Apologizing for inadequate outreach on its new protocol, the Citizenship & Immigration Service (CIS) has requested feedback on its “surprise” policy – implemented September 12 – to send original approval notices to Petitioners and Applicants directly, rather than the attorneys of record. Attorneys of record with properly filed Forms G-28 now receive unofficial “Courtesy Copy” approval notices. CIS said its new policy will ensure the original notices reach the Petitioner or Applicant and combat possible immigration service scams.

A number of immigration attorneys, including those from Jackson Lewis, complained of the sudden implementation of the policy and challenged the legality of such implementation. The regulations clearly state that notices shall be given to the attorney or representative of record.

When an attorney is hired to assist with an immigration filing, a number of safeguards are attendant to the attorney-client relationship, including:

• Document Integrity and Security – all notices and critical, original documents should be mailed to the attorney so that they can be verified to ensure the case was approved and the notice printed properly. The attorney is in the best position to advocate on behalf of the client to get any errors corrected. Similarly, most immigration attorneys are also responsible for case management tracking and other tasks that minimize the risk of extreme case delays and complications.

• Issues with I-9 Completion and Driver’s License Requirements – foreign nationals working in the U.S. in nonimmigrant status (e.g., H-1B, L-1, and O-1) are often required to show their original I-94 document when completing various state and federal applications. When a change or extension of nonimmigrant status is requested, the original approval notice contains the foreign national’s new I-94 card. Therefore, mailing to the wrong address can cause enormous delays and problems.

• Requests for Evidence Timing Deadlines – case processing often involves “Requests for Evidence (RFEs)” from the CIS, in which the adjudicating officer asks for information and documentation to supplement the case filing. RFEs are issued under strict processing deadlines, normally only 30 – 90 days. Failure to respond can result in a delay of the case, which can be detrimental to the foreign national’s status. Thus, RFEs “lost” in employer mailrooms or apartment buildings or temporary residences have resulted in employees losing work authorization and status.

Jackson Lewis is working with the American Immigration Lawyers Association (AILA) to persuade the government to suspend the new policy.

CIS said it will review all comments, as well as examples sent in through its Office of Public Engagement about this policy, but the policy stands.

Jackson Lewis’ immigration team represents national employers of all sizes in various industries. We are experienced in quickly implementing filing strategies for our employer-clients who are filing I-129 and I-140 petitions on behalf of foreign national employees. Employers should alert their attorneys of any mail from the Department of Homeland Security or CIS immediately.

Most employers with foreign national employees know that working with the Department of Labor (DOL) is an essential first step to securing permanent residency status on behalf of those employees. The permanent employment certification process (the “labor certification” or “PERM” process) requires employers to work directly with the DOL on two occasions – first, to obtain a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center (NPWC); and, second, to obtain a Permanent Labor Certification from the DOL’s Employment & Training Administration (ETA).

Traditionally, it takes approximately four weeks to get a Prevailing Wage Determination from the NPWC. There has never been a way to expedite issuance of a Prevailing Wage Determination. The wait is now longer.

Due to pending litigation against the DOL, there is now a significant backlog in the NPWC’s review and issuance of Prevailing Wage Determinations for PERM cases. Consequently, a Prevailing Wage Determination may take approximately 12 weeks. This has important implications for certain foreign workers.

The American Competitiveness Act of the 21st Century (AC-21), enacted in 2000, allows an employer to extend a qualifying employee’s H-1B status beyond the six-year maximum if a PERM application is filed on or before the expiration of the employee’s 5th year of H-1B status. The purpose of AC-21 is to minimize the adverse effect the lengthy employment-based permanent resident process has on an employer’s ability to retain qualified foreign national workers and to guarantee the employer the ability to engage in continuous, uninterrupted business throughout this process. Sponsoring employers are now finding themselves unable to secure AC-21 protection for employees whose 5th year of H-1B status expires within the next few months.

The unforeseeable, drastic delay in issuance of Prevailing Wage Determinations has not been addressed by the DOL. The agency has not provided a mechanism to expedite or prioritize wage issuance based on critical timing issues. Employers in this predicament are at risk of losing valuable employees or being forced to transfer them abroad (if possible) in order to remain compliant with applicable regulations.

From an employment law perspective, those employers who are in this predicament may have no option but to consider filing a federal court mandamus action to compel the DOL to adjudicate Prevailing Wage Determinations requests within a reasonable time. This may be the fastest and most effective way to remedy a very serious problem.

If you are an employer with foreign national employees who are at risk of losing AC-21 eligibility in the next several months, please contact a Jackson Lewis attorney to discuss the best strategy to satisfy your employment needs and obligations. We will continue to monitor development at the DOL and National Prevailing Wage Center.

Consider the dilemma of the newly drafted NHL hockey player from Canada. After signing his Standard Player Contract, obtaining his P visa, and loading up his gear and heading to the border with his long time girlfriend alongside to begin training camp, both are stopped at the border. The immigration officer inquires of the girlfriend of her intention to travel to the United States to accompany the player just for the duration of the season. She is turned denied entry and turned away.
 

What happened? The girlfriend in the above scenario was denied entry due to a concept called immigrant intent. The officers at the border made a determination that because she was not married to the player or otherwise in the possession of an independent student or work visa, the girlfriend most likely had the “intent” to remain in the United States never to return to Canada. Seem implausible or irrational? It is a frequent real life border situation that can be disruptive to a professional organization that is concerned with the smooth transition of its players (and significant others) to ensure focus on the ice.
 

Recently, in August 2011, the United States Citizenship and Immigration Services issued a revised Policy Memo that appears to provide a possible solution to the above scenario. The August 2011 policy memo stands for the proposition that border officials are now given discretion to grant B visa (tourist) entry to cohabiting partners or household members of nonimmigrant visa holders.
 

Immigration defines cohabiting partners and household members as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”
While the ultimate approvability of the visa is at the discretion of the reviewing officer, this policy change appears to provide a policy basis to permit the live-in girlfriends of professional foreign athlete to enter the United States to accompany the player for the duration of the season.
 

Members of the Jackson Lewis Global Immigration Group can also assist with the analysis of how this new cohabiting partners policy change can be applied to scenarios outside of professional sports.

The Department of Justice has announced a record anti-discrimination settlement agreement with Farmland Foods, Inc. involving allegations that the company engaged in a pattern or practice of discrimination during the I-9 process. According to the DOJ, Farmland, a major U.S. producer of pork products, allegedly required newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Illinois plant to present specific and sometimes extra work-authorization documents not required by law. Farmland has agreed to pay $290,400, the highest civil penalty in an anti-discrimination settlement. It also has agreed to train its human resources personnel about proper I-9 procedure and provide periodic reports to the DOJ for monitoring purposes.
 

According to the lawsuit filed on behalf of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Farmland extended a conditional offer of employment to a naturalized U.S. citizen on December 2, 2009 and asked the new hire to complete the I-9 form. At that time, the individual presented a driver’s license (List B) and an unrestricted Social Security card (List C). After the employee started orientation, Farmland (through its agent) submitted the individual to E-Verify and received a tentative nonconfirmation (TNC). Rather than having the employee go through the TNC process (which would have involved talking to a DHS representative or visiting SSA – actions not involving the employer), Farmland allegedly asked the employee to bring in her naturalization certificate and/or other documents to prove her citizenship. While it’s not clear from the complaint how the employer reacted, eventually the OCS was contacted.
 

According to the complaint, Farmland routinely has engaged in a pattern of discriminatory documentary practices in its Monmouth plant since at least December 1, 2009. Between December 1, 2009 and January 26, 2011, the OSC alleged that Farmland required non-U.S. citizens to specifically produce a “List A” document issued by the Department of Homeland Security in addition to other documents. Employees attesting to be a “lawful permanent resident” for example, would be required to produce an I-551 permanent resident card and employees attesting to be “an alien authorized to work” would be required to produce an I-766 employment authorization document. Meanwhile, the large majority of U.S. citizens hired were allowed to produce varied List B and List C documents without restriction.
 

According to the OSC, Farmland:
• Required 100% of non-U.S. citizens to produce a “List A”, while only 4.9% of U.S. citizens were required to do so.
• Required 100% of non-U.S. citizens to produce identity and work authorization documents in addition to a “List A” documents during the Form I-9 Employment Eligibility Verification process, while only 1.6% of U.S. citizens were required to do so.
• Required 88% of the non-U.S. citizen employees to produce a List A, B, and C document, while only 0.8% of the U.S. citizen employees were required to do so.
 

Interestingly, for the non-U.S. citizen employees, Farmland only recorded the List A document on section 2 of the Form I-9 and attached photocopies of the additional documents to the Form I-9. Thus, on the surface, this would not have appeared to be over-documentation. Regardless, Farmland’s demand for specific or excessive documents to establish work authorization clearly violated the anti-discrimination provision of the Immigration and Nationality Act (INA).
 

The lesson learned from this case is that it is not enough to have the I-9 boxes completed correctly. The process behind the I-9 is complex and should be examined. Over-documentation is a serious issue that the OSC will pursue. Experienced compliance counsel should be consulted to ensure your organization is in compliance with all applicable regulations.
 

The United States Immigration and Customs Enforcement (“ICE”) has announced that, as at July 21, 2011, it has fined 14 employers in New England this year for hiring illegal aliens in violation of law.

The companies were the subject of an investigation and audit of their Form I-9 documents, which is part of ICE’s ongoing worksite enforcement strategy. Following investigation, the companies, located from Massachusetts to Maine, were subjected to fines ranging from $23,000 to more than $100,000.

Nationally, ICE has been pursuing a worksite enforcement strategy, launched in 2009, to reduce demand for illegal employment of aliens and to protect employment opportunities for America’s legal workforce. This strategy has focused on auditing and investigating employers suspected of hiring workers later determined to be unauthorized for employment in the United States.

As quoted by Bruce M. Foucart, Special Agent in charge of ICE in Boston:

“These settlements serve as a reminder to employers that ICE will continue to hold them accountable for hiring and maintaining a legal and compliant workforce. We encourage companies to take the employment verification process seriously.”

ICE’s continued focus on worksite enforcement warrants employers’ ensuring their compliance with the employment verification process. Employers must complete and retain a Form I-9 for every individual hired for employment in the United States. Each employee is required to provide the employer with proof that the employee is authorized to work in the United States. Failure to properly complete the employment verification process can lead, at a minimum, to fines or, depending on the seriousness of any uncovered violations, a criminal investigation of an employer by ICE.

The Global Immigration practice of Jackson Lewis routinely advises our clients in navigating the employment verification process.
 

As more and more states pass legislation mandating use of E-Verify, a federal E-Verify mandate seems inevitable. Recently, Representative Lamar Smith introduced the first attempt at such a federal mandate, the Legal Workforce Act.

The Legal Workforce Act would preempt existing state E-Verify laws and repeal the current paper Form I-9 system, replacing it with a completely electronic system. It would be phased in as follows:

• Employers with 10,000 or more employees: 6 months after enactment
• Employers with 500-9,999 employees: 12 months after enactment
• Employers with 20-499 employees: 18 months after enactment
• Employers with 1-19 employees: 24 months after enactment

The bill also includes special provisions for agricultural employers, phasing those employers in after 36 months and treating seasonal workers as existing employees, as opposed to new hires. As with the current rules, the bill would grant employers safe harbor from prosecution for employing unauthorized workers if they used the E-Verify program in good faith.

In introducing the bill, Representative Smith cited high unemployment, voter support and strong bi-partisan support. He is quoted as saying, “With unemployment at 9%, jobs are scarce. Despite record unemployment, seven million people work in the U.S. illegally. These jobs should go to legal workers." It remains to be seen whether Smith will get the bi-partisan support needed to pass the bill. Presently, it still sits in committee.
 

With employers’ increased use of electronic Forms I-9 and more states mandating use of E-Verify, a number of electronic I-9 and E-Verify vendors are offering services to help employers with these demands. However, difficulty can arise for employers if the ownership of data and the terms of that ownership are not clear, as illustrated by a recent lawwsuit.

Furthermore, some background screening providers, applicant tracking system providers, and all-in-one human resources solutions providers are reselling the electronic I-9 and E-Verify functions to third-party vendors, which can further complicate issues regarding data ownership and access.

While these services are useful and can streamline the on-boarding process, employers must be diligent to ensure that they maintain access to all I-9 and E-Verify data.

If audited by the Immigration and Customs Enforcement (ICE) (see our earlier post, ICE to Issue 1,000 Audit Notices to Employers, Focus on Infrastructure Safety), employers have only three days to gather the requested information for ICE. Therefore, it is critical that employers can access their data quickly. When choosing an electronic I-9 provider or a system with a reseller arrangement, employers should ask:

1. Who owns the I-9 and / or E-Verify data?
2. Where is the data stored?
3. Is the data commingled with other employers’ data?
4. Can the employer request a backup of the I-9 and E-Verify data at any time?
5. What is the cost of a data backup?
6. In what format will the backup be provided?
7. What happens to the employer’s data if the vendor changes its resellers?
8. What happens to the employer’s data if the vendor or reseller goes out of business?

There are specific electronic I-9 retention system regulations that can affect every aspect of a vendor’s system and the employer’s relationship with the vendor. It is important that employers speak with experienced counsel before entering into an electronic I-9 or E-Verify vendor relationship.

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) office has announced it will notify 1,000 employers across the country the agency will audit their hiring records to determine compliance with employment eligibility verification laws. These Notices of Inspection (NOIs) often request not only I-9 documentation, but payroll records, copies of immigration filings, copies of Social Security Administration communications requesting corrections, information on independent contractors, and related information. All documentation normally must be produced within three business days of the employer’s receiving the Notice.

ICE says the employers targeted are those whose businesses have a key role in keeping national infrastructure safe. The 17 sectors singled out for the enforcement action include those associated with agriculture and food, financial services, commercial nuclear reactors, drinking water and water treatment, postal and shipping, healthcare, and transportation. According to ICE, “The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.”

In February, ICE had investigated 1,000 employers. This latest action continues the upward trend of yearly audits, bring the number of I-9 audits for fiscal year 2011 to more than 2,300. The agency conducted 2,196 audits in fiscal year 2010 and 1,444 in fiscal year 2009. For more information on how to get your company prepared for such an audit, see our I-9 compliance tips.

Fraud Detection Unit

In addition to the I-9 inspections, U.S. Citizenship and Immigration Services, another arm of the DHS, has again stepped up its efforts to investigate and combat fraudulent use of immigration programs. The Fraud Detection Unit first started making random site visits in late 2009. A visit usually involves an unannounced drop-in by a USCIS agent or contractor who reviews the employment conditions of a nonimmigrant worker, usually H-1B employees. The agent will request to speak to the employee, review the workplace, and review payroll and related records. For a more detailed description of a site visit, see H-1B Employers: Prepare for Site Visits From USCIS.

What Employers Can Do

These government crackdowns on employers represent a key part of DHS’s immigration enforcement policy, emphasizing employer audits rather than the high-profile workplace raids of the past. It appears employers will continue to be targeted.  If you receive a Notice of Inspection, immediately contact your counsel. The window for response is short. It is critical that employers review thoroughly the documents gathered in response to the Notice and that the documents be well-organized and presented in the best light possible.

Employers who have not received a Notice this time around should take the opportunity to review and audit their records internally. For more information on how our Global Immigration Practice Group can assist you, see ourI-9 Compliance Brochure.
 

Fulfilling a campaign promise, Georgia Governor Nathan Deal has sign into law a sweeping immigration bill that will affect companies in Georgia that employ more than 10 full-time employees. The law, HB87, requires companies to register with the federal E-Verify program and check the legal status of new hires. It also creates the offense of “aggravated identity theft” for the use of false information. In addition, it allows the police to question individuals about their immigration status and mandates sanctions for those who harbor or transport undocumented migrants.

HB87 passed by a vote of 112-59 in the lower house and 39-17 in the Senate. The Senate’s effort to block the portion of the bill that required use of the federal E-Verify system to ascertain the immigration status of employees failed.

In addition, businesses in Georgia must begin using E-Verify as early as January 1, 2012, depending on the size of the business. Those with 500 employees or more must begin using E-Verify on January 1, 2012; those with 100-499 employees, July 1, 2012; and those with 11-99 employees, July 1, 2013.

In addition, beginning July 1, 2011, anyone who knowingly transports or harbor an illegal immigrant or encourages an illegal immigrant to come to Georgia could be fined up to $1,000 and be imprisoned for up to 12 months.

 

In President Obama’s May 10th speech at Chamizal National Memorial, at the U.S.-Mexico border in El Paso, on the need for immigration reform in the United States, he included an outline of his proposal for comprehensive immigration reform and a plea for people to voice their support.

His proposal addressed three key employment-related areas. First, in line with his administration’s immigration enforcement strategy, he emphasized the need to hold businesses accountable for the exploitation of undocumented workers. Second, he encouraged the creation of a path for the best and the brightest studying at U.S. universities to remain in the U.S. to start businesses and create jobs. Finally, he proposed providing U.S. farms a legal way to hire foreign workers.

Jackson Lewis continues to monitor the prospect of reform and its potential impact on all employers.