A plaintiff has no claim for breach of contract or a Fifth Amendment “taking” for the detention and damage of his laptop computer by U.S. Immigration and Customs Enforcement (ICE), the U.S. Court of Appeals in the Federal Circuit has ruled. Kam-Almaz v. U.S., 2012 U.S. App. LEXIS 12581 (Fed. Cir. June 20, 2012).

Majd Kam-Almaz, a U.S. citizen employed in international disaster relief assistance, on April 7, 2006, was detained as a “person of interest” by U.S. Immigration and Customs Enforcement (ICE) at Dulles International Airport on his way home from a business trip abroad. He was accused of no wrongdoing. His laptop computer and two flash drives were taken for review by ICE border agents. Kam-Almaz was provided a receipt and told his property would be returned within 30 days. In fact, the computer hard drive failed while being examined by ICE, destroying much of Kam-Almaz business software.
Kam-Almaz sued the federal government, alleging breach of an implied-in-fact contract and an unlawful taking under the Fifth Amendment. He claimed damages totaling $469,480 due to lost business contracts resulting from his inability to access his computer files as well as replacement hardware, software, and warranty costs.
On June 20, 2012, the Court of Appeals for the Federal Circuit affirmed the lower court decision to dismiss Kam-Almaz’s claims. The Court found: 1) there was no implied-in-fact contract when ICE agents detained the laptop and flash drives, and 2) “property seized and retained pursuant to the government’s police power is not taken for a public use within the context of the Fifth Amendment’s Takings Clause.”

For international business travelers, this is a warning that in conducting routine border searches of personal effects, including laptop computers, and in detaining and inspecting this property, even without a warrant, U.S. law enforcement is given wide latitude, and it may be difficult for those who suffer economic harm as a consequence of possible mistakes to obtain recompense from the government. Employers and international business travelers should keep in mind that while ICE and Customs and Border Protection (CBP) have developed guidelines for secure and efficient handling and return of laptops and flash drives, sensitive business-related information can be compromised or destroyed without any adequate legal recourse against the government.  Employers should consult with counsel to discuss the ways to minimize the risks of border searches in the first place and how to effectively engage with U.S. border enforcement agencies where sensitive equipment and information has been seized.

The U.S. Supreme Court has issued its much anticipated decision on Arizona’s controversial immigration statute, Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). In so doing, the Court affirmed, in a 5-3 decision, the Ninth Circuit of Appeals, agreeing that the U.S. Department of Justice (“DOJ”) had established a likelihood of success that three of the four challenged provisions of S.B. 1070 are preempted by federal immigration law. Arizona v. United States, No. 11-182 (June 25, 2012).

Among the three provisions that the Court found to be preempted is Section 5(C) of the Act, which makes it a criminal misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state. According to the Court,

[federal] IRCA’s framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work — aliens who already face the possibility of employer exploitation because of their removable status — would be inconsistent with federal policy and objectives.

Therefore, the majority found Section 5(C) was preempted because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

With respect to Section 2(B) of the Act, which contains a requirement that law enforcement officers check a person’s immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally, the Court held that it “would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.” However, in reaching this conclusion, the majority of the Court stated that it was not foreclosing “other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

This marks the second decision by the U.S. Supreme Court in as many years on immigration legislation passed by the Arizona legislature. In May 2011, the Court rejected preemption arguments made by groups challenging the Legal Arizona Workers Act (“LAWA”), which imposes sanctions on employers that knowingly or intentionally hire unauthorized workers and requires employers to participate in the federal E-Verify program.

Jackson Lewis will provide a more thorough analysis of the Supreme Court’s decision in Arizona v. U.S. shortly. In the meantime, the firm’s attorneys are available to answer any questions that you may have regarding the Court’s decision.
 

The U.S. Department of Labor’s Wage and Hour Division (WHD) has announced that Semafor Technologies LLC in Norcross, Georgia, has agreed to pay 73 employees $741,288 in back wages following an investigation by the WHD.  The June 12, 2012, announcement is the result of an investigation that found the company failed to pay 54 foreign H-1B workers for periods of time during which they were nonproductive because the company did not assign any work and failed to reimburse five workers for various processing fees related to their employment.  Also, an additional 14 workers were neither reimbursed for processing fees nor paid for periods without assigned work.

H-1B regulations prevent employers from “benching” H-1B workers.  This means employers must continue to pay workers even if there is no work to be performed.  Employers also are prohibited from forcing employees to take leave without paying them their wages.  Employers are not responsible, however, for wages when employees take voluntary leave.  In addition, H-1B regulations generally make it a violation for employees to pay business expenses, which include fees associated with obtaining an H-1B visa.  Employers who violate either of these provisions will be subject to back wages and penalties, and can face debarment from the H-1B program altogether.  It is important that employers filing H-1B petitions be fully aware of and can comply with their obligations under the program.
 

The DREAM Act (Development, Relief, and Education for Alien Minors) is a bipartisan bill that has failed in Congress time and again since its initial proposal in 2001. The basic tenets of the Act would provide conditional temporary residency to certain illegal immigrants if the individuals are of good moral character, have graduated from U.S. high schools, have arrived in the United States as minors and have lived in the country continuously for at least five years.

On June 15th, President Barack Obama announced he will implement part of the DREAM Act. The administration is going use its prosecutorial discretion to not prosecute those who might be eligible under the Act. Instead, USCIS will focus on the removal of foreign nationals (“illegal immigrants”) that pose a greater threat (e.g., those with a criminal background).

Candidates for the new initiative must meet the following criteria:

1) Have entered the U.S. before age 16 and be less than 30 years old
2) Have been present in the U.S. for five years as of June 15, 2012
3) Have maintained continuous residence in the United States
4) Have not been convicted of one serious crime or multiple minor crimes
5) Be currently in school, have graduated from high school, have a GED, or have enlisted in the military

Qualifying individuals may be granted deferred action (i.e., will not be removed) by ICE or USCIS and could become eligible for work authorization cards. Although, this is not technically the same as “legal status” or a path to legal status or permanent residency, employers might feel a significant impact because it will expand the pool of available younger workers. In particular, businesses in the hospitality, restaurant, retail and agricultural industries might see increases in eligible workers.

The official press release from DHS can be found here http://www.dhs.gov/ynews/releases/20120612-napolitano-announces-deferred-action-process-for-young-people.shtm

Jackson Lewis will continue to follow developments on this initiative and its effect on employers.
 

In early 2005, USCIS created the Benefit Fraud and Compliance Assessment (BFCA) program. The program was developed to “evaluate the integrity of various nonimmigrant and immigrant benefit programs” by reviewing petitions and applications for factors related to fraud.

The BFCA completed an assessment of the H-1B program in 2008. They reviewed 246 H-1B petitions drawn from over 96,000 approved, denied or pending cases filed between October 1, 2005, and March 31, 2006. The purpose was to investigate all levels of fraud, technical violations, and abuse in the H-1B program based on a “snapshot” in time. After reviewing the petition for technical violations, a site visit was conducted to corroborate the information provided in the petition.

The investigation uncovered 51 petitions (or 20%) that were fraudulent or contained one or more technical violations. Of the 51 cases, 33 (13%) were found to contain fraud. The most common form of fraud (10% of all violations) was forged or fraudulent documents. The study identified the following indicators for fraud:

1. Petitioner has 25 or fewer employees
2. Petitioner has annual gross income of less than $10 million
3. Petitioner has been in existence for fewer than 10 years
4. Positions in accounting, human resources, business analysis, sales and advertising occupations are involved
5. Beneficiaries with bachelor degrees had a higher fraud rate than those with graduate degrees

Using the data in the BFCA assessment, Donald Neufeld, Acting Associate Director, Domestic Operations for USCIS, issued a memorandum on October 31, 2008, advising the Adjudicating Officers (AOs) when to send a case to the Center Fraud Detection Office (CFDO). The memo was not available to the public until recently. AILA (American Immigration Lawyers Association) secured a copy and released it on AILA InfoNet on May 22, 2012. The memo issues guidance on how to “mark” H-1B petitions that may be fraudulent. AOs are instructed to review an H-1B petition with a “heightened possibility for fraud” if certain factors exist. An AO must complete a Fraud Referral sheet prior to sending the petition to the CFDO.

The memo also references the CFDO “Compliance Review Report” to be used when performing an H-1B site visit. Site visits have become increasingly prevalent in the last 12 months. The report lays out what the officer should look for and includes a worksheet to follow. The “Site Inspection” report outlines questions relating to the bona fides of the business as well as specific questions related to the beneficiary.

The memo provides employers with helpful guidance for petitions and responding to site visits. A petition that meets at least two factors USCIS has identified should alert the employer it may be subjected to additional questions and even an inspection. Adequate preparation would go a long way to securing successful petitions.

 

 

Senator Charles Grassley, a Ranking Member of the Senate Committee on the Judiciary, has requested the Comptroller General of the United States and the Government Accountability Office (GAO) to “fully investigate” certain aspects of the Optional Practical Training (OPT) program. The OPT program allows foreign national students who have completed their studies in the United States to lawfully obtain employment authorization for one additional year to learn more about their area of study.

Senator Grassley’s May 31, 2012, letter asks the GAO to “fully investigate” the use of the OPT program, and to identify how student employment is tracked, what weaknesses exist with the program, and ways to improve program procedures and policies.

Senator Grassley notes that there has been an “upward trend” in approved applications for OPT and that the Department of Homeland Security (DHS) has denied only 2-3 percent of all applications submitted. He believes these statistics imply that the OPT program is “full of loopholes with few controls in place to determine if students are actually working, working where they claimed to be, or working in their field of study.”

Senator Grassley has identified his three main points of concern. First, he would like additional information on how DHS communicates with each college and university that participates in the OPT program and the specific criteria used by these institutions to decide whether a student is eligible for OPT. To this end, he also has requested additional information as to how DHS made the decision to expand the STEM (Science, Technology, Engineering, and Mathematics) program, which extends OPT beyond the one-year period for individuals in certain STEM fields.

Next, Senator Grassley requested information on whether the OPT and STEM-extension programs may undermine other U.S. visa programs or negatively impact American students who seek employment in one of these fields.

Finally, Senator Grassley implies that the OPT program may be a threat to national security because potential terrorists can remain in the United States instead of returning to their home countries. He admits that he has no statistics to support this concern other than one incident where a naturalized U.S. citizen, who participated in the OPT program many years prior, attempted an attack on Times Square after he obtained his citizenship. The Senator, pursuing this line of inquiry, asks for increased oversight to enhance the program’s integrity, even though the alleged link between foreign national student workers and potential terrorism is a completely unsubstantiated and unsupported notion.

The Senator has requested that DHS consider instituting substantive improvements to the OPT program to better address these issues. Whether or not such changes are on the horizon is unknown at this time. Jackson Lewis will continue to monitor this situation and alert our clients should DHS propose any changes to the current OPT program.

 

 

AUTHOR : Melina V. Villalobos

The Fair Labor Standards Act minimum wage provisions may apply to J-1 Exchange visitors regardless of their immigration status, a federal District Court for the Middle District of Florida has held. Chaturong Jatupornchaisri v. Wyndham Vacation Ownership, Inc., 2012 U.S. Dist. LEXIS 63633 (M.D. Fla. May 7, 2012). The FLSA prescribes standards for the basic minimum wage and overtime pay and applies to most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

A J-1 visa is a non-immigrant visa issued by the United States to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical or business training within the U.S. All applicants must meet eligibility criteria and be sponsored either by a private sector or government program.

The court did not address whether the plaintiffs were in fact treated as “employees,” as such a factual dispute was not ripe for adjudication on a motion to dismiss. Thus, while J-1 immigration status will not prohibit a court finding a FLSA violation, plaintiffs will still bear the burden to prove that they were in fact “treated as employees” by the employer to fall within the ambit of the minimum wage protections afforded under the FLSA.

The court was silent regarding whether an employer could be liable for FLSA damages and be subject to administrative sanctions; thus, if an employer fails to follow the FLSA minimum wage provisions, it could be subject to additional administrative action. See 22 C.F.R. § 62.50 (describing administrative remedies as “reprimands, suspensions, terminations, and the placing of various conditions on the sponsoring organization”).
 

Jackson Lewis attorneys are available to assist employers with this and other workplace requirements.

 

In November of last year, the cut-off dates for China and India Employment-based Second Preference Category (EB2) were at November 1, 2007.  This meant that Chinese and Indian national with priority dates of November 1, 2007, or earlier are eligible to file their I-485, Application for Adjustment of Status.  Unexpectedly, over the course of a few months, the dates shot up to May 1, 2010.  This rapid acceleration led to a significant increase in visa usage and the Department of State retrogressed the cut-off dates all the way back to August 15, 2007.  Despite this adjustment, the demand for visa numbers by applicants did not decrease sufficiently.  Thus, the Department of State has made the China and India EB2 category completely “unavailable.”  Absent any recalculations, visa numbers will continue to be unavailable for Chinese and Indian EB2 applicants until October 1, 2012, when the next fiscal year begins.  Further, the Department of State has advised that current indications are that the China and India EB2 categories will not return to the May 1, 2010, cut-off date before spring 2013.

USCIS began to accept petitions for H-1B visas that are subject to the Fiscal Year 2013 Cap on April 2, 2012.  The current annual Cap on available visas is 65,000.  Some petitions are exempt from the Cap under the advanced degree exemption.  The first 20,000 petitions received and filed for a beneficiary who has obtained a U.S. Master’s Degree or higher are exempt from the Cap. 

As of April 20, 2012, USCIS reports receiving 25,000 eligible Regular Cap petitions against the 65,000 available visas.

Additionally, USCIS reported that as of the same date, 10,900 eligible Master’s Degree Exempt petitions had been received against the 20,000 available.

 

The U.S. Supreme Court (with just eight justices sitting) has held oral argument on the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”) in Arizona v. U.S., No. 11-182. Justice Elena Kagan is not participating in the case because she was the Solicitor General and involved with the DOJ’s initial challenge to the Act.

The DOJ’s lawsuit challenges the following four key provisions of S.B. 1070:

• A provision that makes it a crime for an occupant of a car stopped on a street to hire and pick up (or attempt to hire and pick up) passengers for a different location if the vehicle blocks or impedes the normal movement of traffic.

• A requirement that law enforcement officers check a person’s immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally.

• A provision authorizing police to arrest immigrants without a warrant where "probable cause" exists that they committed any public offense making them removable from the country.

• A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government-issued identification.

The Ninth Circuit of Appeals sided with the DOJ and affirmed an Arizona federal district court’s decision to block enforcement of these provisions days before they were set to go into effect.

The Justices spent a significant portion of the 70-minute oral argument questioning the Solicitor General on the DOJ’s position that the statute is preempted by federal law. One of Justice Antonin Scalia’s quips may tip the direction of the Court: "If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?"

This is the second time in two years that the Court has been asked to decide the validity of an Arizona immigration statute. In May 2011, it upheld the Legal Arizona Workers Act, which requires Arizona employers use E-Verify for new employees and imposes significant sanctions on employers that knowingly or intentionally hire unauthorized workers.

A ruling is expected sometime in early summer. If the Court splits 4-4, the challenged provisions of S.B. 1070 will not take effect; however, the constitutional issues facing other recently enacted state immigration statutes throughout the U.S. may go unanswered for the time being.

Jackson Lewis will continue to follow this case.