In a meeting with Embassy staff at the U.S. Embassy in London, Secretary of State John Kerry has announced that the Department of State would treat same-sex married couples as equal to other married couples.  Kerry stated:

If you are the spouse of a U.S. citizen, your visa application will be treated equally. If you are the spouse of a non-citizen, your visa application will be treated equally. And if you are in a country that doesn’t recognize your same-sex marriage, then your visa application will still be treated equally at every single one of our 222 visa processing centers around the world.  Now, as long as a marriage has been performed in a jurisdiction that recognizes it so that it is legal, then that marriage is valid under U.S. immigration laws, and every married couple will be treated exactly the same.
The Department of State also issued guidance on this issue in the form of Frequently Asked Questions (FAQs), which specify that so long as the marriage was valid in the state, country or jurisdiction where it took place, it is valid for U.S. immigration purposes.  Therefore, same-sex spouses will qualify for dependent nonimmigrant visas, immediate relative and family-based immigrant visas, derivative permanent resident status, and any other benefits previously available only to opposite-sex married couples.  The Department of State clarified that civil unions and domestic partnerships do not qualify at this time, only legal marriages.  The complete set of FAQs can be found at: http://travel.state.gov/visa/frvi/frvi_6036.html.

Author:  Harry J. Joe.

Financial burdens imposed upon an employer by non-immigration-related governmental entities is a factor that can be considered in lowering the assessed civil monetary penalty for the employer’s failure to complete the I-9 Employment Verification Forms for its employees in a proper and timely manner, even though such burdens were temporary, the Justice Department’s Office of the Chief Administrative Hearing Officer (OCAHO) recently held. United States of America v. Pharoah’s Gentleman’s Club, Inc. OCAHO Case No. 12A00061, July 18, 2013 (USDOL EOIR).
 
Pharoah’s, an adult entertainment business, was charged with failing to verify the employment authorization of 30 employees within 3 days of their hiring and completing their I-9 forms, and failing to ensure the proper completion of the I-9 for ten other employees. Pharoah’s conceded these allegations.
 
Moreover, the Government alleged that 22 of the I-9s that were subsequently produced in response to a Notice of Inspection had been backdated, warranting a finding of bad faith. The Government sought an order for civil fines totaling $38,335, an assessment of $935 for each of the 40 violations. 
 
Pharoah’s contended that the sum sought by the government was excessive and that only the minimum fine  allowed by law be assessed in view of the extreme financial pressures and setbacks it  had recently incurred. They were: a recent New York State sales tax audit that resulted in additional liability of $120,000; another state assessment in the amount of $63,000 for unpaid unemployment insurance arising from misclassification of the employee status of their dancers from independent contractors to employee; and having to defend a $5,000,000.00 personal injury lawsuit that was not covered by any insurance.
 
On the issue of whether the production of the backdated I-9s constituted bad faith, Administrative Law Judge Ellen K. Thomas rejected the Government’s characterization as such in the absence of evidence of any instructions to contrary given to the employer by the inspectors at the time they serve the Notice of Inspection, and absent any evidence of other culpable conduct.
 
The ALJ also agreed with Pharoah’s contention that the amount sought by the Government was excessive in light of the state sales tax and unemployment insurance tax assessments and the costs that it was incurring in defending the personal injury suit. The ALJ stated that these liabilities could be considered in conjunction with the employer’s ability to pay a penalty in such proceedings. As a matter of discretion, the ALJ ordered Pharoah’s to pay a reduced fine of $17,500.
 

AUTHOR:  Robert Neale.

CNET, a leading tech media website, has reported that the United States Citizenship and Immigration Services (USCIS) had approved a P-1 petition submitted by a professional electronic sports (or “eSports”) gaming team from the United Kingdom. This is the first report that USCIS has approved P-1 status to a professional eSports team.
 
The P-1 visa classification applies to an athlete, individually or as part of a group or team, coming to the United States  for a specific athletic competition to perform at an internationally recognized level. The individual must demonstrate a high level of achievement in a field, evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country. P-1 visas have been used primarily by professional sports teams to allow individual players to attend athletic competitions over the course of a season. 
 
In addition to “eSports,” “competitive gaming,” “professional gaming,” and “cybersport” are other terms used to describe the increasingly popular competitive play of video games. The most common video game genres associated with electronic sports are real-time strategy (RTS), fighting, first-person shooter (FPS), massively-multiplayer online (MMOG), racing and multiplayer online battle arena (MOBA). Games are played competitively at amateur, semi-professional and professional levels, and some games have organized competition in the form of leagues and tournaments. Events such as Major League Gaming (MLG), European Gaming League (EGL), Global Starcraft II League (GSL), World Cyber Games (WCG), Dreamhack, the Evolution Championship Series (EVO), and Intel Extreme Masters provide both live broadcasting and streamed games, as well as cash prizes to competitors. One example is the upcoming “The International” competition taking place in Seattle, Washington, in August, where the winning international eSports team will be awarded $1 million. 
 
While a P-1 visa was used in this case, alternatives, such as business visitor visas, are available to professional gamers, depending on the particular circumstances of the eSports competition.

While Customs and Border Protection (CBP) announced that it stopped issuing I-94 arrival/departure cards on May 21, 2013 (instead, the foreign passport is stamped and the entry is recorded electronically; the record can be accessed online), some land ports of entry still issue actual I-94 cards. Despite the new system, foreign nationals have reported being unable to find the I-94 electronic record online.

Given the issues with the new electronic I-94 system, employees should track each entry into the United States. Records should be kept of the following:

  • Date of Admission
  • Land/Sea/Air
  • Name of Port of Entry
  • Date of Departure

Employees print their I-94 card as soon as they enter.   If they cannot locate the electronic I-94, they should try following these tips:

  • Switch the last name and first name in the online form, in case the names were reversed in the system. (Some countries, such as Indonesia, put first name, last name on the passport, rather than the more standard last name, first name, so the name might be recorded incorrectly in the system.)
  • Check the name on the visa.  If the name is different from the one on the passport, use the name on the visa.
  • Check the passport number on the visa.  If it is different from the current passport, use the one that is on the visa.
  • Compare the visa class designation on the visa with the one written on the stamp.  For example, if an E-3 beneficiary has “E-3D” on the visa and “E-3” written by the stamp, the system might have recorded one or the other.  So, you may need to try both.

If the record is still not found within two weeks of admission, the employer’s HR representative or immigration counsel should be asked to assist in locating the record.  Jackson Lewis has contacts at CBP who can help locate the missing I-94.

On July 1, 2013, USCIS announced its latest “customer service enhancement” to E-Verify.  If an employee voluntarily provides his or her email address on the Form I-9, E-Verify will notify the employee directly of a Tentative Non- Confirmation (TNC) at the same time it notifies the employer.  Given that E-Verify monitors how an employer complies in a timely manner with its contractual obligations to the Government, employers must review their standard operating procedure to ensure it does not run afoul of the law.

But now that E-Verify is also “deputizing” employees—by notifying  them  and encouraging them to report alleged discrimination or unfairness —employers MUST ALSO confirm that  information being transmitted via E-Verify to the Government mirrors the documents provided by the new hire AND that each employee is treated in a uniform and consistent fashion.  Systems may have to be implemented to provide such assurance.
In addition to providing the initial notice of a TNC, E-Verify will send reminder emails to employees if no action to resolve the TNC has occurred within four days of a decision to contest and notify them about the possible need to update a Social Security or Department of Homeland Security record.
Although the agency concluded that neither the employer nor the employee’s privacy would be impacted by the update, that may not be correct.  It is one thing for the Government to conclude that because employers already are obligated to maintain verification records, the fact that E-Verify may notify an employee directly of a TNC changes nothing. But potentially encouraging employees  to sue their employers by sending  them reminders may be quite significant.
If the number of immigration-related employment discrimination claims jump in the coming months, it may signal that this enhancement has impacted employers detrimentally.

Despite decisive passage of S. 744, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, on June 27, 2013 by a 68-32 vote in the Senate, recent exhortations from former President George W. Bush to “recognize the benefits immigrants make to our country” and to “keep a benevolent spirit” in the reform debate, and a Congressional Budget Office report projecting a significant benefit  to the U.S. economy ($700 billion over 10 years) should the bill become  law, prospects for passage  have dimmed.  Following a closed-door session by House of Representatives Republicans on July 10, House Leader John Boehner (R-OH) released a statement (joined by Majority Leader Eric Cantor (R-VA), Majority Whip Kevin McCarthy (R-CA), Conference Chair Cathy McMorris Rodgers (R-WA), Homeland Security Committee Chairman Michael McCaul (R-TX), and Judiciary Committee Chairman Bob Goodlatte (R-VA)), sounding  a distinct note of caution and wariness.

A bi-partisan alternative to the Senate bill was reported to have been reviewed by House legislative counsel.  As reported in Politico, Kentucky Representative John Yarmuth expects the bill to be released before the August recess.  In the meantime, four limited proposals addressing discreet parts of the “broken” immigration system (agricultural guest workers, E-Verify, enforcement of immigration laws by state and local law enforcement, and increasing skilled worker visa numbers) cleared the House Judiciary committee.
While a number of these bills are popular with employers, notably absent from the House bills is a proposal for dealing with the estimated 11 million illegal aliens currently in the country.  Reform advocates remain hopeful that a comprehensive solution that can satisfy representatives on both sides of the aisle in both houses of Congress will be passed into law.
Report of the National Economic Council, the Domestic Policy Council, the President’s Council of Economic Advisers and the Office of Management and Budget: The Economic Benefits of Fixing Our Broken Immigration System

AUTHOR:  Harry J. Joe.

The United States Department of Justice announced on July 8, 2013 that its Civil Rights Division’s Office of Special Counsel for Immigration – Related Unfair Employment Practices (OSC) has entered into a Memorandum of Understanding (MOU) with the National Labor Relations Board that will allow both agencies to share information, to refer matters to each other concerning potential violations of the laws governed by the respective agencies, and to coordinate multi-agency investigations.
The OSC is responsible for enforcing the prohibition against unfair immigration related employment practices and the anti-discrimination provisions of the Immigration and Nationality Act, which prohibits citizenship status and national origin discrimination in hiring, firing, and recruitment and referral for fees, as well as document abuse and related unlawful practices in the I-9 employment authorization verification process. The NLRB is an independent federal agency that is responsible for enforcement of the National Labor Relations Act which protects the rights of most private sector employees to unionize, collectively bargain, and engage in other “protected concerted activity.”
The MOU was designed to encourage employees to seek redress for violations under the appropriate laws and through the appropriate federal agencies although such a claim may have been initially brought to the attention of the wrong agency. “Employers cannot avoid liability under the law just because an employee has turned to the wrong agency or is unaware of additional protections available under a different law” said Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division.
The MOU will allow the OSC to make referrals to the NLRB with the express authorization of the complaining party when the matter investigated by the OSC suggests a violation of the NLRA. Likewise, the OSC can expect to receive referrals from the NLRB when the matter before it suggests a possible unfair immigration related employment practice such as demanding specific documentation for the employment authorization verification process for completion of the I-9 form or discrimination based on citizenship status or national origin. The MOU further provides for cross training between the two Federal entities as well as technical assistance for identifying and making appropriate referrals. The OSC maintains more than 50 similar agreements with other federal, state, and local agencies including the Equal Employment Opportunity Commission.
The NLRB, often inaccurately thought of as interested only in collective bargaining and union organizing issues, has in recent years aggressively pursued violations by non-union employers.  Among other things, the NLRB has brought to light violations in common workplace policies at numerous unwary employers.  With the new agreement, it is likely that the Board will now look to the OSC to help ferret out additional hidden violations – another good reason for employers to have their policies reviewed by counsel.

On July 10, 2013, the Second Circuit, applying the Supreme Court’s ruling in Hoffman Plastics, denied back pay to undocumented bakery workers who were terminated for participating in protected labor activities.  The Court rejected the argument that the matter should be distinguished from Hoffman Plastics since the petitioners committed no fraud in obtaining employment.  Unlike the employee in Hoffman Plastics, in this case they did not submit false I-9 documentation to the employer.  The Court found that the Immigration Reform and Control Act of 1986 (IRCA) was intended to prohibit formation of employment relationships with undocumented workers.  The former employees’ lack of fraud does not alter the need to effectuate the statutory purpose, and the question of whether the employees or the employer violated IRCA is inconsequential under the Hoffman back pay prohibition.   The Court, however, remanded the case to NLRB on the question of whether a conditional order of reinstatement should have been granted in the event the former employees could provide proper IRCA documentation.  The Court said that the employer may still be subject to IRCA sanctions, so it is not getting a free pass for those violations even if it escapes a back pay award.  See decision at link below:

AUTHOR:  Harry J. Joe.

An employer who failed to complete an I-9 Employment Eligibility Verification Form within three days of an employee’s start date commits a substantive violation for which the good faith defense is not available to mitigate the assessed fine, according to a recent ruling from the Office of the Chief Administrative Hearing Officer (OCAHO) of the Department of Justice’s Executive Office for Immigration Review, in United States of America v. Anodizing Industries Inc., OCAHO Case No. 12A00030, May 24, 2013.
 
The Department of Homeland Security, Immigration and Customs Enforcement (ICE) filed a complaint alleging that Anodizing Industries, Inc. of Los Angeles, California had hired 26 named employees for whom it failed to timely prepare I-9 forms within three days of their start dates. The length of time between the start dates of the employees and date of completion of their respective I-9 form ranged from a matter of weeks to 22 years. The company argued that it had complied in good faith with the employment verification requirements in hiring the 26 employees, and that the proposed fines were excessive and should be mitigated under the statutory penalty factors. ICE sought a total of $25,525.50 in civil money penalties.
 
The Administrative Law Judge ruled that the good faith defense was available only as to certain technical or procedural violations where the employer made a good faith attempt to comply with the recordkeeping requirements. See 8 U.S.C. 1324a(b)(6).  With respect to such violations, the employer must be provided with notice of the violations and given not less than 10 days to correct the failure voluntarily. Fines cannot be assessed or sought until notice and opportunity to cure such violations have been provided.
 
However, here the ALJ held that a failure to prepare an I-9 form when hiring a new employee is not a technical or procedural failure, but rather is substantive in nature. Moreover, the failure to prepare an I-9 in a timely fashion not only is a substantive violation, but also a serious one because, the ALJ explained, an employee working on the job could be unauthorized for employment during the entire time his or her eligibility remains unverified. Furthermore, the longer an employer delays in preparing an I-9 form, the more serious is the violation. Accordingly, the good faith defense was not applicable here and the company was not entitled to notice and opportunity to cure the violations. The ALJ relied on legacy USINS Interim Guidelines relating to Section 274A(b)(6) of the Immigration and Nationality Act, added by Section 411 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as a basis for decision.
 
The good faith defense thus is limited to technical or procedural failures to comply with a partial verification requirement, rather than to failures to comply with the verification requirement as a whole. The defense did not alter or affect the necessity of completing the I-9 form within three business days of the start date or of retaining the forms for the required period of time.  Omissions and delays can prove costly.  Each failure to properly and timely prepare, retain, or produce the forms in accordance with the requirements of the employment verification system is a separate violation of the Act. 
 
Despite certain mitigating factors (none of the employees were unauthorized workers, there was no prior history of I-9 violations, and Anodizing was  a small business), the ALJ still affirmed an adjusted penalty of $15,600, as a matter of discretion, reduced from the $25,525.50 originally sought by ICE.
 

The U.S. Supreme Court has taken another swipe at an Arizona statute that addresses the State’s response to illegal immigration.  In Arizona v. Intertribal Council of Arizona, Inc., No. 12-71 (June 17, 2013), the Court invalidated part of Arizona’s voter registration law, which required applicants to submit documentary evidence of citizenship when registering to vote in federal elections by mail.

Under the National Voter Registration Act of 1993 (“NVRA”), states must “accept and use” a uniform federal form to register voters for federal elections (commonly referred to as the “Federal Form”), the contents of which are prescribed by the federal Election Assistance Commission.  While the Federal Form requires only that an applicant aver under penalty of perjury that he or she is a citizen, Arizona’s voter registration law required actual evidence of citizenship.  Under the Arizona statute, any Federal Form application unaccompanied by documentary evidence of citizenship, such as a photocopy of a birth certificate or driver’s license, was to be rejected by state elections officials. Ariz. Rev. Stat. §16-166(F).  In its 7-2 decision, the Supreme Court held that Arizona’s requirement of evidence of citizenship conflicted with the NVRA’s mandate that states “accept and use” the Federal Form.  As a result, Arizona applicants using the Federal Form now need only aver that they are citizens and do not need to submit any documentary evidence of citizenship.
While the ruling has been lauded by some who believe Arizona’s law chilled voting by immigrants and minorities and condemned by others who believe the ruling opens the polls to noncitizens, its impact is yet to be seen.  Nonetheless, the Supreme Court’s decision represents the latest blow to Arizona’s efforts to legislate in the area of immigration.  Since 2011, the U.S. Supreme Court has reviewed three separate Arizona immigration statutes, including the State’s controversial Senate Bill 1070 – portions of which were invalidated by the Court in June 2012.  However, in May 2011, the Court upheld Arizona’s workplace legislation, the Legal Arizona Workers Act (“LAWA”), against challenges that it was preempted by federal immigration law.  LAWA, which remains in effect today, imposes sanctions on employers that knowingly or intentionally hire unauthorized workers and requires employers to participate in the federal E-Verify program.