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.

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.

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.

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:  https://www.globalimmigrationblog.com/2012/03/articles/uscis/uscis-seeks-public-comment-on-new-i9-form

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.
 

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.

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.