflict with federal statutes.

On August 20, 2012 the Court of Appeals ruled on the blocked provisions. It found that federal immigration regulations issued under the Immigration and Nationality Act broadly covered the field of immigration, so that state laws in the area, such as Section 7, were not permissible, regardless of whether they complemented the federal law.  The court went as far as to note that this section presented an obstacle to the execution of federal law.  It therefore affirmed the District Court on this issue.

Section 8, nicknamed the “show-me-your-papers law,” however, was upheld as lawful.  This ruling was not surprising.  A similar provision in the Arizona law had been sustained by the Supreme Court.  The Circuit Court did reiterate the same concerns as the Supreme Court had expressed earlier in Arizona, that the law could lead to racial profiling, but noted that “reliance on race, color, or national origin that is constitutionally prohibited is expressly forbidden by the Georgia statute.”  Reasoning that “it is inappropriate for us to assume that the state will disregard its own law,” the Circuit Court nevertheless kept the door open for challenge if the law was applied unconstitutionally.

This decision accords with the Supreme Court’s decision that state laws encroaching on subjects regulated by federal law such as immigration may be struck down where Congress has intended its statutes to control the field.  “We must recognize the supremacy of the federal law,” the Court wrote.

• Email This
• Print
• Comments
• Trackbacks

AUTHOR:  KEVIN LASHUS

United States Citizenship and Immigration Services (USCIS) has announced that employers should continue using the Form I-9 currently available in the forms section of http://www.uscis.gov  until further notice.

All employers should use the form even after August 31, 2012, when the current OMB control number expires.  USCIS will provide updated information about the new version of the Form I-9 as it becomes available.

Employers must complete a Form I-9 for each newly-hired employee to verify the individual’s identity and authorization to work in the United States.  Failure to comply with this obligation may result in criminal prosecution.  Even paperwork violations expose employers to administrative fines of upwards of $1,100 perform.  So, it is critical that all employers make verification compliance a high priority.

Please contact the Jackson Lewis immigration attorney with whom you regularly work for additional guidance.
 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: NICOLA AI LING PRALL

The Center for Immigration Studies has published a detailed analysis of state-level E-Verify policies. Sixteen states require E-Verify in some form. According to the CIS report, South Carolina’s audit process has been the most robust, making the compliance rate with its law high and more effective than laws in states that do not have an active audit process. South Carolina is one of six states that require all or nearly all employers to use E-Verify. The other five states requiring use of E-Verify by all employers are Arizona, Mississippi, South Carolina, Alabama, Georgia, and North Carolina.

Five states require public employers and public contractors and subcontractors to use E-Verify: Indiana, Nebraska, Oklahoma, Virginia, and Missouri.

Three other states require only public contractors to use E-Verify: Louisiana, Minnesota, and Pennsylvania. Pennsylvania passed its E-Verify law on July 5, 2012.

In Idaho, only public employers are required to use E-Verify. Finally, in Florida, by Executive Order, only state agencies under direction of the Governor are required to use E-Verify.

In this rapidly changing area, and with the U.S. Supreme Court’s blessing of Arizona’s E-Verify law in Chamber of Commerce v. Whiting, employers can expect that more states will require E-Verify. The CIS report provides insight and detailed information regarding the “nuts and bolts” of the E-Verify law in each of these 16 states where E-Verify is required.

To help employers stay in compliance, USCIS has released “self assessments” that provide checklists for employers regarding E-Verify. USCIS guides are available for download for direct users and web services users.

Jackson Lewis immigration attorneys are available to answer questions about E-Verify.
 

• Email This
• Print
• Comments
• Trackbacks

 

AUTHOR: MICHAEL NEIFACH

A plaintiff has no claim for breach of contract or a Fifth Amendment “taking” for the detention and damage of his laptop computer by U.S. Immigration and Customs Enforcement (ICE), the U.S. Court of Appeals in the Federal Circuit has ruled. Kam-Almaz v. U.S., 2012 U.S. App. LEXIS 12581 (Fed. Cir. June 20, 2012).

Majd Kam-Almaz, a U.S. citizen employed in international disaster relief assistance, on April 7, 2006, was detained as a “person of interest” by U.S. Immigration and Customs Enforcement (ICE) at Dulles International Airport on his way home from a business trip abroad. He was accused of no wrongdoing. His laptop computer and two flash drives were taken for review by ICE border agents. Kam-Almaz was provided a receipt and told his property would be returned within 30 days. In fact, the computer hard drive failed while being examined by ICE, destroying much of Kam-Almaz business software.
Kam-Almaz sued the federal government, alleging breach of an implied-in-fact contract and an unlawful taking under the Fifth Amendment. He claimed damages totaling $469,480 due to lost business contracts resulting from his inability to access his computer files as well as replacement hardware, software, and warranty costs.
 

On June 20, 2012, the Court of Appeals for the Federal Circuit affirmed the lower court decision to dismiss Kam-Almaz’s claims. The Court found: 1) there was no implied-in-fact contract when ICE agents detained the laptop and flash drives, and 2) “property seized and retained pursuant to the government’s police power is not taken for a public use within the context of the Fifth Amendment’s Takings Clause.”

For international business travelers, this is a warning that in conducting routine border searches of personal effects, including laptop computers, and in detaining and inspecting this property, even without a warrant, U.S. law enforcement is given wide latitude, and it may be difficult for those who suffer economic harm as a consequence of possible mistakes to obtain recompense from the government. Employers and international business travelers should keep in mind that while ICE and Customs and Border Protection (CBP) have developed guidelines for secure and efficient handling and return of laptops and flash drives, sensitive business-related information can be compromised or destroyed without any adequate legal recourse against the government.  Employers should consult with counsel to discuss the ways to minimize the risks of border searches in the first place and how to effectively engage with U.S. border enforcement agencies where sensitive equipment and information has been seized.
 

• Email This
• Print
• Comments
• Trackbacks

The U.S. Supreme Court has issued its much anticipated decision on Arizona’s controversial immigration statute, Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). In so doing, the Court affirmed, in a 5-3 decision, the Ninth Circuit of Appeals, agreeing that the U.S. Department of Justice (“DOJ”) had established a likelihood of success that three of the four challenged provisions of S.B. 1070 are preempted by federal immigration law. Arizona v. United States, No. 11-182 (June 25, 2012).

Among the three provisions that the Court found to be preempted is Section 5(C) of the Act, which makes it a criminal misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state. According to the Court,

[federal] IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work — aliens who already face the possibility of employer exploitation because of their removable status — would be inconsistent with federal policy and objectives.

Therefore, the majority found Section 5(C) was preempted because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

With respect to Section 2(B) of the Act, which contains a requirement that law enforcement officers check a person's immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally, the Court held that it “would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.” However, in reaching this conclusion, the majority of the Court stated that it was not foreclosing “other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

This marks the second decision by the U.S. Supreme Court in as many years on immigration legislation passed by the Arizona legislature. In May 2011, the Court rejected preemption arguments made by groups challenging the Legal Arizona Workers Act (“LAWA”), which imposes sanctions on employers that knowingly or intentionally hire unauthorized workers and requires employers to participate in the federal E-Verify program.

Jackson Lewis will provide a more thorough analysis of the Supreme Court’s decision in Arizona v. U.S. shortly. In the meantime, the firm’s attorneys are available to answer any questions that you may have regarding the Court’s decision.
 

• Email This
• Print
• Comments
• Trackbacks

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced that Semafor Technologies LLC in Norcross, Georgia, has agreed to pay 73 employees $741,288 in back wages following an investigation by the WHD.  The June 12, 2012, announcement is the result of an investigation that found the company failed to pay 54 foreign H-1B workers for periods of time during which they were nonproductive because the company did not assign any work and failed to reimburse five workers for various processing fees related to their employment.  Also, an additional 14 workers were neither reimbursed for processing fees nor paid for periods without assigned work.

H-1B regulations prevent employers from “benching” H-1B workers.  This means employers must continue to pay workers even if there is no work to be performed.  Employers also are prohibited from forcing employees to take leave without paying them their wages.  Employers are not responsible, however, for wages when employees take voluntary leave.  In addition, H-1B regulations generally make it a violation for employees to pay business expenses, which include fees associated with obtaining an H-1B visa.  Employers who violate either of these provisions will be subject to back wages and penalties, and can face debarment from the H-1B program altogether.  It is important that employers filing H-1B petitions be fully aware of and can comply with their obligations under the program.
 

• Email This
• Print
• Comments
• Trackbacks

The DREAM Act (Development, Relief, and Education for Alien Minors) is a bipartisan bill that has failed in Congress time and again since its initial proposal in 2001. The basic tenets of the Act would provide conditional temporary residency to certain illegal immigrants if the individuals are of good moral character, have graduated from U.S. high schools, have arrived in the United States as minors and have lived in the country continuously for at least five years.

On June 15th, President Barack Obama announced he will implement part of the DREAM Act. The administration is going use its prosecutorial discretion to not prosecute those who might be eligible under the Act. Instead, USCIS will focus on the removal of foreign nationals (“illegal immigrants”) that pose a greater threat (e.g., those with a criminal background).

Candidates for the new initiative must meet the following criteria:

1) Have entered the U.S. before age 16 and be less than 30 years old
2) Have been present in the U.S. for five years as of June 15, 2012
3) Have maintained continuous residence in the United States
4) Have not been convicted of one serious crime or multiple minor crimes
5) Be currently in school, have graduated from high school, have a GED, or have enlisted in the military

Qualifying individuals may be granted deferred action (i.e., will not be removed) by ICE or USCIS and could become eligible for work authorization cards. Although, this is not technically the same as “legal status” or a path to legal status or permanent residency, employers might feel a significant impact because it will expand the pool of available younger workers. In particular, businesses in the hospitality, restaurant, retail and agricultural industries might see increases in eligible workers.

The official press release from DHS can be found here http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

Jackson Lewis will continue to follow developments on this initiative and its effect on employers.
 

• Email This
• Print
• Comments
• Trackbacks

 

AUTHOR : JESSICA FEINSTEIN

In early 2005, USCIS created the Benefit Fraud and Compliance Assessment (BFCA) program. The program was developed to “evaluate the integrity of various nonimmigrant and immigrant benefit programs” by reviewing petitions and applications for factors related to fraud.

The BFCA completed an assessment of the H-1B program in 2008. They reviewed 246 H-1B petitions drawn from over 96,000 approved, denied or pending cases filed between October 1, 2005, and March 31, 2006. The purpose was to investigate all levels of fraud, technical violations, and abuse in the H-1B program based on a “snapshot” in time. After reviewing the petition for technical violations, a site visit was conducted to corroborate the information provided in the petition.

The investigation uncovered 51 petitions (or 20%) that were fraudulent or contained one or more technical violations. Of the 51 cases, 33 (13%) were found to contain fraud. The most common form of fraud (10% of all violations) was forged or fraudulent documents. The study identified the following indicators for fraud:

1. Petitioner has 25 or fewer employees
2. Petitioner has annual gross income of less than $10 million
3. Petitioner has been in existence for fewer than 10 years
4. Positions in accounting, human resources, business analysis, sales and advertising occupations are involved
5. Beneficiaries with bachelor degrees had a higher fraud rate than those with graduate degrees

Using the data in the BFCA assessment, Donald Neufeld, Acting Associate Director, Domestic Operations for USCIS, issued a memorandum on October 31, 2008, advising the Adjudicating Officers (AOs) when to send a case to the Center Fraud Detection Office (CFDO). The memo was not available to the public until recently. AILA (American Immigration Lawyers Association) secured a copy and released it on AILA InfoNet on May 22, 2012. The memo issues guidance on how to “mark” H-1B petitions that may be fraudulent. AOs are instructed to review an H-1B petition with a “heightened possibility for fraud” if certain factors exist. An AO must complete a Fraud Referral sheet prior to sending the petition to the CFDO.

The memo also references the CFDO “Compliance Review Report” to be used when performing an H-1B site visit. Site visits have become increasingly prevalent in the last 12 months. The report lays out what the officer should look for and includes a worksheet to follow. The “Site Inspection” report outlines questions relating to the bona fides of the business as well as specific questions related to the beneficiary.

The memo provides employers with helpful guidance for petitions and responding to site visits. A petition that meets at least two factors USCIS has identified should alert the employer it may be subjected to additional questions and even an inspection. Adequate preparation would go a long way to securing successful petitions.

 

 

• Email This
• Print
• Comments
• Trackbacks

AUTHOR: SUJATA AJMERA

Senator Charles Grassley, a Ranking Member of the Senate Committee on the Judiciary, has requested the Comptroller General of the United States and the Government Accountability Office (GAO) to “fully investigate” certain aspects of the Optional Practical Training (OPT) program. The OPT program allows foreign national students who have completed their studies in the United States to lawfully obtain employment authorization for one additional year to learn more about their area of study.

Senator Grassley’s May 31, 2012, letter asks the GAO to “fully investigate” the use of the OPT program, and to identify how student employment is tracked, what weaknesses exist with the program, and ways to improve program procedures and policies.

Senator Grassley notes that there has been an “upward trend” in approved applications for OPT and that the Department of Homeland Security (DHS) has denied only 2-3 percent of all applications submitted. He believes these statistics imply that the OPT program is “full of loopholes with few controls in place to determine if students are actually working, working where they claimed to be, or working in their field of study.”

Senator Grassley has identified his three main points of concern. First, he would like additional information on how DHS communicates with each college and university that participates in the OPT program and the specific criteria used by these institutions to decide whether a student is eligible for OPT. To this end, he also has requested additional information as to how DHS made the decision to expand the STEM (Science, Technology, Engineering, and Mathematics) program, which extends OPT beyond the one-year period for individuals in certain STEM fields.

Next, Senator Grassley requested information on whether the OPT and STEM-extension programs may undermine other U.S. visa programs or negatively impact American students who seek employment in one of these fields.

Finally, Senator Grassley implies that the OPT program may be a threat to national security because potential terrorists can remain in the United States instead of returning to their home countries. He admits that he has no statistics to support this concern other than one incident where a naturalized U.S. citizen, who participated in the OPT program many years prior, attempted an attack on Times Square after he obtained his citizenship. The Senator, pursuing this line of inquiry, asks for increased oversight to enhance the program’s integrity, even though the alleged link between foreign national student workers and potential terrorism is a completely unsubstantiated and unsupported notion.

The Senator has requested that DHS consider instituting substantive improvements to the OPT program to better address these issues. Whether or not such changes are on the horizon is unknown at this time. Jackson Lewis will continue to monitor this situation and alert our clients should DHS propose any changes to the current OPT program.

 

• Email This
• Print
• Comments
• Trackbacks

 

AUTHOR : Melina V. Villalobos

The Fair Labor Standards Act minimum wage provisions may apply to J-1 Exchange visitors regardless of their immigration status, a federal District Court for the Middle District of Florida has held. Chaturong Jatupornchaisri v. Wyndham Vacation Ownership, Inc., 2012 U.S. Dist. LEXIS 63633 (M.D. Fla. May 7, 2012). The FLSA prescribes standards for the basic minimum wage and overtime pay and applies to most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

A J-1 visa is a non-immigrant visa issued by the United States to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical or business training within the U.S. All applicants must meet eligibility criteria and be sponsored either by a private sector or government program.

The court did not address whether the plaintiffs were in fact treated as “employees,” as such a factual dispute was not ripe for adjudication on a motion to dismiss. Thus, while J-1 immigration status will not prohibit a court finding a FLSA violation, plaintiffs will still bear the burden to prove that they were in fact “treated as employees” by the employer to fall within the ambit of the minimum wage protections afforded under the FLSA.

The court was silent regarding whether an employer could be liable for FLSA damages and be subject to administrative sanctions; thus, if an employer fails to follow the FLSA minimum wage provisions, it could be subject to additional administrative action. See 22 C.F.R. § 62.50 (describing administrative remedies as “reprimands, suspensions, terminations, and the placing of various conditions on the sponsoring organization”).
 

Jackson Lewis attorneys are available to assist employers with this and other workplace requirements.

 

• Email This
• Print
• Comments
• Trackbacks

In November of last year, the cut-off dates for China and India Employment-based Second Preference Category (EB2) were at November 1, 2007.  This meant that Chinese and Indian national with priority dates of November 1, 2007, or earlier are eligible to file their I-485, Application for Adjustment of Status.  Unexpectedly, over the course of a few months, the dates shot up to May 1, 2010.  This rapid acceleration led to a significant increase in visa usage and the Department of State retrogressed the cut-off dates all the way back to August 15, 2007.  Despite this adjustment, the demand for visa numbers by applicants did not decrease sufficiently.  Thus, the Department of State has made the China and India EB2 category completely “unavailable.”  Absent any recalculations, visa numbers will continue to be unavailable for Chinese and Indian EB2 applicants until October 1, 2012, when the next fiscal year begins.  Further, the Department of State has advised that current indications are that the China and India EB2 categories will not return to the May 1, 2010, cut-off date before spring 2013.

• Email This
• Print
• Comments
• Trackbacks

USCIS began to accept petitions for H-1B visas that are subject to the Fiscal Year 2013 Cap on April 2, 2012.  The current annual Cap on available visas is 65,000.  Some petitions are exempt from the Cap under the advanced degree exemption.  The first 20,000 petitions received and filed for a beneficiary who has obtained a U.S. Master's Degree or higher are exempt from the Cap. 

As of April 20, 2012, USCIS reports receiving 25,000 eligible Regular Cap petitions against the 65,000 available visas.

Additionally, USCIS reported that as of the same date, 10,900 eligible Master's Degree Exempt petitions had been received against the 20,000 available.

 

• Email This
• Print
• Comments
• Trackbacks

The U.S. Supreme Court (with just eight justices sitting) has held oral argument on the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”) in Arizona v. U.S., No. 11-182. Justice Elena Kagan is not participating in the case because she was the Solicitor General and involved with the DOJ’s initial challenge to the Act.

The DOJ’s lawsuit challenges the following four key provisions of S.B. 1070:

• A provision that makes it a crime for an occupant of a car stopped on a street to hire and pick up (or attempt to hire and pick up) passengers for a different location if the vehicle blocks or impedes the normal movement of traffic.

• A requirement that law enforcement officers check a person's immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally.

• A provision authorizing police to arrest immigrants without a warrant where "probable cause" exists that they committed any public offense making them removable from the country.

• A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government-issued identification.

The Ninth Circuit of Appeals sided with the DOJ and affirmed an Arizona federal district court’s decision to block enforcement of these provisions days before they were set to go into effect.

The Justices spent a significant portion of the 70-minute oral argument questioning the Solicitor General on the DOJ’s position that the statute is preempted by federal law. One of Justice Antonin Scalia’s quips may tip the direction of the Court: "If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?"

This is the second time in two years that the Court has been asked to decide the validity of an Arizona immigration statute. In May 2011, it upheld the Legal Arizona Workers Act, which requires Arizona employers use E-Verify for new employees and imposes significant sanctions on employers that knowingly or intentionally hire unauthorized workers.

A ruling is expected sometime in early summer. If the Court splits 4-4, the challenged provisions of S.B. 1070 will not take effect; however, the constitutional issues facing other recently enacted state immigration statutes throughout the U.S. may go unanswered for the time being.

Jackson Lewis will continue to follow this case.
 

• Email This
• Print
• Comments
• Trackbacks

The prevalence of document fraud in the workplace was the subject of Immigration and Customs Enforcement Deputy Assistant Director Waldemar Rodriguez’s testimony yesterday before the U.S. House of Representatives House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement. She noted that because immigration-related crime poses a significant threat to national security and public safety, ICE continues to prioritize investigation of identity fraud.
 

Identity fraud is regularly found in investigations involving critical infrastructure protection, worksite enforcement, visa compliance enforcement, and national security. “While commonly used by aliens attempting to enter or remain in the United States typically to obtain work, document and benefit fraud have also been used by terrorists and other criminal organizations to facilitate illicit activity,” she said. To address the risk and thwart the activity, ICE created Document and Benefit Fraud Task Forces (DBFTFs)—19 in all throughout the United States. The DBFTFs work hand-in-hand with the U.S. Attorney’s Office, U.S. Citizenship and Immigration Services, U.S. Department of Labor, U.S. Department of State, and the Social Security Administration.

Since 2009, ICE Worksite and DBFTF teams have audited more than 7,000 employers suspected of hiring illegal labor, debarred nearly 600 companies and individuals from federal contracts, and imposed over $80 million in civil penalties.  Rather than comment on the prevalence of fraudulent document usage, DAD Rodriguez instead advised that employers—concerned that they might be the subject of an I-9 inspection that results in civil fines, debarment, and, ultimately, criminal prosecution—should turn to the ICE IMAGE program to protect themselves from identity thieves.

Two elements of the IMAGE program are:

(1) participating in the E-Verify program to take advantage of its Photo Tool for new hires that present U.S. Passports, Lawful Permanent Resident Cards, Employment Authorization Documents, and, for the time being, Mississippi driver’s licenses; and
(2) providing forensic document training to hiring managers and HR staff that may involve the use of blue light devices and magnifying lenses.
 

Participating in IMAGE presents challenges. Employers need to educate themselves about the risks. Each I-9 audit brings with it the potential for a criminal investigation. So, prior to heeding DAD Rodriguez’s advice, employers should take a long look at their internal compliance strategy and partner with specialized immigration counsel for advice.
 

• Email This
• Print
• Comments
• Trackbacks

As of April 4, 2012, USCIS has received 22,500 H-1B non-immigrant visa petitions needed to meet the regular and master’s degree caps, according to information released by the agency on H-1B non-immigrant visa petitions for Fiscal Year 2013. Approximately one-third of the petitions received are counted toward the 20,000 master’s degree cap. The H-1B regular cap is 65,000. The rate of petitions so far represents a 50% increase over FY2012, when the cap was not reached until November 21, 2012. If this pace continues, it is unlikely that H-1Bs will be available beyond this summer.Employers should file any needed H-1Bs as early as possible.

Jackson Lewis will continue to provide updates on the cap numbers as they become available.

• Email This
• Print
• Comments
• Trackbacks

The Obama administration is launching another round of worksite investigations. ICE officials indicate approximately 500 employers have been visited during the past couple of days by Special Agents who have requested not only the employment verification forms (Forms I-9), but also evidence of the corporate structure, contracts with subcontractors and temporary employment agencies, and payroll records. Generally, businesses are required to make sure they are hiring only people who can legally work in the U.S.
 

As previously noted, the Obama administration's worksite strategy differs from that of the Bush administration, which focused on high-profile raids that led to arrests of hundreds of workers at a single work site. ICE still conducts raids—they’re just “silent” now; requiring employers to terminate significant portions of their workforce without the grand mass arrests or flashy news releases. Because of criticism that the Administration was auditing only small businesses, larger employers that are being re-inspected have the most to lose.

Notices of Inspection (NOIs) instruct companies that they have three (3) days to present the Forms I-9 of their employees for inspection. ICE will review companies’ hiring records to determine whether they are complying with the Immigration Reform and Control Act of 1986 (IRCA). ICE continues to consider these inspections an important enforcement tool enforcement —especially in light of recent critical comments from Lamar Smith (R-San Antonio), the current Chairman of the House Judiciary Committee . This initiative continues reflect a renewed department-wide focus in targeting employers involved in the hiring of unauthorized workers and related criminal activity.
 

What to do if you receive a Notice of Inspection (NOI)?

Receipt of a NOI should be taken very seriously without regard to the size of your company— especially if you have been targeted on more than one occasion. It is critical that you act immediately to secure a team of experienced compliance experts to guide you through the ICE inspection process. We recommend taking the following steps immediately upon receiving an NOI:
 

• Notify your management and executive teams
• Retain experienced immigration counsel
• Gather I-9s and supporting documentation
• Consider proactive compliance planning, where appropriate

Diligent employers must redouble their compliance efforts, and those who have not yet instituted compliance initiatives must undertake a comprehensive review of their records, policies and protocols.
 

• Email This
• Print
• Comments
• Trackbacks

The tide seems to be turning and the EB-2 immigrant visa numbers may again retrogress for nationals of India and China. Charlie Oppenheim, Chief, Visa Control and Reporting at the Department of State, speaking at the recent AILA Midwest Regional Conference in Chicago, advised American Immigration Lawyers Association Members that he will likely retrogress India and China-Mainland born Employment-Based Second Preference (EB-2) priority dates back to August 2007. The April 2012 Visa Bulletin reports priority dates of May 1, 2010 for this immigrant visa category. This retrogression will likely be effective with the May or June 2012 Visa Bulletin. The EB-2 immigrant visa category is the route to Permanent Residence (a “Green Card”) for employer sponsored applicants who possess an advanced degree. The Visa Bulletin generally controls when these applicants are permitted to apply for the final stage and receive their Green Cards based upon their priority date (the date their applications were filed) matching the dates reported by the Visa Bulletin.

This proposed retrogression will end the dramatic advancements of that green card category over the past months. The implications for this retrogression for employers is that employees who were ready to file their final stage of their Green Card and receive that card, may again be subject to a significant wait.
 

• Email This
• Print
• Comments
• Trackbacks

Reversing many of the critical reforms initiated in 2009 that streamlined the H-2B application process, the U.S. Department of Labor has amended its regulations governing the certification of the employment of foreign workers performing temporary or seasonal non-agricultural labor or services under the H-2B visa program. The Final Rule will take effect on April 23, 2012. The H-2B visa program allows up to 66,000 visas each year for the entry of low-skilled, non-agricultural guestworkers.
 

The Final Rule significantly and fundamentally changes the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers. The changes mirror those introduced to the H-2A agricultural worker visa program in 2010. Major features of the Final Rule include the establishment of a national electronic job registry for all H-2B jobs to improve U.S. worker access to these temporary jobs, extension of H-2B worker protections to corresponding U.S. workers, and the “three-fourths guarantee” (employers must guarantee employment and wage payment for a certain period of time).

The Final Rule makes participation in the H-2B visa program more burdensome. These changes, in particular the “three-fourths guarantee” and extension of worker protections to corresponding workers, taken with the new prevailing wage determination methodology rule introduced in 2011, may lead some employers to consider abandoning the H-2B program for other options. As with many burdensome regulations, talented immigration counsel can make the difference between the seemingly impossible and the probable.

Prior to the April 23, 2012, implementation date, employers should consider taking the following steps:

1. File any “ready” H-2B labor applications under the current regulations;
2. Educate staff about the new rules and timelines involved so they can plan for filings once the changes take effect. Under the new bifurcated application process, employers will be required to begin the H-2B application process approximately seven months before the date when new H-2B workers are needed;
3. Develop a uniform H-2B policy that takes account of all financial arrangements with H-2B workers, such as employee relocation expenses and deductions for housing, and contains mechanisms for payment or reimbursement of transportation expenses and visa fees;
4. Review contracts or agreements with all staffing and recruitment companies to ensure they can pass muster or scrutiny under the new regulations with regard to prohibited payments by H-2B workers; and
5. Update document retention policies and procedures to ensure compliance with the proposed document retention requirements.
 

• Email This
• Print
• Comments
• Trackbacks

At a time of increasingly aggressive enforcement of immigration laws, the California Service Center of the U.S. Citizenship and Immigration Service has notified certain stakeholders that the USCIS will be ramping up “administrative site visits” in connection with H-1B petitions filed by U.S. employers. This is an effort at enhanced enforcement in response to the H-1B Benefit Fraud Analysis report released in September 2008. While thus far, this is the agenda of the California Service Center, we can expect to see similar moves from other service centers. Employers should take the opportunity to prepare for what to expect of a site visit.

The USCIS advised that petitioners should be prepared for administrative site inspectors to ask questions that pertain to any aspect related to the terms and conditions of employment, including job duties, salary, work location, and work hours. Further, inspectors regularly would ask whether the employee has paid any fees in association with the filing of the H-1B petition. There are specific requirements regarding who may legally pay H-1B fees.

Site inspections typically occur at the work location listed on the Form I-129 petition. If an employee will be working anywhere else, the employer should include an itinerary for all worksites and ensure the Labor Condition Application corresponds to all locations as necessary.

Inspectors typically will request to speak to a company representative (i.e., the signatory of the petition or the listed contact person) and the beneficiary employee. The inspector also may ask to review documentation related to the petition, as well as to visit the employee’s desk or workspace.

Site inspections are made on a random basis and may occur more than once. Employers should prepare in advance by having on hand relevant information, such as where the employee works, where the petition documents are located and, of course, how to get in touch with counsel, if necessary.
 

• Email This
• Print
• Comments
• Trackbacks

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

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

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

• Email This
• Print
• Comments
• Trackbacks

Co-Author : Michael Neifach

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

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

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

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

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

• Email This
• Print
• Comments
• Trackbacks

“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

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

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

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

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

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

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

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

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

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

 

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

 

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

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

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

                                                           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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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