On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

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Copyright 2010 American Health Lawyers Association, Washington, DC.
Reprint permission granted.
Further reprint requests should be directed to
American Health Lawyers Association
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For more information on Health Lawyers content, visit: http://www.healthlawyers.org.

Hector A. Chichoni, Esquire

Robert S. Groban, Jr., Esquire

Frederick Warren Strasser, Esquire

Epstein Becker & Green PC

New York, NY, and Miami, FL

Introduction

As the current debate over healthcare reform has dominated the headlines, the business of running America’s healthcare institutions has never been more challenging. Healthcare executives are being forced to navigate their institutions through the most difficult economic and regulatory environment in recent history. In this article, we hope to ease that management burden by identifying an area of regulatory exposure—immigration compliance and worksite enforcement—that many healthcare executives may overlook as they struggle to address all of their other operational needs. The additional regulatory exposure from inadequate immigration compliance becomes even more critical when you consider the healthcare workforce’s sheer size. The U.S. Department of Labor (DOL) identifies the healthcare industry as the country’s largest employer, accounting for more than fourteen million jobs annually.1 The DOL also estimates that the healthcare industry will add another three million new jobs from 2006-2016, more than any other industry. Managing a diverse healthcare workforce has never been simple given the unique way in which most hospitals and other healthcare institutions function. Unions, medical practices within hospitals, independent contractors, and third-party contractors can be found in nearly every large healthcare organization, along with a complex matrix of professional, quasi-professional, and non-professional employees that must be recruited, trained, and managed in a manner that comports not only with labor and employment laws, but also with regulatory requirements, licensing, and union agreements. Amid this vortex of legal obligations, it is easy to overlook the increasingly important legal responsibility of Form I-9 compliance. 2 As recent actions by the administrations former President George Bush and President Barack Obama demonstrate, however, the failure to address immigration compliance can have serious civil and criminal consequences to the organization, as well as its employees and senior management.

IRCA and Worksite Enforcement

When Congress passed the Immigration Reform and Control Act of 1986 (IRCA),3 it made it unlawful for employers to hire or retain undocumented workers and established a process, the Form I-9 process, that required employers to verify the identity and employment eligibility of all workers hired on or after November 6, 1986.4 In the twenty years following IRCA’s enactment, the Immigration and Naturalization Service and, later, its successor, Immigration and Customs Enforcement (ICE), targeted egregious violators and deported illegal workers— but levied few significant civil or criminal penalties against employers. When larger organizations were involved, the fines tended to be so minimal that they were not really considered a “serious” compliance issue. The regulatory calculus surrounding worksite enforcement changed radically following the September 11, 2001, terrorist attacks. This precipitated creation of the U.S. Department of Homeland Security (DHS) and led to substantially increased funding for worksite enforcement and border security. 5 Later, the Bush Administration’s support for comprehensive immigration reform created such a hostile public environment against undocumented workers that worksite enforcement, coupled with enhanced border security, were seen as essential prerequisites to any meaningful dialogue on how to fix the country’s broken immigration system. The result was an unprecedented number of public enforcement actions by the Bush Administration that focused primarily on rounding up illegal workers, not penalizing their employers. 6 The Obama Administration has pursued a different approach toward worksite enforcement and expanded its efforts beyond Form I-9 compliance to include H-1B fraud, 7 wage and hour complaints, compliance with the Public Access File requirements of the H-1B program,8 overall immigration fraud, and other areas where legal immigration and employment issues may intersect. As DHS Secretary Janet Napolitano noted, “DHS is focused on smart, tough and effective enforcement of the laws we currently have.” 9

The Vulnerability of Healthcare Employers to Worksite Enforcement Actions

The healthcare industry is not immune from regulatory scrutiny. Given the size and diversity of its workforce and increased union activity, the likelihood that healthcare employers will become targets for worksite enforcement actions seems apparent. This means that healthcare organizations need to identify the critical components of immigration compliance and then develop and incorporate more vigorous policies and procedures into their overall risk management program. Form I-9 completion and retention is the primary legal responsibility for most employers. Healthcare employers should have a uniform written policy for Form I-9 completion using only the form’s latest edition. 10 Such a policy is important to ensure that the organization not only confirms that all new employees are authorized to work, but also avoids discrimination claims that can arise when different Form I-9 completion procedures are used. 11 Under IRCA, an organization must retain its Form I-9 documentation for at least three years or one year following the employee’s termination—whichever is longer—and must make these forms available for inspection if requested by the DOL, DHS, or U.S. Office of the Special Counsel. An employer’s failure to properly complete and retain a Form I-9 provides the same basis for serious civil or criminal liability as if the form was never completed at all.

Under IRCA, an employer cannot use the Form I-9 process to screen candidates for employment. If a healthcare employer does not want to hire foreign nationals who require immigration sponsorship or have limited employment authorization, should it develop an employment application and interview process that will identify these candidates from the outset. 12 It should also implement an immigration employment policy which, among other things, defines the circumstances in which it will sponsor foreign nationals, if any. This policy should also make clear that the organization’s immigration sponsorship does not waive its employment at-will policies, guarantee success, or prohibit the organization from withdrawing its sponsorship for any reason or no reason at all. Such explicit language is particularly important in light of a decision like the Tenth Circuit’s ruling in DerKevorkian v. Lionbridge Technologies, Inc., 13 which held that an employer may have a fiduciary obligation to sponsor a foreign national in the absence of a specific policy. Proper completion of the Form I-9 process does not end an employer’s legal responsibility. Under IRCA, an employer who acquires “actual or constructive knowledge” that an employee does not have employment authorization can be subject to civil or criminal penalties. Such actual or constructive knowledge can arise in a variety of circumstances. For example, an employer would have reason to question the status of an employee who claims to be a permanent resident on his Form I-9—but then asks his manager for immigration sponsorship. Similarly, an organization that has information from a background check that contradicts the status claimed in the Form I-9 would also have constructive knowledge that the employee might be undocumented. Another common situation that might support a finding of constructive knowledge is the employer’s receipt of a “no-match” letter from the Social Security Administration (SSA). Prior to 2007, the SSA sent these letters to notify employers that the names and Social Security numbers (SSN) of certain employees did not match what the SSA had in its system. To ICE, an employer who fails to resolve this discrepancy has constructive knowledge that the subject employee(s) might be undocumented. 14 To the SSA, by contrast, these letters are simply correction requests issued to reduce the suspense fund and properly credit tax payments to the right employee. In this regard, the SSA neither has the authority to penalize employers that supply incorrect SSN information nor those that fail to respond to a no-match letter. While the SSA cannot share its no-match information with DHS under current law, the SSA can provide no-match information to the Internal Revenue Service, which does have the authority to investigate, audit, and ultimately fine the employer. 15 In 2007, the Bush Administration published a “safe harbor” rule that purported to establish a government-sanctioned procedure that employers could follow if they received a no-match letter. Those that followed this rule would receive safe harbor from criminal prosecution and protections against having constructive knowledge that an employee was not authorized to work. The rule was quickly challenged in federal court, which enjoined its implementation. 16 As part of this challenge, the SSA also voluntarily halted the issuance of new no-match letters until the litigation had concluded. On October 7, 2009, DHS rescinded its controversial no-match rule.17 ICE, however, still considers an employer’s receipt of and failure to address a no-match letter to be evidence of the knowing employment of an undocumented worker. With the rescission of the safe harbor rule, healthcare employers should be ready to receive new no-match letters from the SSA. Thus, they should have a policy in place for handling them as part of their overall immigration risk management practices. Of course, any employer who concludes that an employee does not have employment authorization must terminate that employee.

State Immigration Laws: The New Frontier

The failure of comprehensive immigration reform in August 2007 left the impression that the federal government was politically unable to deal with America’s immigration issues. Moreover, this legislative paralysis occurred as the 2008 presidential campaign was heating up and aspiring contenders lined up to demonstrate political toughness by proposing more rigorous measures addressing unlawful immigration. Colorado, the home of 2008 presidential candidate Representative Tom Tancredo (R), passed the first state legislation, which became effective on January 1, 2007. This law required all employers to sign a state affidavit verifying that their employees had work authorization and mandated that all state contractors use E-Verify, the federal government’s employment verification system. 18 Arizona, the home of Senator John McCain, the eventual Republican candidate for president, and former Arizona Governor and now DHS Secretary Janet Napolitano (D), promptly followed Colorado’s lead when it enacted even more stringent legislation in July 2007.19 Effective January 1, 2008, this law not only made it illegal to knowingly hire an undocumented worker, it also required all Arizona employers to utilize E-Verify or risk loss of their business license. 20 Colorado and Arizona initiated a growing trend of state legislation directed at the employment of undocumented workers. The June 2009 report of the National Council of State Legislatures found that forty-four states had passed 144 laws and 115 resolutions affecting foreign nationals and immigration. 21 While some see this as a positive step in controlling unauthorized employment, it has become a nightmare for employers who now must deal with a dizzying patchwork of federal and state laws and often conflicting compliance requirements. For larger healthcare organizations operating in multi-state arenas and varying jurisdictions, it simply ups the ante on ensuring compliance not only with federal immigration laws—but also with whatever laws now are imposed by individual states.

Immigration Risk Management: Best Practices

While the Obama Administration has shifted away from controversial worksite raids, it has made it clear that it intends to hold employers accountable for immigration law compliance. To emphasize this point, ICE issued more than 650 Notices of Inspection in July 2009 to employers in a wide range of industries suspected of Form I-9 and other serious worksite violations. 22 As the pressure for comprehensive immigration reform builds, the key to a more unified approach, especially in this difficult economy, remains strong worksite enforcement that penalizes employers who violate the law and employ undocumented workers. As a result, it is critically important for all employers in the healthcare industry to re-double their efforts and adopt policies that promote legal compliance and facilitate risk management. Healthcare employers looking for “best practices” may find assistance in the DHS’ ICE Mutual Agreement between Government and Employers (IMAGE) program. 23 Originally proposed in 2007, the IMAGE program has not attracted a large number of registrants, in large part because of its burdensome requirements. However, IMAGE does offer a set of “best hiring practices” that can serve as a model for developing policies and procedures that will better prevent potential worksite violations. 24 Not all best practices may be realistic for every employer. Nevertheless, the list provides a useful reference for organizations seeking to enhance their compliance efforts. It thus makes sense to review them in some detail.

E-Verify

ICE recommends that employers use the E-Verify program for all new hires. E-Verify allows registered users to better confirm the identity and employment authorization of new employees by running selected Form I-9 information through the DHS and SSA databases. Under federal law, it is a voluntary program, except for certain vendors who receive solicitations or contract awards under the Federal Acquisition Regulations. 25 Several states, however, require either employers or state contractors to use E-Verify.26 Based on recent pronouncements, it is clear that the Obama Administration is considering support for legislation that mandates that employers use E-Verify as a means of facilitating comprehensive immigration reform. Thus, employers in the healthcare industry should take a careful look at E-Verify so that they will be prepared to implement it in 2010 if necessary.

Form I-9 Training

ICE recommends that employers train all employees involved in the Form I-9 process and ensure that only trained employees participate in this process. The training should include the Form I-9 completion process, detection of fraudulent documents, and any other topics that relate to an employer’s particular circumstances.

ICE also recommends that employers provide annual updates on this training.

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The Labor Department is releasing a final rule that reverses many of changes made under the Bush administration to the H-2A agricultural guest worker program. The rule is scheduled for publication in the Feb. 12 Federal Register. It appears the final rule keeps in place almost all of the changes that were included in the proposed rule issued in September 2009. It makes several key changes, including reversing the attestation-based system created by the 2008 H-2A rule and returning to the adverse-effect wage rate as the basis for determining the required wage rate for H-2A workers. The biggest change from the proposed to the final rule is that forestry workers, such as tree planters, will not be included as H-2A eligible workers although they would have been covered under the proposed rule.  There is no cap for the H-2A program.

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U.S. Citizenship and Immigration Services (USCIS) today posted an

informational video on its Web site that provides an overview of the agency’s Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program. USCIS encourages agencies to view the video to determine if the SAVE program is appropriate for their immigration status verification needs. The SAVE program is an intergovernmental initiative that assists benefit-granting agencies in determining an applicant’s immigration status. The program ensures that only entitled applicants receive federal, state or local public benefits and licenses. Additionally, SAVE offers eligible agencies an efficient, secure and cost-effective method of immigration status verification. Specifically, the program checks the applicant’s information against millions of federal database records. Currently, more than 300 agencies are enrolled in the SAVE program. The video, along with additional information about the SAVE program, is available at www.uscis.gov/SAVE or by submitting a request to SAVE.help@dhs.gov (write “SAVE Informational Video” in the subject line.

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On October 6, 2009, the Department of Homeland Security (DHS) announced that it will issue a final rule, to be published in the Federal Register on October 7, 2009, rescinding the embattled “No-Match” regulation.  As we have previously reported, DHS is of the opinion that the receipt of a “No-Match” letter provided constructive knowledge to an employer that an employee may not be authorized to work. This rule would have created a “safe-harbor” procedure for employers to respond to “No-Match” letters, thus clearing employers from any knowing hire liability for that worker. 

DHS first announced its intention to rescind the “No-Match” rule on August 19, 2009, through the publication of a proposed rule. This action was the culmination of months-long federal litigation concerning whether or not the rule had been lawfully promulgated and whether or not it was constitutional.

In taking this step, effectively abandoning the litigation, DHS stated as follows: “After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Employers beware, upon publication of the rule we fully expect the Social Security Administration to begin issuing new “No-Match” letters and DHS will still consider the receipt of a “No-Match” letter as an indicator of unauthorized employment.  Although there will be no “safe-harbor,” employers should have a plan and procedure in place to address the receipt of a “No-Match” letter. Having a proper plan in place not only helps an employer maintain the integrity of its workforce from an immigration perspective, but also assists an employer in meeting its W-4 reporting requirements with respect to Social Security withholdings.

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The U.S. Citizenship and Immigration Services ("USCIS") announced on August 27, 2009, that the federal Office of Management and Budget has approved an extension of the current Form I-9 to August 31, 2012.  As a result, the USCIS has amended the Form I-9 to reflect an updated revision date of August 7, 2009.  This revision date appears in the lower right hand corner of the form. The USCIS has indicated that employers may use the Form I-9 with a revision date of either February 2, 2009 (the prior revision date) or August 7, 2009 (the current revision date).  The Form I-9 is available at the following web site: www.uscis.gov/i-9. 

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On July 17, 2009, USCIS issued guidance to certain employers who have received an erroneous denial of a Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation.  This guidance was necessitated by a series of USCIS decisions denying H-1B petitions for health care specialty occupations.  Relying on erroneous information contained in DOL publications, the USCIS wrongly concluded that certain health care specialty occupations required at least a master’s degree and then denied the H-1B petitions when the employee beneficiary lacked this degree.

To address this problem, Barbara Velarde, Chief of USCIS Service Center Operations, issued a memorandum, dated May 20, 2009, entitled, “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation.”  This memorandum clarified the standards for H-1B health care specialty occupations so that USCIS examiners would adjudicate these petitions correctly.

The July 17, 2009 guidance permits employers who have received an erroneous H-1B petition denial to seek additional review from the USCIS instead of filing an appeal.  However, the USCIS will not review any case on its own.  USCIS will review an H-1B petition denial only if it has received a written request from the petitioning employer/representative.  These requests for review may be filed electronically and should include “PT/OT Service Motion Request” in the subject line.  USCIS will accept requests through August 14, 2009.

Requests for review of H-1B health care specialty occupation petitions adjudicated at the California Service Center should be sent to: csc-ncsc-followup@dhs.gov.  Requests for review of H-1B health care specialty occupation petitions adjudicated at the Vermont Service Center should be sent to: vsc.ncscfollowup@dhs.gov.  Requests for review need not include a copy of the May 20, 2009 Velarde memorandum, but they must explain how the beneficiary meets the standards set forth in the memorandum.  Furthermore, as with any H-1B petition for a health care worker, the evidence must show that the beneficiary is eligible to practice in his or her particular health care occupation in the state of proposed employment.

Remember, this Friday, August 14, 2009 is the last day that USCIS will accept employer requests for review of erroneous denials to H-1B health care specialty occupation petitions.

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On July 23, 2009, a bipartisan group in the House and Senate reintroduced “The Secure America Through Verification and Enforcement Act” (“SAVE”), which would require employers to use E-Verify to ensure that their workers are authorized to work in the country. This SAVE legislation is largely the same as the bill first introduced in Congress on November 6, 2007.  According to its sponsors, the SAVE is designed to reduce illegal immigration by gradually phasing in the use of E-Verify and increasing border security with additional border patrol agents and new technology and infrastructure.

The SAVE legislation would phase in the mandatory use of E-Verify by employers over a four year period, starting with the federal government, federal contractors, and employers with more than 250 employees. Smaller businesses would be required to begin using the E-Verify system in a graduated manner. While passage now is uncertain, the reintroduction of the SAVE legislation reflects the public’s growing desire that employers hire and maintain only a documented workforce. Considered in this context, and examined against all the states that have passed legislation requiring the use of E-Verify, employers would be well advised now to become familiar with E-Verify so they can readily incorporate it into their operations when it becomes mandatory at the federal level.

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On September 3, Hector A. Chichoni will be teaching the webinar Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does. 

Hector has counseled employers on the proper use of the new I-9, work site enforcement, "no-match" problems, and compliance with state and federal immigration laws

Thursday, September 3, 2009
11:00 a.m. to 12:30 p.m. Eastern
10:00 to 11:30 a.m. Central
9:00 to 10:30 a.m. Mountain
8:00 to 9:30 a.m. Pacific

On July 1, 2009, U.S. Immigration and Customs Enforcement informed hundreds of U.S. businesses that agents would be auditing their I-9s and other hiring records. And just this April, the Obama administration issued new guidelines for ICE agents to change the enforcement focus to employers.

Learn what action you can take NOW to keep ICE from targeting your organization and your first course of action if your company is audited by participating in the all-new HR Hero audio conference, Employers Targeted in Immigration Crackdown: How to Audit Policies Before ICE Does.

Hector A. Chichoni will show you the specific red flags agents are looking for in ICE audits, as well as:

The tell-tale signs ICE may be targeting your organization
Your first recourse if enforcement agents arrive on site
The potential consequences when ICE agents audit your records
Typical fines and other actions immigration enforcement agents are taking against violators
Your legal options if fines are levied against your organization
Your first course of action if you have workers who can’t prove they’re authorized to work in the United States
How ICE's new audit strategy could impact whether E-Verify becomes mandatory for all employers
What employers can expect from future immigration compliance and enforcement initiatives
What every employer needs to know about immigration reform efforts

All receiving this information will be entitled to a 20% discount on the audio conference. To receive the discounted rate, you will need to call HR Hero customer service department at 800-274-6774 and mention code M899.

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On Wednesday, July 8, 2009, the Senate approved several amendments dealing with immigration enforcement and benefits which were not included in the 2010 homeland security appropriations bill (H.R. 2892) passed previously by the House. An amendment introduced by Senator Jeff Sessions (R-Ala) dealing with E-Verify was passed by a voice vote after a motion by Sen. Schumer (D-NY) to table it was rejected 44 to 53. Sen. Sessions’ amendment is extremely important because it could make the voluntary E-Verify program, in its present form, permanent and mandatory for all federal contractors beginning September 8, 2009.

The final federal contractor’s rule, which extends the use of E-Verify to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds, came as a result of Executive Order 12989. The rule was originally scheduled for roll-out last January 15, 2009, but had to be postponed because of a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court for the District of Maryland challenging the legality of the rule.

The version of the bill passed previously by the House on June 24^th would extend the E-Verify program for only two years. Thus, the existing differences between the amended version passed by the Senate and the House bill will have to be reconciled and a final version will need to be agreed upon in conference before changes can take effect.

Secretary Napolitano announced early on July 8^th the department’s intention to rescind the controversial No-Match Rule in favor of the “more modern and effective” E-Verify. In a surprising but decisive response, the Senate also adopted an amendment from Senator David Vitter (R-LA) that would prohibit the U.S. Department of Homeland Security (“DHS”) from using any Fiscal Year 2010 appropriated funds to rescind the No-Match Rule.

Sen. Schumer, who led the effort to table Sen. Session’s amendment, stated that declarations made earlier by DHS Secretary Janet Napolitano that the Administration would support a regulation that requires employers to use E-Verify in order to be awarded federal contracts had rendered the amendment “moot.”

However, the real reason for Sen. Schumer’s opposition is that the present administration wants to enact immigration compliance laws that target employers and, Republicans, now the minority in the Senate, want to enact immigration compliance laws targeting employees. But in a surprising move, supported by a few Democrat senators, all amendments dealing with immigration enforcement offered by Republicans were approved.

More concerning for employers, however, is the apparent administration’s pursuance of a more capable and technologically advanced version of E-Verify. Sen. Schumer has stated repeatedly that E-Verify does not “go far enough” and made clear in several occasions that he favors a hi-tech employment verification system which employs biometric identifiers such as fingerprints, eye scans, and more. Similarly, Secretary Napolitano, who believes E-Verify is a “smart, simple and effective tool” has also made clear, in agreement with Sen. Schumer that “we need to continue to work to improve E-Verify, and we will.”

These declaration not only indicate that the Obama administration and key democratic leaders in Congress share the view that immigration compliance should target employers, but also, as it would appear, through the use of an “improved” or, in other words, a more capable and technologically advanced E-Verify that could include not only biometric identifiers, but also information sharing capabilities linked to other governmental agencies. 

The possibility of an “improved” version of E-Verify does not seem far-fetched when considered in light of present existing Memorandums of Understanding between governmental agencies which already allows for information sharing, past joint raids, and an appropriations bill which provides for $5.4 billion to fund DHS’s employment verification activities.

Further, such “improved” E-Verify, despite the potential tremendous governmental invasion into the workings of private institutions, could give the Obama administration a serious “footing” in dealing with millions of illegal immigrants, which can be “politically” cashed at a later time. 

So far it is unclear what immediate effects the Sessions and Vitter amendments would have if enacted. Both the federal contractor and No-Match Rules are currently suspended due to ongoing litigation.

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Tuesday ICE stated that last Friday Krispy Kreme reached a $40,000 fine settlement with the government for violating U.S. immigration laws by hiring illegal worker. ICE stated that an inspection at a Krispy Kreme factory in Cincinnati  revealed that the company employed many foreign workers who were not authorized for employment. The inspection also showed that the company did not have the required paperwork for all workers at the factory. As part of the settlement, Krispy Kreme has taken measures to revise its immigration compliance program, and has agreed to begin implementing new procedures to prevent future violations of federal immigration laws, ICE said.

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On June 11, 2009, a federal district court issued an injunction that required the University of Pittsburgh to sponsor a Russian biologist for an H-1B extension and continue her employment until her claims of discrimination in her discharge can be resolved. Karakozova v. University of Pittsburgh, No. 09-cv-0458 (W.D. Pa. June 11, 2009). The Karakozova decision represents the latest decision that injects the courts into what previously had been considered the employer’s unlimited discretion in sponsoring an employee for any immigration benefit, including H-1B classification. We reported last year on the Lionbridge decision, in which the 10th Circuit found that the employer violated a fiduciary obligation created by its vague immigration sponsorship policy by failing to sponsor an H-1B employee for permanent residence. These decisions unfortunately appear to represent increased judicial intervention into an employer’s sponsorship decisions and thus place a premium on the organizational policies that define the employer’s obligations in this area.

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On July 2, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) launched a new and bold initiative to audit companies by issuing Notices of Inspection (“NOIs”) to 652 businesses nationwide.

ICE has stated these “audits are not random” and that the businesses were identified based on “leads and information obtained through other investigative means.” These notices are the government’s first step in what could be the beginning of a very lengthy investigation. ICE officers plan to review the I-9 forms and identification documents of all 652 companies. ICE has also stated that those with significant numbers of undocumented workers may be fined. And, if agents believe the businesses “knowingly hired” illegal immigrants or find “a pattern of egregious violations” criminal investigations could be launched. Pat Reilly, ICE’s spokesperson, said that ICE would not “release the names or locations of the businesses that are being audited because of the ongoing investigations” and that the targeted businesses “represent a broad range of industries.”

However, it has been reported that ICE notified 80 companies in California, including three in Los Angeles, which ICE plans to fine because they employ large numbers of people who do not appear to be authorized to work in the U.S. ICE agents had conducted audits on these companies’ records earlier, and in many cases determined that the Social Security numbers listed for employees either did not exist or did not belong to the employees specified.Targeted companies also include businesses in New York, San Antonio, Seattle, and San Diego. ICE has also sent audit notices to 32 companies in Arizona. For a long time the government has been seeking new ways to impose E-Verify on all US employers. I believe the strategy behind these notices is to paint a picture of rampant immigration violations so, come September 2009, Congress will make E-Verify mandatory for every employer. For as much as the government loves E-Verify, it will never be a substitute for immigration reform or stop illegal immigration.

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We are letting our subscribers and friends know they can also follow our immigration news and updates at: http://www.twitter.com/hchichoni

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On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under the federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff’s illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee’s labors, especially if its lax application procedures allowed the employee on the organization’s payroll. The issue of how to handle claims of lost future earnings has resulted in different approaches in the various states. Most states agree that an individual’s undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee’s lack of work authorization or did not have procedures in place to properly evaluate that work authorization. E.g. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed? In the Maliqi decision, the court recognized that the plaintiff’s immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the length of time during which the plaintiff might continue legally earning wages in this country and the prospect of his deportation are factual issues for the jury to determine. (From EBG's Immigration Newsletter)

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The Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§1961 et seq. (RICO), is gaining popularity as a tool by the federal government, employees, competitors and others to combat immigration law violations. The resort to RICO rests in large part on the federal government’s failure to pass comprehensive immigration reform. The attractiveness of RICO as a civil or criminal claim results from its stiff penalty provisions. Successful civil plaintiffs can recover treble civil damages, reasonable counsel fees and injunctive relief if they can prove that the damages they suffered resulted “by reason of” the defendant’s immigration violations. The government finds RICO well-suited for criminal prosecutions in this area because of the ease with which it can prove conspiracy claims and thus connect illegal activities by several defendants. The Askarkhodjaev indictment, for example, contained several RICO counts. During the last month, two class action decisions were issued by the federal courts that emphasized the increased reliance on RICO as a remedy for immigration violations. On May 18, 2009, a federal court in the Eastern District of California granted class certification of RICO claims brought by employees who alleged that the employer, a food-processing company, had depressed their wages by engaging in a pattern of racketeering activity by knowingly hiring undocumented workers at low wages. Brewer v. Salyer, No. 06-1324 (E.D. Calif. May 18, 2009). On May 28, 2009, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision that had denied class certification to the plaintiff employees who sued Mohawk Industries, Inc. claiming that it violated RICO by hiring undocumented workers to drive down their wages. Williams v. Mohawk Industries, Inc., No. 08-13446 (11th Cir. May 28, 2009). The Mohawk litigation has had a long and tortured history in the federal courts. It began in January 2004, and several issues have been on appeal to both the 11th Circuit and the U.S. Supreme Court. As a result of this decision, however, Mohawk now faces the prospect of treble damages if found liable to the thousands of employee plaintiffs that comprise the class. (From EBG's Immigration Alert)

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WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

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On June 22, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) announced that on June 29, 2009, it would resume accepting requests to Premium Process Form I-140 petitions involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who are not seeking a National Interest Waiver, and EB-3 Professionals, Skilled Workers and Other Workers. Premium Processing still is not available for EB-1 Multinational Managers and EB-2 Members of the Professions with Advanced Degrees or Exceptional Ability who seek a National Interest Waiver. Under the rules applicable to premium processing, the USCIS requires an additional filing fee (presently $1,000) and agrees to adjudicate the petition or issue a Request for Additional Evidence within 15 calendar days. Participants in the premium processing service also have access to a dedicated phone line and email address to ascertain the status of the case or ask questions.

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On April 30, 2009, the U.S. Department of Homeland Security, Immigration and Customs Enforcement (“ICE”), issued a second fact sheet with a brief overview of Secretary Napolitano’s approach to worksite enforcement. The fact sheet emphasizes that:

1.  ICE will continue “to arrest and process for removal any illegal workers found in the course of worksite enforcement actions in a manner consistent with immigration law and DHS priorities.”

2. ICE will “use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.”

3. Like “other white collar crimes, ICE worksite enforcement cases can be complex and lengthy, sometimes requiring months or even years of follow-up investigation.”

4. In “many instances, these cases not only involve violations of the Immigration and Nationality Act (INA), but frequently reveal a host of other crimes, such as alien smuggling, document fraud, identity theft, money laundering, and wage and labor violations.”

5. The “leads that spark a worksite investigation come from an array of sources - tips from the public, reports from a company’s current or former employees, even referrals from other law enforcement agencies.” And that,

6. Once “a lead is received, ICE agents will employ a variety of techniques to investigate the allegations, including the use of undercover agents, confidential informants, cooperating defendants, and surveillance.”

The new fact sheet makes a few additional revealing points. As I predicted, first and foremost the government’s approach to worksite enforcement, as applicable to employers, will be from a “white collar” perspective.  But only "administrative" when applicable to undocumented workers.  Moreover, ICE will focus only on issues from which it can haul up criminal charges against the employer to justify its criminal investigative techniques. ICE will not only share information but also conduct joint investigations with other governmental agencies. Very importantly, “leads” will also come from electronic employment verification programs such as E-verify and the like. 

We will continue reporting and keeping you updated on worksite enforcement developments. 

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On April 30, 2009, the U.S. Department of Homeland Security (“DHS”) issue a Fact Sheet in connection with its new worksite enforcement strategy.  The new worksite enforcement strategy shifts its enforcement focus from undocumented workers to employers. We predicted this shift in strategy back in March of 2009 (See Obama Administration's Immigration Approach with Napolitano will Point to Employers). 

The DHS’s new worksite enforcement strategy seeks to:

Pursue a strategy that addresses both employers who knowingly hire illegal workers as well as the workers themselves.

Reflect a renewed department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers.

Focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.

Continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities. Moreover, to use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.

To hold ICE to a high investigative standard which will include:

Looking for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.

Obtaining indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.

DHS’ Fact Sheet also states that "existing humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers, which reflects a change from the previous threshold of 150; it is committed to providing employers with the most up-to-date and effective resources to comply with our nation’s laws; it will continue to work with partners in the public and private sectors to maintain a legal workforce through training and employee verification tools like E-verify, which improve the accuracy of determinations of employment eligibility and combat illegal employment."

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By Hector A. Chichoni, Copyright Society of Human Resource Management ("SHRM"). Printed with Permission.

Due to present hard economic conditions U.S. employers are carrying out reductions in force (RIF) at a higher rate of frequency than at any other time in the last 30 years. RIFs, however, are not uncommon; they also take place during good times through mergers, company restructurings, buyouts, sellouts and more.

Reductions in Force and H-1B Status Holders

The general rule is that once the foreign national worker’s employment is terminated, so is his/her H-1B visa status. As a direct consequence of the principal visa holder’s termination, family member dependents holding derivative H-4 visas will also lose their status. Regardless of the fact that their Form I-94, Arrival/Departure Record may not yet be expired, the H-1B holder and his/her dependents will be out of status as of the last day of the principal visa holder’s employment.

Many foreign employees in H-1B status think there is a “grace period” after the expiration of their status or stay. A large number of foreign workers also believe that if they are part of a RIF, layoff, get fired for cause, terminated[1] or even resign[2] that there is a “grace period” that would allow them to find a new H-1B sponsoring employer. Contrary to their belief, there is no such thing as a grace period. Further, the U.S. Citizenship and Immigration Services (USCIS) has stated that an H-1B nonimmigrant status holder present in the U.S. even during the “severance period,” will not be considered to be maintaining status. To maintain status, the employer and the foreign national employee must maintain a “bona fide” employer-employee relationship.

As a matter of practice, however, if the period between the time in which the foreign national employee fell out of H-1B status and the time in which the new employer filed an H-1B petition is brief,[3] the USCIS may, upon its discretion, overlook the employee’s failure to maintain status and approve an H-1B extension and change of employer.

Given the serious consequences that RIFs have on H-1B nonimmigrant status holders, it is imperative that employers consider these effects prior to initiating a RIF. The employer may wish to consider providing advance notice of the termination to the employee in H-1B status to allow him/her a reasonable period of time to find another sponsor and advise him/her to seek the counsel of an experienced immigration attorney to minimize the impact of the termination.

Moreover, for purposes of termination, RIFs can be so final for H-1B status holders that, only with few rare exceptions, and even when the employer has already paid into the state unemployment system, the foreign national employee cannot file or qualify for unemployment benefits due to the lack of work authorization resulting from the termination.[4]

Once the principal H-1B visa holder is out of status, nothing can prevent the government from detaining, instituting removal proceedings, and even removing them from the United States. Therefore, terminated foreign national employees in H-1B status should seriously consider quickly finding an employer who would be willing to sponsor them for H-1B status, changing to another nonimmigrant status that will allow them to continue staying in the U.S., or leaving the country immediately.

Employers also should consider that when an H-1B holder’s employment is terminated while the company is pursuing a “green card” application before he/she is granted permanent resident status, for all practical purposes, the permanent residence case ends without the employee being able to obtain the green card. Only if the foreign national employee is at the “third stage” of his/her green card application, with an unadjudicated I-485 Adjustment of Status application pending with USCIS for 180 days or more may the employee still be able to secure a green card. The employee may be able to secure the green card by either changing jobs or employers to preserve the green card process, or continue the process with the same employer-sponsored green card case, in spite of the employment termination, if the sponsoring employer does not withdraw the unadjudicated underlying immigrant worker petition and still intends to hire the individual upon adjudication of the I-485.

U.S. employers must walk a very fine line in the context of structuring RIF because it is considered an unfair immigration-related employment practice for a person or entity to discriminate against any individual because of his/her national origin or citizenship.

RIFs also bring a significant increase not only in the number of claims against employers, but in the number of complaints filed with the U.S. Department of Labor (DOL) and the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) by RIFed employees. Complaints filed against employers with DOL and ICE can trigger not only audits but also investigations which can culminate in fines and penalties, and even criminal charges for the egregious violators.

Employers, and thus HR, will typically have very little advance notice of DOL or ICE investigations and audits. Therefore, it becomes more important for employers to properly maintain and keep accurate corporate immigration records. As the saying goes, an ounce of prevention is worth a pound of cure. Nothing could be truer in the area of immigration corporate compliance. Employers should implement clear and effective immigration policies in their employer handbooks. Employers should maintain and retain all pertinent records as well as conduct periodic internal audits along with the implementation of corrective actions to ensure that they are in full compliance with all applicable immigration laws, rules and regulations, which in the end, will defend itself in the event of a government audit or investigation.

In general, ameliorating the impact of a RIF on a foreign national employee may not be mandatory for employers,[5] but it always makes sense from a business perspective to avoid potential claims against them. Claims made by H-1B nonimmigrant status holders, depending on the claim, can also be protected by “whistle-blower” and Fair Labor Standards Act laws.

Given the harsh consequences, RIFs can have a large impact not only on employees holding H-1B status, but also on employers. U.S. employers will be well served by working with HR during the planning phase of the RIF.

Immigration Obligations for Employers of Employees in H-1B Status

Employers of H-1B visa status holders must comply with certain specific obligations acquired through the filing of an H-1B visa petition with the government.[6] DOL laws, rules and regulations make clear that in order for an employer to have carried out a “bona fide” termination, and thus, disclaim potential liability, the employer must notify the USCIS of that termination, provide the foreign national employee in H-1B status with a “reasonable costs of return transportation,” and notify the H-1B status holder employee, in a clear and effective way, about his/her termination. In addition, employers must also comply with other basic obligations directly related to employing foreign workers in H-1B status.

Notify U.S. Government About H-1B Status Holder’s Termination

Under U.S. immigration law employers are required to notify the U.S. government of “any material change” to the terms and conditions of an approved H-1B petition that may affect the eligibility of the beneficiary to that visa category. Termination is considered a material change. Notifying the government is not only a requirement under the law but also a good idea. Notifying the government immediately is also effective for purposes of limiting a claim for unpaid wages for a period covering after the individual is terminated. Thus, in order to prevent or stop the back wage obligation for such H-1B workers, it is necessary to terminate the employee and send a withdrawal notification to the USCIS. The DOL considers the H-1B worker’s wages to be a responsibility of the employer until the date that the USCIS receives a written request to withdraw the relevant H-1B petition.

Similarly, employers must notify DOL about the termination (withdraw) of the Labor Condition Application (LCA) filed with the H-1B visa petition.

A typical notification sent by the employer can be a letter on company letterhead, or the attorney’s letterhead if represented by an attorney, clearly referencing the petition number, employer’s contact information, and beneficiary’s name and date of birth via U.S. certified mail. Employers can include with the letter a clear color copy of the individual’s Form I-94; Form I-797, Approval Notice; and, even when not required, a copy of the H-1B visa.

Although there is no requirement per se to inform the U.S. consulate that issued the H-1B visa about the individual’s termination, some immigration practitioners consider it a good idea to send a copy of the above packet, either via U.S. mail, or as a PDF attachment via e-mail, directed to the U.S. consulate’s nonimmigrant visa unit or the fraud prevention unit. This practice could assist employers in disclaiming any potential liability for any future wrongdoing involving the use of the visa.

Provide H-1B Status Holder Employee with Reasonable Costs of Return Transportation

Employers of H-1B status holders have an obligation under the immigration statute to provide the foreign national employee with “reasonable costs of return transportation” if the “involuntary” termination of the H-1B status holder was effective before the expiration date, as shown on Form I-94, of the period of authorized stay. This obligation falls upon the present employer of the foreign national employee or the last employer before the termination. Paying the cost of transportation neither extends to the foreign national employee’s dependents living with him/her in H-4 status, nor to paying for the transportation of his/her household belongings.

A word of caution, the employer’s mere offer to pay the foreign national employee’s “cost of transportation” may not be enough. Providing the actual airfare, one-way nonrefundable ticket to the home country or last place of residence, should meet the requirement. It is a good practice to obtain either a signed acknowledgment of receipt from the beneficiary that he/she indeed received the return cost of transportation, or that the beneficiary, upon being presented with return costs of transportation, declined the employer’s offer. The employer cannot force the individual to exit the United States and has no obligation to report the individual to ICE if the individual, of his/her own volition, decides to stay beyond the date of termination. Thus, it is imperative that the employer effectively document and create an evidentiary trail that it has complied with its obligation of paying the return costs of transportation. Again, employers should develop and implement corporate immigration policies that define their obligations. These policies should be part of their employee handbook.

Continue to Pay H-1B Status Holder Employees Required Wages Until Termination

An employer’s obligation to continue paying the required wage to the employee in H-1B status ends upon effective and clear or “bona fide” termination of the employer-employee relationship. Therefore, it follows that an employer must not only provide the H-1B status holder employee with clear and effective notice of his/her termination, but also must carefully document the termination with clear and accurate records to protect itself.

The payment of the required wage must be in accordance to what the employer promised when it filed the LCA for certification with the DOL.[7] The LCA requires by attestation that the employer will pay the H-1B workers the higher of either the prevailing or actual wage[8] during their employment.[9] The LCA also prohibits “benching”[10] the employee if the employer does not have a sufficient amount of work.

DOL has authority to enforce the H-1B wage obligations and may impose fines and penalties on employers that fail to comply with this requirement.

Employers’ Employment Verification Compliance Obligation

The employer’s termination of the employer-employee relationship through a RIF does not end its obligation to continue maintaining and retaining its Form I-9, employment eligibility verification records. The employer must retain Form I-9 for each employee for either three years from the date employment begins, or one year after the date employment is terminated, whichever is later.

Employers must consider that a RIF often breeds not only lawsuits from disgruntled former employees, which can include former foreign national employees, but also potential complaints to various governmental organizations such as DOL and ICE, which may lead to an audit or investigation of the employer’s records. It is therefore, a good practice to purge all I-9 forms that are not required to be kept under the law.

The DOL has some discretion, once it has conducted an investigation, as to the types and levels of penalties that can be assessed. There may be less harsh consequences for past violations, if there is evidence of current compliance. Employers must show good faith to avoid harsher penalties.

Employers are also responsible for, and must ensure, adequate training of human resources professionals to ensure compliance with corporate policy and immigration law. A thoughtful I-9 compliance policy and careful management of I-9 records will put employers in a better position should DOL or ICE decide to audit or investigate them.[11]

Employer’s Public Access File Compliance Obligation

Employers of H-1B employees are required by DOL regulations to make a certified (filed) LCA, along with all necessary supporting documentation, available for public examination at the employer’s principal place of business in the United States, or at the place of employment within one working day after the date in which the LCA is filed with the DOL.

Employers must retain this documentation (in tandem also known as the “Public Access File” (PAF) or “Public Inspection File” (PIF) for a period of one year beyond the last date on which any H-1B nonimmigrant is employed under the LCA or, if no H-1B nonimmigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn. Ensuring proper document retention is particularly important in an economic downturn. With limited exceptions, government investigations of immigration compliance are often initiated by the DOL or by ICE as a result of a complaint made by a former employee.[12]

Compliance Issues Relating to Receipt of Stimulus Plan Funds

The law states that businesses receiving money under the stimulus package’s Troubled Assets Relief Program (TARP) will be subject to the rules that currently govern H-1B-“dependent” U.S. employers.

DOL requires that H-1B dependent U.S. employers take additional steps when hiring new H-1B foreign workers. These steps require U.S. employers to attest that, in addition to the normal attestation requirements found in the LCA, they have, among other requirements:

(1) Taken good faith steps to recruit for the position in the U.S. using industrywide standard practices.

(2) Offered, at minimum, the prevailing wage during recruitment efforts.

(3) Offered the job to any U.S. worker who applies that is equally or better qualified than the H-1B worker.

(4) Not displaced U.S. workers employed within a period beginning 90 days before and ending 90 days after the date of the filing of the H-1B petition.

Since this is a new area of compliance, it would be advisable for U.S. employers receiving TARP funds to keep constantly informed and updated.

RIFs, Government Audits and Investigations

Government agencies usually initiate audits or investigations in connection with an immigration compliance issue when there is a complaint made by a disgruntled employee or a tip. A significant number of audits and investigations are triggered by complaints made by RIFed U.S. citizens, green card holders and even nonimmigrant visa holders. Agencies can also initiate investigations on their own and with less than probable cause.

For purposes of LCA issues, the appropriate agency will be the DOL, Wage and Hour Division. As far as I-9 issues, ICE will be the agency responsible for conducting audits and investigations. Both agencies are responsible for conducting the initial review of the merits of respective complaint in order to determine if an investigation is warranted.

If the agency decides to proceed with the audit or investigation, the U.S. employer generally will be notified by letter or phone call by an investigator or officer that he/she would like to come to the employer’s offices to review the immigration-related documentation that the employer is required to maintain. Often, investigators do allow employers to send the documents the agency wishes to review to the agency’s office. In addition to reviewing the I-9 forms or the LCA PAFs, the investigator might also ask to review payroll records to ensure, among other things, an accurate account of employees, their names, Social Security numbers and that the required wage is being paid to foreign national employees. As stated, investigators usually will give employers very little time to either produce or permit inspection of the records.

A new technique ICE has been using, and will continue to use in the upcoming years, to audit and investigate U.S. employers is the so called “inspection.” Employers that have entered into Memorandums of Understanding (MOU) with a government agency to participate in some sort of electronic immigration compliance program (e.g., E-Verify) need to be aware that these MOUs grant permission for the agency to come unannounced to the premises and conduct an inspection. The work inspection is not defined, and therefore has no limit. It can include employment eligibility verification through the use of the agency’s own electronic systems and devices (without even touching the employer’s I-9s), criminal and customs searches, and much more. The inspection team can even include members of other agencies also under the U.S. Department of Homeland Security’s umbrella such as the Transportation Security Administration.

Since Sept. 11, 2001, the government has exponentially increased security measures and electronic initiatives to address national security concerns. The increase in the government’s immigration policies and electronic systems has manifested itself in a resurgence of government audits, inspections, raids and criminal investigations of U.S. employers. Government search warrants, worksite raids and audits have become standard investigative tools to assist in the enforcement of immigration laws. These systems make it easier for the government to detect not only wrongdoing, but also simple failure to comply with the law.

Under Secretary Janet Napolitano, possibly in association with other governmental agencies (e.g., the Internal Revenue Service, DOL, and the Social Security Administration), the number of government audits and inspections will continue, and probably, increase. Technology based programs such as E-Verify could become mandatory for all U.S. employers.

In conclusion, it will be important to caution that while it is often appropriate to take remedial actions such as filing H-1B petition amendments and new LCA, paying back wages, and organizing documentation, including I-9 forms to fix future problems, employers should never attempt to cover up the problems. Therefore, it will be important for employers to be in compliance at all times, especially, when going through a RIF.

Hector A. Chichoni is an attorney at Epstein Becker & Green PC in Miami. Chichoni (hchichoni@ebglaw.com) is South Region chairperson of the firm’s Immigration Law Group.

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As stated on April 23, 2009 by Senators Richard Durbin (D-IL) and Charles Grassley (R-IA), they will soon introduce a new immigration bill that, if signed into law, will have far reaching consequences for employers of H-1B and L-1 workers.

The H-1B and L-1 Visa Reform Act is expected not only to create new obligations and requirements for U.S. employers, but also to give the government additional authority to audit and investigate them. The bill will require employers to make a good faith effort to recruit and prohibit the displacement of U.S. workers before hiring H-1B and L-1 workers. Moreover, the bill will require USDOL to conduct annual audits of companies who employ large numbers of H-1B workers. The bill will also institute a number of reforms to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.

The content of the bill has not yet been released. It is possible that the bill may also include some of the relief promised by the Obama administration, as Senator Grassley has been cooperating with President Obama in this area.  However, if this bill is signed into law with the stated requirements and obligations without providing any relief, it could have serious negative consequences not only for employers but also for our economy.  H-1B and L-1 visa holders provide a great deal of the technical knowledge and skills our country requires to compete in the global arena.

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One of my articles,  Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers, was recently published by ILW.  I am reproducing it here in its entirety for your perusal: 

"President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.

The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.

Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."

Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.

In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order."

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President Obama made it clear that his immigration plan was to “bring people out of the shadows, improve our immigration system, create secure borders, remove incentives to enter illegally and honor our immigrant troops.” However, the Obama administration has not provided any details as to how it is going to accomplish this plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama has sent out “immigration signals” and employers should be prepared to feel the effects.

The most important of these immigration signals was Secretary Napolitano’s appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration’s plan. This is not only part of a well calculated move, but the foundational step necessary to set President Obama’s immigration plan in motion.

Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with strong enforcement views. She is one of the most experienced state executives in the nation with immigration and one of the very few qualified to handle a massive immigration reform loaded with compliance and enforcement requirements.

She has repeatedly called for a “technology-driven border control” and the penalizing of employers hiring undocumented workers.

Secretary Napolitano indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on “unscrupulous employers” rather than on undocumented workers. She also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers “of unlawful workers are prosecuted for their violations.” Moreover, Napolitano pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to “establish sound compliance programs that prevent unlawful hiring.” She also aims to continue boosting manpower on the borders and focusing on technology, such as ground sensors. At the same time, it is her full intention to enforce these methods in a fair manner across borders, ensuring that the law is applied.

This represents a 180 degree shift from the Bush administration’s approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecuting employers under the theory that actual convictions were hard to get.

In short, immigration reform, whether in piece-meal or in one whole swap, will be enacted in 2009 or 2010. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the “hyper-criminalized” actions conducted under the Bush administration with their inefficiencies and social negative effects.

Under Secretary Napolitano, DHS, the Immigration and Customs Enforcement, and possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called “inspections” will escalate. Technology based programs such as E-verify will rule and could become mandatory for every employer in the U.S. Wise employers will be served well by putting their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
 

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Recently the American Immigration Lawyers Association (“AILA”), organization of which I am a member, prepared a list of Frequently Asked Questions (“FAQ”) about the H-1B provisions of the American Recovery and Reinvestment Act of 2009 (ARRA or the "Stimulus Bill") and its impact on H-1B employers. For the benefit of our blog’s readership I am including portions of this list, however, some of the FAQs do not have clear answers:

What Provision of the American Recovery and Reinvestment Act of 2009 Affects H-1B Employers?

Section 1611 of the ARRA, called the Employ American Workers Act, was added to the stimulus bill by Senators Sanders (I-Vt.) and Grassley (R-Iowa) to limit certain banks and other financial institutions from hiring H-1B workers unless they had offered positions to equally- or better-qualified US workers, and to prevent banks from hiring H-1B workers in occupations in which they had laid off US workers.

What Companies Are Covered by the EAWA?

The EAWA places new restrictions on H-1B petitions filed by any company that receives funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343, also known as the "TARP Bill") or that receives funding under Section 13 of the Federal Reserve Act (12 U.S.C. § 342 et seq., authorizing the Federal Reserve’s “Discount Window” for short-term, secured loans to financial institutions and other companies). Note that companies receiving funds under the AARA (the “stimulus bill”) itself, such as engineering companies that contract with states to build the transportation infrastructure funded by the bill, are NOT subject to any restrictions - only banks and other companies receiving TARP money, or credit directly from the Federal Reserve System, are covered.

How Do I Find Out Whether An Employer Has Received Funds Triggering Application of EAWA?

Recipients of funding under the TARP program are disclosed publicly by the US Treasury, and weekly reports are available on the Emergency Economic Stabilization Act page of the Treasury Department website. Recipients of funding through the Federal Reserve’s Discount Window program are not disclosed to the public, as explained at in the FAQs on the Federal Reserve Discount Window webpage. See question #9. Generally, any state or federally regulated financial institution is eligible for such funding, though under the Federal Reserve’s emergency authority, non-bank companies such as AIG have been allowed to access short term, low-interest loans through the Discount Window.

What Restrictions Are Placed On Covered Employers?

The EAWA provides that it will be unlawful for any recipient of funding to “hire” an H-1B nonimmigrant unless the recipient has complied with the extra Labor Condition Application attestations previously imposed on “H-1B dependent employers.” These extra attestations are:

that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position.

that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Are “Exempt” H-1B Employees Covered By The New Restrictions?

All H-1B workers “hired” by a covered employer between February 17, 2009 and February 16, 2011 are covered by the EAWA. Even though the H-1B dependent employer rules provide an exemption from the extra attestations for H-1B workers who possess master’s degrees or who receive wages of at least $60,000, the EAWA makes this exemption unavailable to TARP recipients.

Are H-1B Extensions for Existing H-1B Employees of Covered Employers Subject to the New Restrictions?

The term “hire” is defined in the statute as permitting “a new employee to commence a period of employment.” Therefore, the new restrictions do not appear to apply to H-1B extension petitions filed on behalf of current H-1B employees of covered employers. However, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

Are H-1B Changes of Status for Existing Employees in Other Nonimmigrant Statuses (F-1, TN, L-1B) Subject to the New Restrictions?

As indicated above, the term “hire” is defined in the statute as permitting “a new employee to commence a period of employment.” Therefore, it would appear that the new restrictions do not apply to H-1B petitions filed on behalf of current employees of covered employers, if those employees are currently employed in another nonimmigrant status such as F-1, TN or L-1B. Furthermore, it should be noted that the I-9 Form is completed at the time the employee is hired, not at the time of any change in status. However as previously noted, neither USCIS nor DOL have issued implementation guidance or regulations yet, so it is not completely certain that they will take the same view.

Are H-1B Amendments or Extensions of Stay for New Hires Already in H-1B Status for Another Employer Subject to the New Restrictions?

This issue will need to be resolved by USCIS and DOL in implementing regulations or procedures; however, new employees seeking to transfer their H-1B from another employer to a covered employer will likely be considered to be a “new employee.”

When Does the Law Go into Effect, and How Long Is It Effective?

The Employ American Workers Act became effective upon the stimulus bill's enactment, February 17, 2009. It is important to note that the law will remain effective for only two years after its enactment. Thus, it will sunset on February 16, 2011.

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A provision in the $787 billion stimulus bill that would have required employers receiving federal stimulus money to use E-verify was dropped from the bill. This move is a victory for employers in the construction business receiving assistance from the stimulus bill.

A representative from the American Civil Liberties Union (“ACLU”) recently stated that E-Verify is "flawed" as an employment authorization verification system and that forcing employers to use it would have held Americans "hostage to bad government data and even worse government database systems."

Also eliminated from the final conference report is a provision that extended the E-Verify program beyond March 6, 2009, when it is set to expire. It is expected, however, that E-verify or a similar program could be established permanently by the Comprehensive Immigration Reform (CIR) sometime before the end of this year.
 

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Effective January 12, 2009, all foreign nationals traveling to the US under the Visa Waiver Program ("VWP") must comply with Electronic System for Travel Authorization ("ESTA") requirements. ESTA is a web-based system that determines the preliminary eligibility of individuals to enter the United States. Since its launch in August 2008, more than 1.2 million ESTA applications have been processed, resulting in an approval rating of greater than 99.6 percent. Most applications are processed in seconds, according to the U.S. Department of Homeland Security ("DHS").

Foreign nationals citizens of VWP countries, who are seeking entry to the U.S. with a visa instead of under the VWP, do not need to use ESTA. While an ESTA approval is required before a VWP traveler can board an international carrier bound for the United States, U.S. Customs and Border Patrol ("CBP") may still deny entry to a VWP traveler.

The citizens of countries currently eligible to travel to the United States under the VWP are: Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

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On January 30, 2009, U.S. Citizenship and Immigration Services ("USCIS")announced that the effective date of the new Form I-9 (Employment Verification Form) has been delayed for 60 days, until April 3, 2009.

The new Form I-9 was scheduled to take effect on February 2, 2009. The comment period on the new form now runs until March 4, 2009. The temporary extension is designed to provide the DHS with an opportunity to further consider the interim final rule: “Documents Acceptable for Employment Verification” which was published by the USCIS on December 17, 2008. The USCIS has also announced that the old Form I-9 should continue to be used until at least March 4, 2009.

All employers and HR personnel should take note.  Once in effect, old versions of the form cannot be used.

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MIAMI (February 4, 2009) – Nationally known immigration attorney, Hector A. Chichoni, a member of Epstein Becker & Green’s (EBG) Miami office, has been appointed National Immigration Counsel by ALTA, the Latin American and Caribbean Air Transport Association.

In his new national role, Chichoni will advise ALTA on U.S. immigration and nationality law issues and legal trends affecting the aviation industry.

Chichoni’s practice focuses on U.S. and global immigration law, and strategic human resource transfers with a wide range of clients that include multinational corporations, health care organizations and universities.

“Mr. Chichoni is a distinguished expert in the area of U.S. and global immigration law with a unique perspective on U.S. aviation-related immigration issues, said ALTA’s Executive Director Alex de Gunten. “Our organization and members will benefit greatly from his extensive knowledge and experience in this fast changing and demanding immigration environment.”

“With his unique combination of extensive legal knowledge and counseling experience, Hector Chichoni is a natural choice for this prestigious aviation industry position,” said Michael W. Casey III, Managing Shareholder of EBG’s Miami office.

“I am pleased to accept this appointment and I am of course delighted to work with ALTA” said Hector Chichoni. “ALTA is a great organization and well known for the caliber of its members. Both EBG and ALTA share emphasis on quality as an essential element of each organization’s culture. I look forward to not only serving and assisting ALTA and its members as National Immigration Counsel, but also to achieving great things together.”

About ALTA:

ALTA, www.alta.aero, was founded in 1980 as a non-profit airline association. Its member carriers have total revenue of more than $19 billion, operate more than 800 aircraft and employ more than 70,000 workers in Antigua, Argentina, Bolivia, Brazil, Cayman Islands, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Jamaica, Mexico, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela, and in other nations the airlines serve.

Member Airlines: Aerogal, Aerolíneas Argentinas, Aeroméxico, Aeroméxico Connect, Aeropostal, AeroRepública, AeroSur, Aires, Air Jamaica, Aserca Airlines, Avianca, Bahamas Air, Caribbean Airlines, Cayman Airways, Cielos Airlines, Click, Copa Airlines, Cubana, GOL, Icaro, LAB, LAN Airlines, LAN Ecuador, LAN Peru, Liat, Mexicana, Nature Air, Pluna, Santa Barbara Airlines, Sky Airline, TACA, TACA Peru, TAM, TAM Mercosur, Tame, VARIG LOG, Volaris, VRG Linhas Aereas. Associate Airlines: Air Canada, Continental Airlines, Iberia and UPS. Affiliate Members: Accenture, Airbus, Amadeus, AON, Arinc, AvGroup, Boeing, CFM, Chevron, Embraer, Lufthansa Systems, Marsh Aviation, NCR, OAG, Petrobras Aviation, Routes, Sabre Airline Solutions, SH&E, Shell Aviation, SITA, Spencer Stuart, Travelport, UATP, Unisys, Wencor, White & Case, Willis.
 

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DHS' Krome Detention Center in Miami launched a new program aimed to speed up immigration court proceedings immigrants facing deportation.

According to the South Florida Sun-Sentinel, Krome Detention Center has cut an average of 13 days off the time it takes to process deportation cases. An independent study of the center reveals that the Krome Detention Center presently processes cases in 27 days versus the 40 day processing averages of most immigrant detention centers nation wide.

This cut is significant, not only because detention time is reduced, but also because it saves millions of dollars. The cut has also an added benefit, it allows the court system to run more efficiently.

The new program includes orientation, which is intends to give detainees a better overview of their right and the legal process. Orientation includes providing information on available pro-bono lawyers and general information which will allow better pro-se representation. Orientation also provides detainees with information on whether they have legal standing to be in the US. The aim is to make it clear that it is best to have short court proceedings, which will save them legal fees.

“This program is extraordinarily important because there are people in the detained setting that are giving up their rights’ to stay in the country,” said Linda Osberg-Braun, president of the American Immigration Lawyers Association’s South Florida chapter.

Although this program is not new (it was originally launched in 2003 and currently available in 13 sites), the program now at the Krome Detention Center is considered by some, exceptionally successful.
 

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 The president of a Massachusetts military goods manufacturing company will pay a fine and serve up to 18 months in prison to settle charges stemming from a raid by federal immigration officials in March of 2007.  The company will also have to pay a fine of $1.5 million.  Under the terms of a plea agreement entered Nov. 3. MBI and its president and principal shareholder, pleaded guilty to several charges in U.S. District Court for the District of Massachusetts alleging that they hired illegal aliens, helped to shield them from detection, failed to pay them full overtime, and fraudulently misled the government. The company specialized in the manufacture of handbags and leather goods. Between 2001 and 2006, MBI won a number of Department of Defense contracts worth approximately $230 million. As a result of these defense contracts, the federal government said, MBI increased its workforce from approximately 85 employees in 2001 to approximately 650 people in 2006.

The company president and two managers were arrested and charged with various violations of federal criminal law and the Immigration and Nationality Act in a criminal information March 6, the day officials from ICE raided the worksite and detained at least 361 alleged illegal aliens. The three were subsequently indicted in August 2007 by a grand jury on charges of conspiracy to harbor and conspiracy to hire illegal aliens. In a plea agreement entered on Nov. 3, MBI pleaded guilty to 18 counts of knowingly hiring illegal aliens, helping to harbor and shield illegal aliens from detection from authorities from 2004 to 2007; fraudulently misrepresenting Social Security numbers and committing mail fraud when it submitted Social Security numbers to the IRS and Social Security Administration knowing that many of the numbers had to be false given that many of the company's employees were illegal aliens; and failing to pay many employees overtime from 2005 to 2007. MBI's president pleaded guilty to helping harbor and conceal illegal aliens by allowing the company to submit false Social Security numbers for employees to the government as if they were real.

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 The Department of Homeland Security ("DHS") announced that all nonimmigrant aliens traveling to the United States under the Visa Waiver Program ("VWP") will have to obtain travel authorization from the Department’s Electronic System for Travel Authorization ("ESTA"). To comply with ESTA, VWP travelers must provide electronically to U.S. Customs and Border Protection ("CBP") the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA website and receive authorization to travel before embarking on travel to the United States.

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On November 7, 2008, the U.S. Department of Education launched U.S.A. Learns, a free Web site to help immigrants learn English. The Web site, which is located at www.USALearns.org, provides approximately 11 million adults who have low levels of English proficiency with easily accessible and free English language training. The launching of the site completes one of the goals in President Bush's Aug. 10, 2007, announcement of 26 immigration reforms that his Administration would pursue within existing law -- including the assimilation of new citizens and helping immigrants learn English to expand their opportunities in America. U.S.A. Learns offers the following features: An easily accessible Internet learning tool; simple directions; free instructional materials developed to teach basic English skills and help adults improve their English proficiency; and learning modules that can be used outside a traditional classroom.

Upon entering the site, users can choose directions in either English or Spanish and then pick which English level they need -- beginner or intermediate. Once in the modules, the instruction is almost exclusively in English. In the beginner course, 20 units are offered in such areas as numbers, the calendar, places to go, families, schools, clothes, money and shopping. For intermediate students, more challenging exercises can help them further their existing English reading and writing skills. The 2003 National Assessment of Adult Literacy documented that as many as 11 million adults in the U.S. are not literate in English. Currently, local and state providers have the ability to serve only approximately one million of those learners annually, prompting the need for a Web site of this kind to offer to adults seeking easily accessible English literacy training.

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On November 7, 2008, Associated Press reported “Federal officials say they have deported more than 12,000 illegal immigrants from Florida, Puerto Rico and the U.S. Virgin Islands in the 12 months ending in October.” The number of deported foreign nationals provided by U.S. Immigration Customs Enforcement (“ICE”) is actually 12,753. This number includes immigration violators, fugitives, and foreign nationals convicted of deportable crimes (i.e. felonies and certain misdemeanors). This number also represents, roughly, a 25% increase in the number of deportations from the prior fiscal year (9,105). DHS’ fiscal year begins every October 1st.

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On October 22, 2008, DHS announced issuance of the final Secure Flight Final Rule (the “SF Rule”). This followed a Notice of Proposed Rulemaking issued in August 2007. In its final form, the SF Rule shifts responsibilities for review of pre-departure watch lists from individual aircraft operators to the Transportation Security Administration (“TSA”) or CBP. This implements a key recommendation of the 9/11 Commission by giving the government responsibility for monitoring watch lists.

Under the SF Rule, airlines now are required to collect the passenger’s full name, date of birth and gender when making an airline reservation. The TSA will receive this information and determine if it matches any “No Fly” or “Selectee” list maintained by government law enforcement agencies. The result will be returned to the airline, after which the passenger data in most cases will be destroyed to address civil liberties concerns.

Domestic and international carriers, and industry associations, have expressed many concerns in connection with the implementation of the SF rule. Among those, the fact the industry in general will need at least six months to upgrade its reservation and departure systems in order to come into compliance with the rule. Implementing the rule will also be extremely expensive, particularly, for an industry that has sustained large economic losses and operates almost at break-even point. Other concerns include travel disruption since the rule requires bulk buyers to provide the identities and personal information of each passenger 72 hours in advance of a flight; the disruption of foreign carriers operations by requiring passengers to be screened even if a flight does not intend to land in the United States; and the creation a data collection system likely to be at odds with other DHS data collection programs. The SF Rule will be implemented in two phases. First TSA will assume watch list responsibility for domestic flights in early 2009. Later that year, CBP will be given similar responsibility for international flights.

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U.S. Citizenship and Immigration Services ("USCIS") has increased the maximum period of time a Trade-NAFTA ("TN") professional worker from Canada or Mexico may remain in the United States before seeking readmission or obtaining an extension of stay. According to USCIS' official release this final rule changes "the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers." The release also points out that eligible TN nonimmigrants "may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year." USCIS's Q&A, issued simultaneously with the official release, also states "[T]his final rule will extend that period to a maximum of three years to be consistent with other nonimmigrant worker categories, such as the H-1B." The new regulation's summary, although not a part of the regulation, states:

 "This final rule increases the maximum allowable period of admission for TN nonimmigrants from one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term ``TC'' (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with ``TN.''

The new regulation states in appropriate part:

"(e) Procedures for admission. A citizen of Canada or Mexico who qualifies for admission under this section shall be provided confirming documentation and shall be admitted under the classification symbol TN for a period not to exceed three years. The conforming document provided shall bear the legend ``multiple entry.'' The fee prescribed under 8 CFR 103.7(b)(1) shall be remitted by Canadian Citizens upon admission to the United States pursuant to the terms and conditions of the NAFTA. Upon remittance of the prescribed fee, the TN applicant for admission shall be provided a DHS-issued receipt on the appropriate form...

(g) Readmission. (1) With a Form I-94. An alien may be readmitted to the United States in TN classification for the remainder of the authorized period of TN admission on Form I-94, without presentation of the letter or supporting documentation described in paragraph (d)(3) of this section, and without the prescribed fee set forth in 8 CFR 103.7(b)(1), provided that the original intended professional activities and employer(s) have not changed, and the Form I-94 has not expired.

(2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant's original Form I-94 with the legend ``multiple entry'' and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:

(i) For Canadian citizens, alternate evidence may include, but is not limited to, a fee receipt for admission as a TN or a previously issued admission stamp as TN in a passport, and a confirming letter from the United States employer(s).

(ii) For Mexican citizens seeking readmission as TN nonimmigrants, alternate evidence shall consist of presentation of a valid unexpired TN visa and evidence of a previous admission.

(h) Extension of stay. (1) Filing. A United States employer of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status, or a United States entity (in the case of a citizen of Canada or Mexico who is currently maintaining valid TN nonimmigrant status and is employed by a foreign employer), may request an extension of stay, subject to the following conditions:

(i) An extension of stay must be requested by filing the appropriate form with the fee provided at 8 CFR 103.7(b)(1), in accordance with the form instructions with USCIS.

(ii) The beneficiary must be physically present in the United States at the time of the filing of the appropriate form requesting an extension of stay as a TN nonimmigrant. If the alien is required to leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.

(iii) An extension of stay in TN status may be approved by USCIS for a maximum period of three years.

(iv) There is no specific limit on the total period of time an alien may be in TN status provided the alien continues to be engaged in TN business activities for a U.S. employer or entity at a professional level, and otherwise continues to properly maintain TN nonimmigrant status.

(2) Readmission at the border. Nothing in paragraph (h)(1) of this section shall preclude a citizen of Canada or Mexico who has previously been admitted to the United States in TN status, and who has not violated such status while in the United States, from applying at a DHS-designated port-of-entry, prior to the expiration date of the previous period of admission, for a new three-year period of admission. The application for a new period of admission must be supported by a new letter from the United States employer or the foreign employer, in the case of a citizen of Canada who is providing prearranged services to a United States entity, which meets the requirements of paragraph (d) of this section, together with the appropriate filing fee as noted in 8 CFR 103.7(b)(1). Citizens of Mexico must present a valid passport and a valid, unexpired TN nonimmigrant visa when applying for readmission, as outlined in paragraph (d)(1) of this section."

Although there is no doubt employers welcome USCIS' move, with 74,000 TN visas (counting initial filings and extensions) out there, it appears to me that the motivation behind this move is not to assist the employers but rather to get some relief from the administrative burden of having to process these visas. 

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On October 10, 2008, the U.S. Citizenship and Immigration Services ("USCIS") in a special dedication ceremony, which included hosting its first naturalization ceremony for 29 children, officially opened its newest field office in Orlando.  This field office, 37,000 square-foot facility, will provide full-service immigration processing, from fingerprints to naturalization, for people of Central Florida. The official release states that "the new office is based on a national model for new USCIS office locations throughout the country, and includes resources necessary to accommodate more than 450 customers daily." The Orlando Field office is part of USCIS’ Southeast Region, responsible for district and field office operations including the management of more than 900 government and contract employees in the southeast region of the U.S. The region covers a geographic area from North Carolina south to Florida, west to Louisiana and also to the Virgin Islands and Puerto Rico.

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CHEP, a pallet and container pooling services company in Orlando, recently announced its “formal partnership” with U.S. Immigration and Customs Enforcement (I"CE") to follow hiring practices, train its staff, and use ICE’s Mutual Agreement between Government and Employers (“IMAGE”) to verify that its employees are lawfully authorized to work. The company signed for IMAGE last month at ICE's headquarters in Washington DC, committing the company to meeting the workforce compliance standards set by the program.

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U.S. Customs and Border Protection ("CBP") announced on Thursday, October 2, 2008 that Global Entry kiosks are now available at four additional international U.S. airports. CBP is the unified border agency within the Department of Homeland Security charged with the management, control and protection of U.S. borders at and between the official ports of entry. CBP is also charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.
CBP's release states as follows:

"Approved members returning to the U.S. use the Global Entry kiosk as an alternative to the regular passport control line. At the kiosk, Global Entry members will activate the system by inserting their passport or U.S. permanent resident card into a document reader. The kiosk will direct travelers to provide digital fingerprints and will compare that biometric data with the fingerprints on file.Global Entry travelers will be prompted to answer declaration related questions on the kiosk’s touch-screen. A transaction receipt will be issued upon completion that must be presented to CBP officers prior to leaving the inspection area. The program’s expansion to Los Angeles International, Hartsfield-Jackson Atlanta International, Chicago O’Hare International and Miami International airports was announced on August 12. The enrollment centers at these sites are expected to open later this month. Global Entry applicants will be able to complete their interview and biometric data collection at these sites. Global Entry kiosks also will be installed at additional terminals at John F. Kennedy International Airport October 17. The Global Entry pilot program began June 6 at JFK International, George Bush Intercontinental and Washington Dulles International airports. To date, approximately 3,500 members have already enrolled and over 1,100 Global Entry members have used kiosks at the three existing pilot locations. Global Entry is open to U.S. citizens or lawful permanent residents. For more information on CBP trusted traveler programs, or for an application to enroll in the Global Entry pilot program, please the globalentry.gov Web site. ( Global Entry Program – Applications Are Available Now! )."

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