“Hi, this is Kevin."


“Hi Kevin, it’s Sally at ABC Company. We need your help again. ICE Special Agents came by the worksite again today and delivered a Notice of Inspection for our Forms I-9 and supporting documents. They limited the inspection to the I-9s for active AND separated employees hired after their last inspection, but were sure to mention that they’re taking a look at our old mistakes to see if we’ve learned from the last time we were inspected . . .”


“Sure Sally. You’re not the first of our clients to be revisited by ICE. We’ve got the team in place, and we’re ready to get to work.”

Calls like this one will be increasing for immigration lawyers. The Obama administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to ICE.

Obviously, ICE offices has kept track of employers targeted for re-evaluation. ICE has not discussed any plans for the NOIs, but has confirmed that “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections.” You do not need to have run afoul of the law before to feel ICE’s heat. The Obama administration has reimposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem even for first time infractions.

We expect additional ICE initiatives to continue throughout 2012 (it is an election year). Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for tough enforcement efforts . For now,, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

Read more.
 

Speaking before the American public (and Snow White, the Seven Dwarfs, and Mickey Mouse at Disney World), President Barrack Obama announced an expansion of the Global Entry program, including the easing of B1/B2 tourist processing times at consular posts around the globe, among other things.

Global Entry is a U.S. Customs and Border Protection program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. The program is intended for frequent international travelers—mainly executives and managers for multinational corporations. Those approved for the program enjoy a streamlined admission process at U.S. airports after international travel into the United States. There is no minimum number of trips to qualify for the program.

By executive order, the President ordered the Secretaries of State and Department of Homeland Security to submit jointly a report describing the progress of achieving the goal of expanding Global Entry. The initiative seeks to ensure that the country remains secure while increasing travel and easing transactions costs (e.g., time during inspection) into the United States. The Jackson Lewis Global Immigration Group anticipates that the report will request finalization of regulation ending the current pilot program, making it permanent for additional U.S. international airports, and reducing average wait times at primary inspection to fewer than five minutes.

Multinational employers should contact their counsel to discuss how they may take advantage of the program for their frequent flyers—executives, management, and highly-skilled labor.
 

The DOL Administrative Review Board has decided that employers are responsible for paying wages to H-1B foreign nationals who—but for a delay in the Social Security Account enumeration and card issuance process—would be actively employed. The same rule likely will be applied to other nonimmigrant workers who experience delays in Social Security number processing.

The Board held the employer must pay the H-1B worker for her nonproductive activity during the time she was awaiting the delivery of her Social Security Card. Under 20 C.F.R. § 655.731(c)(7)(i), if the H-1B nonimmigrant is not performing work due to the employer’s requirement that she obtain a Social Security Card before commencing employment with the employer, the employer must pay the employee at the required wage for the occupation listed on the Labor Condition Application filed with the DOL. USDOL & Wirth v. University of Miami Sch. of Med., ARB Case No. 10-090, 10-093, ALJ Case No. 2009-LCA-026 (Dec. 20, 2011).

A Social Security Number is not required for employment verification (I-9) purposes, but many employers require it for payroll processing. H-1B employees are authorized to work upon lawful admission to the United States. Accordingly, to the extent that an employer requires a Social Security Number as part of payroll processing, it must be prepared to pay the employee if it elects to delay employment during the SSA enumeration process.

The DOL likely will apply this rule to other nonimmigrant categories, including the L-1, H-3, E-3, and O-1. Therefore, employers should consider practices that will allow these authorized workers to start employment while waiting for Social Security enumeration. Such practices include setting up a temporary payroll profile with a “dummy” number and updating the profile once the number is issued.

An employer that participates in E-Verify must verify its employees’ Social Security Numbers through the free federal program. Thus, such an employer needs the employee Social Security Numbers and should set a projected start date that allows enough time for Social Security processing.

Whatever the case, employers must now be mindful of payment responsibilities for foreign nationals sponsored to work for the employer in the U.S. Once the approved start date hits, so does the wage/payment requirement, requiring that employers who insist on Social Security Numbers from all employees take a more active role in tracking and advising employees how and when they should apply.

The American Enterprise Institute (AEI) and The Partnership For A New American Economy have released a study that found that immigrants boost employment for U.S. natives. The purpose and goal of the study, by Madeline Zavodny and entitled “Immigration and American Jobs,” was to explore the effect foreign-born employees have on the overall U.S. job market and to identify ways in which immigration policy and reform can affect innovation and job growth in the United States. Using data from the U.S. Census Bureau and other sources, the study concludes that immigration policy can and should be a significant component of America’s economic recovery.

The study found that immigrants with advanced degrees, specifically, in science, technology, engineering, and mathematics (STEM), boost employment for U.S. natives. In fact, between 2000 and 2007, employment of an additional 100 foreign-born workers in STEM fields with advanced degrees from U.S. universities was associated with an increase of 262 jobs for U.S. natives.

Additionally, according to the study, temporary foreign workers, both skilled and less skilled, also boosted U.S. employment over the same period. Adding 100 H-1B skilled workers to the U.S. workforce resulted in an additional 183 jobs among U.S. natives. Even more notable was that adding 100 H-2B (less-skilled) workers to the overall workforce resulted in an additional 464 jobs for U.S. natives; an impressive statistic that seems to counter the mainstream perception that less-skilled immigrant workers have a negative impact on the U.S. job market and “steal” jobs from U.S. workers.

To illustrate this in a real-world context, the study provides the following example: If an employer is able to hire more foreign-born roofers, American contractor can ultimately build more houses and hire more U.S. workers. This can include U.S. workers in both skilled and less-skilled positions, such as workers for the “front office” and “foremen” to supervise workers.

The study found no evidence that foreign-born workers, in the aggregate, hurt U.S. employment. The empirical data demonstrated that immigration policy actually was a growth factor for the U.S. economy. Therefore, the study suggests, policy reform should be a significant component of America’s economic recovery.

While the most recent bi-partisan federal legislative effort to enact immigration policy reform appears to be stalled in committee, studies like this may yet restart the movement for comprehensive reform by correcting perceptions and identifying the positive benefits the right legislation can have on the U.S. job market.

Jackson Lewis will continue to monitor both state and federal legislative activity and will keep you updated on policy changes that may impact employers and their foreign national workers.

 

The U.S. Supreme Court has agreed to hear the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). Last year, the DOJ filed a lawsuit challenging several of the Act’s provisions on federal preemption grounds, arguing the federal government has exclusive authority to address immigrations issues and policy. A federal district court in Phoenix blocked enforcement of the Act’s most controversial provisions days before they were scheduled to go into effect. On April 11, the Ninth Circuit Court of Appeals sided with the DOJ, affirming the lower court’s decision.

The case could be heard by the Supreme Court as early as April of 2012. Only eight of the justices will hear the case, Justice Elena Kagan recused herself because she was the Solicitor General involved with the Obama Administration’s initial legal opposition to S.B. 1070. Therefore, if the Court splits 4-4 on the legal challenge, the provisions will not take effect. Such a the decision, however, will not settle the larger constitutional issues at stake in the case. Since the Arizona statute was enacted, at least four other states (Georgia, Alabama, Utah, and South Carolina) have enacted similar legislation, which are currently facing challenges in the lower courts.

This will be the second case challenging an Arizona immigration statute to go up to the Supreme Court in as many years. In May 2011, the U.S. Supreme Court, upholding the statute, rejected arguments that Arizona’s Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program. In the months since the Supreme Court’s decision, there has been an increase in the number of LAWA investigations by law enforcement officials. That trend is expected to continue.

We will continue to monitor these legal developments. Jackson Lewis attorneys are available to answer any questions concerning compliance with the growing number of state immigration statutes.

 

 

Employers navigating the I-9 employment eligibility verification process for new hires are confronted with a gauntlet of confusing rules, standards, and exceptions to the rules that some have opined are deliberately designed to make the innocuous looking one-page form a magnet for errors. Such cynics cite the year-over-year increases in civil fines being levied by ICE on employers through the continuing national workplace audit campaign the agency is prosecuting as proof of a fatally flawed system.

 

While the social security number is an optional field on the form according to the latest M-274 Handbook for Employers, the forms will be considered deficient and employers may be subject to fines based on a variety of issues which may appear to be “harmless error” from a common sense perspective, including among others: missing date, signature on the wrong line, notation to “see attached” copies of identification, correct ID data listed in under the wrong list, etc. Employers who have been through the experience of an I-9 audit have become sensitive to the precision required in completing the forms fully, and ICE’s audit and public relations campaigns have conditioned employers to err on the side of completeness in this arena for fear of being heavily fined.

Unfortunately, rules governing I-9 form practice and fines do not focus exclusively on the issue of incompleteness. Employers who fail to walk the legal tightrope of “just enough, but not too much” risk incurring the wrath of the Department of Justice’s Civil Rights Division Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The DOJ has announced that a public employer has been sued for alleged Immigration–Related Employment Discrimination for too zealously checking the work authorization of foreign employees. The employer allegedly discriminated by dictating what documents a foreign employee must present at hire, contrary to the I-9 rule which mandates that the employee be given a choice of what to present. Similarly, lawful permanent residents were allegedly required to bring in updated work authorization documents when their current “green card” documents expired or they would risk termination, contrary to I-9 work authorization re-verification rules.

The bottom line for employers is that in their management of I-9 employment eligibility verification, keeping the “Goldilocks principle” in mind and treating all employees the same regardless of their citizenship or national origin is key to avoiding liability with either ICE on the one hand, or OSC on the other hand.

 

The Department of Labor’s Employment and Training Administration has issued a final rule delaying the effective date of a new H-2B wage calculation regulation.

Throughout 2011, the DOL and the Small Business Association (among other interested groups) have been at odds over the proposed change to the way prevailing wages are calculated for H-2B workers.

Rather than use the traditional wage calculation (from a market survey), the proposal calls for employers to pay H-2B (and U.S. workers recruited in connection with a temporary labor certification application) a “wage that meets or exceeds the highest of the following: the prevailing (market) wage, the federal minimum wage, the state minimum wage or the local minimum wage.”

Thus, as successfully argued by challengers of the proposed rule, DOL would be artificially inflating the prevailing wage assessments by relying upon the federal minimum wage (which is usually higher) for most temporary jobs. The determinations being made by DOL at the end of this year have been onerously high—such that the H-2B program was no longer economically viable.

Most employers would prefer to rely upon the market wage rather than the wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment,

Mounting political pressure from the agricultural, hospitality, travel, and landscape-maintenance industries, among others, has prompted President Barack Obama to include a prohibition to the Government’s provision of funding to the DOL to administer the proposed rule in the continuing appropriation resolution.

Bottom line: it appears that the business community was able to sway the White House to help prevent the DOL from effectively shutting down the H-2B program. At the DOL’s artificially inflated wage rates, an employer would be hard pressed to find a way to make the program work. When competitors are able to pay the lower market wage for employees, it makes no sense for an employer to apply for an H-2B certification, at a much higher wage.

For now, the H-2B guestworker program is still viable for employers looking to fill peakload or seasonal positions with foreign workers. But it’s only a matter of time before DOL takes another crack at shutting-down the H-2B process.
 

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act) has released a Fact Patterns Flyer.

The flyer provides examples of recent OSC prosecutions that resulted in employer-paid settlements to the Department of Justice for what the agency describes as common immigration-status-based discriminatory conduct by businesses.

Presumably, the flyer was prepared to educate employers about the risks associated with faulty Form I-9-related compliance practices and provide employees with a list of conduct that may be the basis of a complaint and agency investigation. The list includes the following:

• When an employer demands specific documents from a new hire;
• When an employer asks certain employees for more documents than are necessary to complete the Form I-9;
• When an employer rejects work authorization documents from non-U.S. citizens, but accepts the same documents from U.S. citizens;
• When an employer demands that lawful permanent residents present new “green cards” after the original document presented expires, but does not demand the same of U.S. citizens;
• When an employer refuses to hire workers who sound or appear foreign;
• When an employer hires non-immigrant visa holders, but rejects U.S. citizens and other work-authorized individuals who apply for work;
• When an employer hires undocumented workers instead of work-authorized individuals;
• When an employer separates work-authorized workers for lying about their prior undocumented status, but does not fire other workers for lying about different aspects of their background;
• When an employer separates employees for whom it receives an E-Verify “tentative nonconfirmation” (TNC) notification on a selective basis;
• When an employer uses E-Verify to pre-screen applicants on a selective basis; and
• When an employer pre-screens all applicants, but does not hire applicants for whom it receives no-match notifications or E-Verify TNC notices.

Although the list is non-exhaustive, these real-world examples have resulted from successful investigations by DOJ and its standards and definitions for what constitutes violations of the law.

Employers may find the Fact Patterns Flyer helpful in assessing their conduct. Employers also may consider the following:

(1) Injured parties need only file a discrimination charge to begin the administrative adjudication process—there is no independent review of the veracity of the allegations completed by the agency prior to its demand to the employer for an informal response to the allegations. In other words, credibility of the initial claim is presumed.

(2) OSC also will initiate an independent investigation based upon information developed during the individual charge investigation, and will commonly liaise with other government agencies to support the charge that the employer’s compliance failures evidence a pattern or practice of discriminatory activity. Essentially, an employer must prepare for the possibility of a systemic investigation that flows from a single, individual claim by an allegedly-aggrieved employee.

Understanding the complexities of the verification process is only the beginning. An employer also must be able to point to standard policies and consistent operating procedures that may serve as a backstop to government allegations of company-wide discriminatory activity. Unless an employer may deflect OSC’s interest in examining its verification practices in every location of the organization with the support of sister-enforcement-agencies, like Immigration and Customs Enforcement, CIS Fraud Detection, Department of Labor Wage & Hour, and IRS auditors, the consequences of the investigation may jeopardize the business well beyond the one employee.
 

Director of Immigration and Customs Enforcement (ICE) John Morton has announced record numbers of worksite enforcement investigations, criminal prosecutions, and administrative-fine-awards for FY2011.

As the investigative arm of the U.S. Department of Homeland Security, ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal border control, customs, trade, and immigration laws.

As a primary part of its immigration enforcement effort ICE has targeted employers that recruit, hire, and continue to employ unauthorized foreign nationals. ICE’s comprehensive worksite enforcement strategy is focused on deterring unlawful employment. ICE believes its increased investigative activity will have the effect or driving all employers toward instituting fairly conservative standard operating procedures to cultivate a culture of compliance with the nation’s immigration-related employment laws. In testimony before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Morton indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.

As of September 17, 2011, ICE instituted 3,015 administrative/criminal investigations—a 54% increase over FY2008. In FY2010, ICE arrested and criminally prosecuted 196 owners, HR managers, and executives—a 45% increase over FY2008. ICE refused to release statistics on those employers subject to potential criminal prosecution who negotiated with ICE or U.S. Attorneys to enter into deferred prosecution agreements.

In FY2011, ICE issued a record 2,393 Notice of Inspection (for federal Forms I-9 and supporting documents), a more than 375% increase from that issued in FY2008.

ICE has issued 331 final administrative fine orders in FY2011, totaling more than $9 million in fines levied on employers (it issued to 18 final orders in FY2008, totaling $675,000 in fines). In addition, FY2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitution.

“Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right. We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals,” Morton said.

Employment verification compliance requirements are onerous, but employers must remain vigilant. Employers with multi-state locations also must consider supplemental state verification compliance requirements. To the extent that ICE must review an employer’s Forms I-9 prior to coming to a conclusion about the rate of employment of unauthorized foreign nationals, all employers are at risk. Now is the time to minimize exposure.
 

Alabama’s controversial requirement that school officials determine, prior to enrollment, whether a student is legally in the United States was blocked by the federal court of appeals on October 14, 2011. The Justice Department brought the lawsuit on the basis that the state law is pre-empted by federal immigration law.

Reports of bullying of children have increased since the passage of the Alabama law on June 9, 2011. In addition, parents have been pulling their children out of school for fear of exposing them to racial profiling, vigilante enforcement and removal from the United States. The full economic and social impact of Alabama’s and other states’ immigration laws is yet to be seen. Alabama is not the first state, nor will it be the last, to enact immigration provisions that will directly impact employers, employees and their families, as the nation struggles with the issue of immigration.