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.

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.

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.

AUTHOR: 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.

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.

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.

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.

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.