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

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.
 

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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.

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Consider the dilemma of the newly drafted NHL hockey player from Canada. After signing his Standard Player Contract, obtaining his P visa, and loading up his gear and heading to the border with his long time girlfriend alongside to begin training camp, both are stopped at the border. The immigration officer inquires of the girlfriend of her intention to travel to the United States to accompany the player just for the duration of the season. She is turned denied entry and turned away.
 

What happened? The girlfriend in the above scenario was denied entry due to a concept called immigrant intent. The officers at the border made a determination that because she was not married to the player or otherwise in the possession of an independent student or work visa, the girlfriend most likely had the “intent” to remain in the United States never to return to Canada. Seem implausible or irrational? It is a frequent real life border situation that can be disruptive to a professional organization that is concerned with the smooth transition of its players (and significant others) to ensure focus on the ice.
 

Recently, in August 2011, the United States Citizenship and Immigration Services issued a revised Policy Memo that appears to provide a possible solution to the above scenario. The August 2011 policy memo stands for the proposition that border officials are now given discretion to grant B visa (tourist) entry to cohabiting partners or household members of nonimmigrant visa holders.
 

Immigration defines cohabiting partners and household members as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”
While the ultimate approvability of the visa is at the discretion of the reviewing officer, this policy change appears to provide a policy basis to permit the live-in girlfriends of professional foreign athlete to enter the United States to accompany the player for the duration of the season.
 

Members of the Jackson Lewis Global Immigration Group can also assist with the analysis of how this new cohabiting partners policy change can be applied to scenarios outside of professional sports.

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As more and more states pass legislation mandating use of E-Verify, a federal E-Verify mandate seems inevitable. Recently, Representative Lamar Smith introduced the first attempt at such a federal mandate, the Legal Workforce Act.

The Legal Workforce Act would preempt existing state E-Verify laws and repeal the current paper Form I-9 system, replacing it with a completely electronic system. It would be phased in as follows:

• Employers with 10,000 or more employees: 6 months after enactment
• Employers with 500-9,999 employees: 12 months after enactment
• Employers with 20-499 employees: 18 months after enactment
• Employers with 1-19 employees: 24 months after enactment

The bill also includes special provisions for agricultural employers, phasing those employers in after 36 months and treating seasonal workers as existing employees, as opposed to new hires. As with the current rules, the bill would grant employers safe harbor from prosecution for employing unauthorized workers if they used the E-Verify program in good faith.

In introducing the bill, Representative Smith cited high unemployment, voter support and strong bi-partisan support. He is quoted as saying, “With unemployment at 9%, jobs are scarce. Despite record unemployment, seven million people work in the U.S. illegally. These jobs should go to legal workers." It remains to be seen whether Smith will get the bi-partisan support needed to pass the bill. Presently, it still sits in committee.
 

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

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

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

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

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

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

Visa Waiver Program Travelers

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

Non-Immigrant Visa Travelers

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

Documentation

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

Additional Immigration Relief Options

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

• Extensions & Changes of Status

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

• Fee Waiver

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

• Employment Authorization

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

• Document Replacement

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

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

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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

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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.
 

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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.
 

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