Florida Employment Law Blog : Florida Employment Lawyer & Attorney : Epstein Becker Green Law Firm : Immigration, Discrimination, Labor, FLSA : Serving Miami, Fort Lauderdale, Florida

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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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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AmericasNewsToday reported that 16 foreign nationals and corporations have been indicted in Miami on charges of illegally exporting potential military and explosives components to Iran. I reproduce here below the entire article: “A federal grand jury in Miami, Fla., has returned a Superseding Indictment charging eight individuals and eight corporations in connection with their participation in conspiracies to export U.S.-manufactured commodities to prohibited entities and to Iran. The defendants are named in a thirteen (13) count Indictment – returned on Sept. 11, 2008 and unsealed today -- that includes charges of conspiracy, violations of the International Emergency Economic Powers Act and the United States Iran Embargo, and making false statements to federal agencies in connection with the export of thousands of U.S. goods to Iran. The charges were announced today by R. Alexander Acosta, U.S. Attorney for the Southern District of Florida; Patrick Rowan, Acting Assistant Attorney General for National Security, U.S. Department of Justice; Mario Mancuso, Under Secretary of Commerce for Industry and Security, U.S. Department of Commerce; Adam Szubin, Director, Department of the Treasury, Office of Foreign Assets Control (OFAC); Sharon Woods, Director, Defense Criminal Investigative Service (DCIS); and Julie L. Myers, Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE). The Superseding Indictment alleges that the defendants purchased, and then illegally exported to ultimate buyers in Iran, numerous "dual use" commodities. "Dual-use" commodities are goods and technologies that have commercial application, but could also be used to further the military or nuclear potential of other nations and could be detrimental to the foreign policy or national security of the United States. In this regard, the Superseding Indictment alleges that the defendants caused the export of 120 field-programmable gate arrays, more than 5000 integrated circuits of varying types, approximately 345 Global Positioning Systems ("GPS"), 12,000 Microchip brand micro-controllers, and a Field Communicator. All of these items have potential military applications, including as components in the construction of improvised explosive devices (IEDs). The charges announced today are the result of an extensive inter-agency investigation into the use of U.S.-made goods in the construction of IEDs and other explosive devices used against Coalition Forces in Iraq and Afghanistan. Charged in the Superseding Indictment are: Ali Akbar Yahya, an Iranian national and naturalized British citizen; F.N. Yaghmaei, a/k/a " Farrokh Nia Yaghmaei," an Iranian national; Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Madjico Micro Electronics, a/k/a "MME," and Al-Faris, all Dubai-based businesses; Neda Industrial Group, an Iran-based business; Bahman Ghandi, a/k/a "Brian Ghandi," an Iranian national; Farshid Gillardian, a/k/a "Isaac Gillardian," a/k/a "Isaac Gill," an Iranian national and a naturalized British citizen; Kaam Chee Mun, a/k/a "Brian Kaam," a resident of Malaysia; Djamshid Nezhad, a/k/a "Reza," a resident of Germany; Ahmad Rahzad, a/k/a "Saeb Karim," an Iranian national; Majid Seif, a/k/a "Mark Ong,"a/k/a "Matti Chong," an Iranian national residing in Malaysia; and Eco Biochem Sdn BHD and Vast Solution Sdn BHD, Malaysian businesses. The defendants are charged with purchasing and causing the export of U.S. goods to Iran through middle countries, including the United Arab Emirates, Malaysia, England, Germany, and Singapore. More specifically, the charges in the Indictment are as follows:

• Count 1 of the Superseding Indictment charges defendants Yahya, Yaghmaei, Mayrow General Trading, Atlinx Electronics, Micatic General Trading, Majidco Micro Electronics, Al-Faris, and Neda Industrial Group with conspiracy to export goods to Iran and to defraud the United States, in violation of the International Emergency Economic Powers Act, Title 50, United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and Title 18, United States Code, Section 371.

• Counts 2 through 5 charge defendants Yahya, Yaghmaei, Micatic, and Mayrow with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 6 through 8 charge defendants Yahya, Yaghmaei, Majidco, Micatic, and Mayrow with making false statements in federally mandated shipping documents regarding the ultimate destination and use of the goods, in violation of Title 18, United States Code, Section 1001(a)(2).

• Count 9 charges defendants Yahya, Mayrow, Al-Faris, Ghandi, Gillardian, Mun, Nezhad, Rahzad, Seif, Eco Biochem, and Vast Solution with conspiracy to export goods to Iran, in violation of the International Emergency Economic Powers Act, Title 50 United States Code, Sections 1702 and 1705(a), the United States Iran Embargo, and the Export Administration Regulations, and to defraud the United States, in violation of Title 18, United States Code, Section 371.

• Counts 10 and 11 charge defendants Al-Faris, Seif, and Vast Solution with exporting U.S. goods from the United States to Iran, in violation of the International Emergency Economic Powers Act and the United States Iran Embargo.

• Counts 12 and 13 charge defendant Seif with making false statements by misrepresenting the ultimate destination and use of the goods on Federal Form BS-711 Statement By Ultimate Consignee and Purchaser, in violation of Title 18, United States Code, Section 1001(a)(2).

U.S. Attorney Alex Acosta stated, "The dual use items that the defendants illegally exported to Iran have military applications, including the making of improvised explosive devices. I urge any domestic supplier who may have unwittingly helped the defendants, or others like them, to come forth and report the matter to federal law enforcement. We cannot profit at the expense of our soldiers’ safety abroad. The United States Attorney’s Office will continue to investigate this matter as additional information is uncovered." "Today's indictment details the global reach of Iranian procurement networks and underscores, in dramatic terms, the importance of keeping sensitive U.S. technology out of their grasp," said Patrick Rowan, Acting Assistant Attorney General for National Security at the U.S. Department of Justice. "This extensive, effective government effort has broken up a lethal international ring seeking to harm American and allied forces as well as innocent civilians by acquiring sensitive U.S. technology capable of producing improvised explosive devices (IED) similar to those being used in Iraq and Afghanistan," said Mario Mancuso, Under Secretary of Commerce for Industry and Security. "The Commerce Department remains firmly committed to protect our forces by prosecuting those who try to do them harm, and today’s action illustrates the broad scope of that endeavor." Adam Szubin, Director of the Department of the Treasury’s Office of Foreign Assets Control, added, "The U.S. Government is wielding a powerful array of authorities against Iran's proliferation supply chain. In concert with today's unsealed indictment against Iran's suppliers and middlemen, Treasury is levying sanctions against Iranian military end-users that procured goods from those named in today's indictment. Together, the actions of the Justice, Commerce, and Treasury Departments will expose Iran's proxies to the world and undermine its procurement activities." Sharon Woods, Director of the Defense Criminal Investigative Service of the Department of Defense Office of Inspector General, stated, "The illegal diversion of U.S. military technologies through deception, by domestic and foreign companies, poses a significant danger to America's soldiers on the battlefield. These illegally exported goods provided our enemies with necessary components to manufacture improvised explosive devices, designed to kill and maim U.S. troops and allies. The Pentagon's Defense Criminal Investigative Service and its investigative partners will continue to pursue and expose these hidden enemies to help protect our soldiers as we fight against global terrorism." "The national security implications of this case cannot be underestimated," said Julie L. Myers, Homeland Security Assistant Secretary for ICE. "The export of dual use technology is controlled for good reason. In the wrong hands, these items could be used to harm our soldiers, our homeland, and our allies. Enforcing U.S. export laws is one of our top priorities, and we will continue to work with our law enforcement partners to ensure that those who put our country at risk are brought to justice. "If convicted on the conspiracy charges, the defendants each face a statutory maximum sentence of up to five (5) years’ imprisonment. If convicted of violating the International Emergency Economic Powers Act and the Iran Embargo, the defendants face a statutory maximum sentence of up to twenty (20) years’ imprisonment. If convicted of making false statements, the defendants face a statutory maximum sentence of up to five (5) years’ imprisonment. In addition, the defendants face possible fines of up to $1 million. Acosta commended the investigative efforts of the U.S. Department of Commerce, which led this investigation, the Office of Foreign Assets Control of Department of the Treasury, the Defense Criminal Investigative Service, and U.S. Immigration and Customs Enforcement, Office of Investigations, for their work on this case. The case is being prosecuted by Assistant U.S. Attorney Melissa Damian. Anyone with information regarding the activities of these defendants or others like them should contact the Commerce Department by calling 1-800-424-2980. On the Web: http://www.bis.doc.gov/.”

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I am reproducing in its entirety the following article, I think you should read it:

"ICE Enlists Companies to Stem Illegal Hirings - Firms Sign On for Self-policing; Critics Wonder If It Could Be a Trap By SUSAN CARROLL Copyright 2008 Houston Chronicle, Sept. 9, 2008, 10:52PM

With high-profile workplace immigration raids making news across the country, many employers might not seem eager to sit face-to-face with an Immigration and Customs Enforcement agent and open up their books for scrutiny. But Betsy Kippenhan, an executive with a Houston-based staffing firm, seemed downright excited about it, speaking fondly of the "ICE advocate" who will be helping the company, Talent Tree, verify its worker eligibility through an ICE program called "IMAGE."

"We wanted to make sure they were going to look at us and give us the stamp of approval, which is what they've done," said Kippenhan on Tuesday after formally signing up for ICE's self-policing program for employers. But some immigration attorneys and labor advocates warned that IMAGE could be a legal trap for employers who haven't been vigilant examining workers I-9 forms, which establish eligibility to work in the U.S. In exchange for free education and training, companies participating in IMAGE (Mutual Agreement between Government and Employers) agree to meet certain requirements, including using the federal government's Internet-based employment verification system and checking workers' Social Security numbers. Employers also must agree to an ICE audit of workers' employment paperwork and promise to self-report any violations of hiring law.

Membership growing
ICE spokeswoman Pat Reilly said the program started small in January 2007 with only nine members. On Tuesday it added 26 members and 11 associate members, a category created in June to give employers two years to get their paperwork in order before submitting to an ICE audit or producing an annual report. The membership rolls range from small businesses like the Bellaire-based construction company All American Brothers, to big names in government contracting, like General Dynamics. Smithfield Foods Inc., which employs more than 57,000 people worldwide, also is an associate member. Reilly said some employers expressed an interest in the program after "someone else in their industry was the subject of a worksite enforcement" raid. ICE has stepped up its worksite enforcement in recent months, reporting 3,900 arrests for immigration violations and more than 1,000 criminal arrests from worksite enforcement investigations in the past 10 months. According to ICE, 116 owners, managers, supervisors or human resources employees, were facing criminal charges in connection with on-the-job raids, including harboring or knowingly hiring undocumented workers.

'A poor image'
For some companies, Reilly said, the program is "brand protection, and an insurance against 'headline risk'. You don't want your brand bandied about as somebody who doesn't comply with the law because then you lose clients' confidence." Kathleen Walker, an El Paso attorney and executive committee member with the American Immigration Lawyers Association, said IMAGE "has a poor image" and has attracted few participants. "I think it's a mirage," Walker said. "Employers can put themselves into a trap signing up for IMAGE." Charles Foster, a Houston immigration attorney with Tindall & Foster, urged employers to use caution before signing up for the program, particularly if "their house is not in order." "On the surface, there is nothing wrong with it," he said. "But there are concerns that employers should be aware of. You're effectively inviting the government to review all of your employment verification forms. That could produce significant civil and criminal liability."

'Not a trap'
Foster and Walker pointed to a raid of the Swift & Co. meatpacking plants in December 2006 in Texas as an example of what can go wrong with private partnerships with ICE. Swift had voluntarily participated in the government's electronic employment verification system for more than a decade before the raids, which resulted in more than 1,200 arrests at six meatpacking plants. Reilly said E-Verify is a "free, easy-to-use tool," but is not a stand-alone solution to detecting undocumented workers. She said hiring practices at Swift plants showed a pattern of blatant illegal behavior. Reilly said IMAGE is "not a trap," pledging that ICE will work with businesses that participate in the program. "When we look at their records ... and patterns that might indicate an illegal workforce, we're not going to say, 'You have to come into compliance by tomorrow.' " Reilly said. "But what we are going to look for is if there is any illegal activity going on in their workplace, we're going to ask them to take care of that first, like stolen identities and flagrant fraudulent documents." Hector Diaz, the president of All American Brothers Company based in Bellaire, called the program "the wave of the future." He signed up as an associate member on Tuesday, and completed his first day of IMAGE training in Arlington, Va., saying the program has become an necessity for his roughly 20-employee construction company, which works exclusively on government contracts. "I think it's going to be a requirement for federal contract work," said Diaz, whose recent projects included work at Ellington Field and NASA. "You can't be working on a government contract and have an illegal alien."

Reassuring clients
Ruth McCurdy, vice president for corporate connections for Talent Tree, which employs 35,000 temporary associates and about 250 staff members nationwide, said one of the main goals is to reassure clients that workers placed with their companies by the staffing firm are eligible to work in the U.S. "There are companies out there that employ illegal aliens and put them in companies, and that puts a lot of people at risk," McCurdy said. "When you are working with a third party for your workforce, you need to know you have a partner that has people who have passed the eligibility requirements."

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On August 28, 2008, The Des Moines Register published  a story by Tony Leys entitled "Critics tie scant new charges to wariness after Postville raid."  Florida employers would be well served if they read it.  I reproduce the story in full here below:
 

"Critics of the way suspected illegal immigrant workers were handled after last May's raid in Iowa noticed a change in government tactics after this week's raid in Mississippi. Federal officials detained 595 workers at a Mississippi electric-transformer factory Monday but filed criminal charges against just eight of them. That's in marked contrast to what happened after the raid at the Agriprocessors meatpacking plant in Postville, where prosecutors filed criminal identity-theft charges within days against 305 of the 389 workers who were arrested. Most of those people quickly pleaded guilty during mass hearings held at the National Cattle Congress grounds in Waterloo and now are serving five-month prison sentences. Most of the workers arrested in Mississippi are being held on civil immigration charges, which generally lead to deportation. A spokeswoman for the Immigration and Customs Enforcement agency would not specify why so few of the Mississippi workers had been charged with crimes. She said more charges could still be added. But one of the most prominent critics of the legal process used in Iowa said Wednesday that the government appears to be backing away from those tactics. "I think Postville was a huge embarrassment because of the criminalization of workers," said Erik Camayd-Freixas, a veteran federal courts interpreter who participated in the Cattle Congress hearings. Camayd-Freixas, who is a Spanish language professor at Florida International University, made national waves this summer by publicly complaining that the legal process used in Iowa was unfair to the defendants. He said uneducated Guatemalans and Mexicans were pressured into pleading guilty to identity-theft charges, even though they didn't realize the Social Security cards they'd bought contained someone else's numbers. The vast majority had never been charged with other crimes, he said, and they had no intent to commit identity theft. Camayd-Freixas said Wednesday that in his 20 years of working with the federal courts, he'd never seen mass, rushed hearings such as those held in Iowa. He noted that news reports from Mississippi indicated that the eight people who were charged with crimes after the raid there had been taken to a regular federal courthouse for standard hearings. ICE spokeswoman Barbara Gonzalez said more criminal charges could be filed against people seized in the Mississippi raid. She said that too often, Americans believe raids indicate the end of investigations. "They don't," Gonzalez said. "In fact, the investigation continues." Federal prosecutors did not respond to requests for comment. The Mississippi raid surpassed the size of the one in Postville, which had been described as the biggest single-site immigration raid in U.S. history. A national group calling for tougher immigration enforcement declined to speculate Wednesday on why the Mississippi raid hadn't brought more criminal charges. The facts of individual cases could be much different, said Ira Mehlman, spokesman for the Federation for American Immigration Reform. Among the Agriprocessors workers, he said, "there were a lot of things besides just working in the country illegally." Drake University law Professor Bob Rigg said the process being used in Mississippi looks familiar. "That used to be the norm until Postville," said Rigg, who has criticized the prosecution methods used in Iowa. He said it's hard to tell why the government hasn't filed mass charges in the latest case. But lawyers around the country are aware of the Iowa controversy, Rigg said. Among other things, it led to a critical New York Times editorial titled "The Shame of Postville." "It could be the U.S. attorney in Mississippi decided, 'I'm not going to go through that,' " Rigg said."

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