Are you subject to the Federal Acquisition Rule’s (FAR) E-Verify requirements?Many companies mistakenly think they are subject to FAR and therefore required to use the E-Verify System.

FAR sets out certain prerequisites for determining whether a government contract makes an employer subject to mandatory E-Verify Registration. For example, the contract period must be for at least 120 days and the contract value must be for at least $100,000. More importantly, however, the contract also must contain the FAR provision. Many employers seem to miss this point. They worry needlessly whether they should be using E-Verify when the clause is not in the contract. Existing contracts can be modified to include the clause, but until your contract is modified, or you receive a new contract with the FAR clause, you should not be subject to the E-verify requirement.

The contracting government official, not DHS or SSA (unless they also are the contracting agency), determines if you are subject to the requirement. In negotiating your contract, you can argue why you should not be subject in order to keep the clause out of the contract. For example, if you believe your product meets the commercially available off-the-shelf (“COTS”) exemption, try to persuade the contracting official to omit the clause from your contract in the first place.

While E-Verify is always an option for new hires, remember it can only be used for the entire workforce or employees assigned to the contract if you have a FAR clause. Using it in this context without the clause also is a violation.  Many issues surrounding the FAR E-verify clause remain unsettled as this is still a relatively new regulation. The government has been addressing questions as they arise and may issue a new Memorandum of Understanding in the future. Watch this blog for the latest developments on E-verify compliance and strategy.
 

The Social Security Administration (SSA) No-Match Rule illustrates the problem employers can face when intensive government scrutiny is combined with a lack of government guidance. This problem was further exacerbated by the Citizenship and Immigration Services’ (CIS) announcement in November of 1,000 I-9 Audits.

This issue arose in 2007, when DHS issued guidelines for employers confronting SSA “No-Match” notices. However, the SSA initiative was enjoined quickly by federal court order and never took effect. Prior to the injunction, the SSA issued “No-Match” letters to employers on an annual basis, notifying them of employees whose social security information presented to employers did not match information contained in the government’s database. In some cases, the discrepancies were acknowledged to be SSA error, others resulted from name changes of which individuals had failed to inform SSA, and some pointed to possible fraud or identity theft by the employee.
Employers were left with little guidance, however, since the No- Match letters expressly cautioned against taking “personnel action solely based on this letter.” Employee advocates warned employers of discrimination issues, arguing that affected employees should be given many months to address the issue while remaining at work.

The No-Match Rule would have required employers to take concrete steps over a defined period to address employee social security discrepancies, or risk being charged with “constructive knowledge” that their employees were undocumented. Briefly, the Rules called for employers to check their records and to ask employees to resolve any discrepancies within 90 days. It also instructed employers to reverify an employee’s work authorization with documentation not listing the questioned social security number if the discrepancy could not be resolved within that timeframe.

Despite the government’s attempt to clarify the Rule and its justification through an economic impact analysis in March 2008, the No-Match Rule eventually was withdrawn and abandoned entirely under the new Administration.

After all this, employers are back to square one. They have to determine for themselves what steps to take when No-Match issues arise. With government audits on the increase, legal counsel have been getting more requests to advise on these issues. This blog will continue to update you on this developing area of the law.

 

The Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009 (“CIR ASAP”) has been introduced by Rep. Luis V. Gutierrez (D. Ill.). The bill proposes a broad array of changes to the visa system, some of which may place additional burdens on employers:

Included in the bill, introduced on December 15, 2009, are measures to reduce immigrant visa backlogs for highly-skilled workers and expansion of the EB-5 investor immigrant visa program. There also are provisions for a new lottery-based temporary visa for unskilled workers and a special six-year visa to allow currently undocumented aliens an opportunity to apply for permanent residence through a points system.

The bill includes proposals for enhanced border security, employer immigration enforcement and employment authorization verification. In addition, the bill modifies existing policies to increase employer obligations for companies who utilize the H-1B, H-2B and L-1 Visa programs. Particularly troubling is the proposal to require recruitment prior to filing H-1B visa petitions.

While CIR ASAP contains interesting proposals for resolving the problems employers face in finding low-skilled workers who are in the U.S. lawfully, the measure does not offer employers much to ensure that they will be able to access the highly-skilled workers required by the U.S. economy. The proposal for a Commission on Immigration and Labor Markets will be particularly problematic for employers, as such a body is unlikely to be able to predict the need for various types of workers or respond timely to market changes. A self-adjusting, demand-based visa allocation system would better meet the needs of the economy.
 

Although the economy has hit all employees hard, Reductions-in-Force (RIFs) have a disproportionate affect on H-1B employees. When an H-1B employee is terminated from employment, that employee must deal with not only the financial difficulties of a layoff, but the additional complexity of losing authorized status in the United States as of the day of the termination. Even if the individual were to find employment subsequent to the termination, there are many issues in switching employers legally. 

Anytime an employer terminates the employment of an H-1B worker, the employer is liable for reasonable costs of return transportation abroad. Moreover, the employer should withdraw immediately its H-1B petition with United States Citizenship and Immigration Service (“USCIS”), to avoid “front” and “back” pay obligations. The petition, however, may be automatically revoked if the employer goes out of business. 

If a new employer wishes to hire an H-1B individual terminated by a previous employer, the new employer should keep in mind that the individual may need to return to his home country to obtain an H-1B visa if employment has ended prior to the filing of the new employer’s application and his beginning new employment. The Immigration regulations do not provide a grace period from the time the individual ceases employment until the new petition has been filed to find a new position and sponsoring company. 

Other major changes in employment, such as location, duties, or level of responsibility, may require the filing of an amended H-1B petition. While a corporate reorganization may not trigger a duty to amend the petition with the USCIS, this must be analyzed on a case-by-case basis. 

Understanding the immigration implications for H-1B workers that may be part of a RIF or other corporate change can make all the difference in mitigating both financial and personal issues for employers, H-1B employees and their dependant family members.

This just in! As of December 8, 2009, approximately 61,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Look to this blog for ideas on how to find solutions to the H-1B cap being hit for fiscal Year 2010.

In 2008, Microsoft founder Bill Gates stated that the United States has a “[c]ritical shortfall of skilled scientists and engineers who can develop new breakthrough technologies.” He stressed, “Without people who have the skills necessary to drive the next wave of technology innovation, it will be impossible for the United States to retain its global innovation leadership.”

Regardless of the changes in the economy and political views toward immigration, statistics demonstrate a clear relationship between innovation and immigration. Over 50% of engineers and 45% of mathematicians, computer scientists, life scientists and physicists holding Ph.D.s currently working in the United States are foreign born. In addition, 29% of engineers, 37% of math and computer scientists and 25% of physicists holding Master’s degrees are foreign born. Approximately 25% of international patents filed in the United States in 2006 were submitted by immigrants.

The United States has long been the desired destination of immigrants worldwide. In recent years, there has been a major drop in levels of immigrants in “high IQ” positions. As the country seeks to regain its position as a global leader, it is essential to embrace those who can contribute to our intellectual capabilities. By creating a simpler and more accessible path to immigration, we can again attract the world’s talent, which will only increase our global competitiveness.

Some may argue that America was built on the backs of immigrants. To my mind, however,the best solution to our economic problems rests not on the backs of immigrants, but in the power of their minds.

Undeniably, America is and will continue to be a nation of immigrants. Immigration is a vital part of our history and remains important today. It is inextricably bound up in our politics economy, international trade, health care, national security, employment and education. Our country’s immigration laws, however, can be confusing and often are misunderstood.

The mission of this blog is to educate readers on our immigration laws. It will cover issues, history and policies affecting immigration both in the United States and worldwide. We hope to celebrate immigrants and raise awareness of the contribution they have made to our country and culture. The world may feel smaller because of technological advances, but the most important asset of any company remains its human resources, including employees new to the United States.

As the principal contributor to this blog, and an immigrant myself, immigration is an intensely personal topic. I remember standing in a crowded convention center filled with hundreds of joyful new Americans, many with tears of happiness flowing, as I took my oath of citizenship. I was only 18 at the time, but I remember distinctly my feeling of pride and awe when I was welcomed as a United States citizen. It is a feeling I re-live with every case we conclude successfully.

The attorneys of the Jackson Lewis Global Immigration Group have helped employers with petitions for tens of thousands of immigrants. We welcome you to this blog.

Sincerely,
Davis Bae
Attorney at Law and Naturalized American Citizen

America’s rise through immigration creates a great irony. What we consider products of a distinctly American culture may not be “American” at all. Many would not exist but for the contribution of some amazing immigrants. On this Thanksgiving Day, let us recognize some of these extraordinary people.

The list of foreign-born Americans who shape our nation is awe inspiring. In business, there is Bjarne Stroustrup, Danish-born inventor of C++ (a computer programming language); Andrew Grove, Hungarian-born founder of Intel Corp.; Jenny Ming, Macau-born CEO of Old Navy; and Liz Claiborne, Belgian-born fashion designer.

In sports, there is racing great Mario Andretti, hockey legend Wayne Gretzky, tennis immortal Martina Navratilova and baseball phenomenon Ichiro Suzuki. The list in arts is extraordinary and includes Yo-Yo Ma, Michael J. Fox, Ansel Adams, Gloria Estefan, Sidney Poitier, Elizabeth Taylor, William Shatner, Neil Young and Eddie van Halen. Even American politics is greatly influenced by immigrants, including former Secretaries of State Madeleine Albright and Henry Kissinger, and entertainment/political crossover Arnold Schwarzenegger.

Why do these extraordinary people come to this country? Perhaps it is because the United States provides hope for those who want to maximize their talent and ability. Even the most powerful symbol of America, the Statue of Liberty, was designed by French artist Frederic-Auguste Bartholdi. It is, therefore, entirely fitting that “The New Colossus” bears the inscription “[I] lift my lamp beside the golden door."

The door is golden because of those who pass through it.

The USCIS announced that as of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, recognizing that some of these petitions may be denied, revoked, or withdrawn.

Last week, the USCIS used approximately 1300 H-1Bs. Assuming the agency stops accepting applications once they hit 58,200 (65,000 less 6,800 reserved for H-1B1 program), the cap will be open for about one more week. Those needing an H-1B visa should file immediately. If the quota is reached, H-1B visas will be unavailable until October of 2010.

The Fraud Detection Unit of the United States Citizenship and Immigration Services (PDF) (USCIS) has initiated thousands of unannounced site visits to employers with H-1B employees. Although the vast majority of site visits go smoothly, this program can be intimidating and create a chilling effect for employers who wish to pursue the H-1B program appropriately. Employers who do not file accurate H-1B applications may have their petitions revoked, and, in cases of severe abuse, further investigation could lead to civil penalties and criminal prosecution.

Conscientious employers generally do not have to fear a site visit, but should understand them and know how to respond. A site visit will occur at the employer’s location or employee’s worksite. The USCIS investigator generally will ask for the signer of the immigration forms, but may ask for another company official. The investigator will seek to review information from the immigration petition regarding the employer’s business and the employee’s job title, duties, work location, and salary.

If you have H-1B employees, prepare for the strong likelihood of a site visit. This means maintaining accurate immigration documentation and becoming knowledgeable aboutthe information they contain. If the H-1B employee is not on site, be sure that there is a person at the location who knows how to respond to an audit.

If you are audited, take careful notes, including the name, title, and contact information of the investigator. If possible, have a witness who also prepares detailed notes of the visit.
If you are unsure how to answer the investigator’s question , simply say that you will follow up after the visit. If any issues arise during the site visit or if you have other concerns, ask to have your immigration lawyer present in person or by telephone.