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.
 

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.

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.

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.

Jackson Lewis LLP is pleased to announce that we have adopted the LawLogix EDGE immigration case management system to provide our clients a convenient case management web-based platform incorporating the highest security standards in the field.  

This system provides employers and their foreign national employees 24/7 internet access to case status and reporting capabilities, and will send out automated messages to keep everyone up-to-date and informed.  Clients also will be able to take advantage of online questionnaires to improve case processing time.  

All communication is encrypted with 256-bit SSL encryption in transit and all Personal Identifiable Information (i.e., Social Security number and date of birth) is encrypted “at rest” at 128-bit AES, so data is always secure.  

For more information on the Jackson Lewis Global Immigration practice or to contact a Jackson Lewis attorney: www.jacksonlewis.com.

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.