On May 26, 2010, the Hilton Naples signed an agreement with U.S. Immigration and Customs Enforcement (ICE) to participate in the voluntary IMAGE program. This is the first company in the city of Naples, Florida to sign up for the IMAGE program. IMAGE, or ICE Mutual Agreement between Government and Employers, is a government initiative designed to improve employer self-compliance. Employers participating in IMAGE must submit first to a Form I-9 audit by ICE and verify all of their employees' social security numbers through the Social Security Number Verification System (SSNVS). Employers are also obligated to  sign up for E-Verify, conduct I-9 audits semiannually using a neutral party, ensure that only trained employees complete Form I-9 and use E-Verify, set protocols for responding to no-match letters, and much more. Employers using E-Verify must sign a Memorandum of Understanding or MOU which requires them to allow ICE (DHS) and SSA or their authorized agents or designees to "make periodic visits" to the employer.

IMAGE is NOT a “safe harbor” for employers. ICE has not indicated that IMAGE “partners” will not be subject to enforcement actions. Moreover, E-Verify participants have been subject to worksite enforcement actions. Given ICE’s inspection powers under IMAGE an employer should seriously consider the consequences of implementing these practices.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Copyright 2010 American Health Lawyers Association, Washington, DC.
Reprint permission granted.
Further reprint requests should be directed to
American Health Lawyers Association
1025 Connecticut Avenue, NW, Suite 600
Washington, DC 20036
(202) 833-1100
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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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."

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The EB-5 program was created by Congress as part of the Immigration and Nationality Act (“INA”) of 1990. Under section 203(b)(5) of the INA, 10,000 immigrant investor visas (green cards or EB-5 visas) per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under a pilot program involving a designated “Regional Center.” There are more than 20 such designated EB-5 programs nationwide. “Regional Center” is an entity, organization or agency that has been approved as such by the U.S. Citizenship and Immigration Service (“USCIS”). “Regional Center” designation focuses on a specific geographic area within the United States and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. The Lake Buena Vista Resort Village & Spa Resort has become Florida’s first designated EB-5 Regional Center by USCIS. The designation, known as the “EB-5” immigrant investor program, allows foreign nationals to become lawful permanent residents (LPR or green card holders) of the United States by investing at least a $1 million in a project that creates at least 10 jobs. Lake Buena Vista & Spa Resort plans to build 1,300 condo-hotel units. The resort is planned for 1,875 furnished resort condo units ranging from 1,080-2,170 square feet, along with dining, a fitness center, spa-salon, aquatic center, and other amenities. The EB-5 program will help to finance the construction of a new 152-unit building at the resort.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On August 8, 2008, USCIS issued a statement informing the public that the new U.S. Passport Card may be used in the Employment Eligibility Verification form (I-9) process. USCIS also stated that "...last month, the Departments of State and Homeland Security announced that the new passport card was in full production. The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda. While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program." USCIS states that the passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Members of AILA (American Immigration Lawyers Association) are reporting errors in EADs (Employment Authorization Documents) cards, including the following: 1) Incorrect country of birth, date of birth, gender or spelling of name. 2) Clearly incorrect validity dates. Please note that EADs approved at the NSC USCIS Nebraska Service Center) under the "express" adjudication system are approved as of the date of adjudication, whether it is an initial EAD or an extension. An example of a clearly incorrect validity date is an EAD approved on 07/09/2008 bearing validity dates from 01/01/2008 to 01/01/2009. 3) Approval for one year of validity, when the applicant clearly qualifies for two years (please review USCIS (U.S. Citizenship and Immigration Services) updates and AILA postings to make sure the applicant qualifies). 4) Switched photos, i.e. husband's card has wife's photo and vice versa or a completely different person. If any of the above situations apply, please follow the instructions to submit an inquiry for individual case liaison assistance. You may ignore the instruction to first call the 1-800 customer service line at NCSC (National Customer Service Center) when submitting requests for EAD correction. To minimize delays, please describe the nature of the error as clearly as possible when submitting your request. Your liaison request will be forwarded to an NSC liaison committee member, who will review it and respond to you with instructions for obtaining the corrected EAD. IMPORTANT NOTE: individuals will be required to submit the incorrect EAD card in the original to the NSC in order to receive a corrected EAD card. Merely requesting a corrected card either by telephone or in writing will not be effective. Therefore, where necessary please ensure that the applicant provides the EAD to his or her employer for I-9 purposes prior to sending it in for correction. No new photos should be required, except in the circumstance of switched photos.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The American Immigration Lawyers Association ("AILA") recently stated that "USCIS had previously announced that they would begin to issue 2-year EAD cards for some adjustment applicants under 8 C.F.R. §274a.12(c)(9). USCIS has provided AILA liaison with additional clarifications regarding eligibility for the 2-year card: 1)USCIS will review the issue of visa retrogression at the time the I-765 application is filed. However, if the priority date is current as of the date of filing, but later retrogresses while the I-765 application is pending, USCIS has the discretion to review the case again and issue the 2-year EAD. If the priority date is backlogged as of the date of filing, but later becomes current while the I-765 is pending, USCIS also has the discretion to review the case again and issue a 1-year EAD, and  2) in order to be eligible for a 2-year EAD card on a concurrently-filed adjustment of status application, the I-140 petition must be approved. If the I-140 is still pending, USCIS will only issue a 1-year EAD card." More clarifications on this subject coming up.  I will keep you posted.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On June 9, the White House announced that President Bush had signed on June 6 an Executive Order (“the Order”) amending Executive Order 12989. The Order, an aggressive move to keep illegal immigrants out of the US workforce, requires contractors and others doing business with the federal government to use E-Verify (formerly known as the Basic Pilot or Employment Eligibility Verification Program). E-Verify is an electronic employment verification system run by DHS in partnership with the Social Security Administration, which permits participating employers to electronically verify the employment eligibility of newly hired employees. E-Verify is voluntary for private companies, but mandatory for government agencies. The Order, which will also apply to new hires initially, in time, will affect millions of workers working for federal contractors nationwide. 

One of the problems with the Order requirements is that E-verify has shown some critical flaws even when operating in a relatively small environment.  E-Verify is also problematic from a business perspective because errors in the Social Security database can lead to flagging legal residents and citizens.  The June 10th's issue of the LA Times states that "Chertoff said E-Verify cleared 99.5% of qualified employees automatically. But in 2006 the Social Security inspector general found discrepancies in 17.8 million records for citizens and legal immigrants that would create a "significant workload" to correct. Lawmakers and other critics warned that forcing the more than 200,000 federal contractors to join E-Verify could overwhelm the Social Security Administration and create havoc for legal workers. 'As the administration requires more employers and workers to move into E-Verify, it should at the same time ensure that the system does not impinge upon U.S. citizens' fundamental right to earn a living,' said Rep. Zoe Lofgren (D-San Jose), head of the House subcommittee on immigration. Firms doing business with the government risk losing their contracts if they break federal rules. Some business executives worry the new requirement could add expenses. 'There's concern about increased costs and delays in hiring brought about by inaccuracies in the database,' said Neal J. Couture, executive director of the National Contract Managers Assn. Timothy D. Sparapani of the American Civil Liberties Union argued that E-Verify was 'not real immigration enforcement' because the system could not detect applicants who used documents stolen from legal workers. He predicted the system would prompt more identity theft by illegal immigrants.' 'American workers' identities are essentially going to become a black market commodity,' Sparapani said."

The Order states that the basis for requiring government contractors to use E-Verify is that the “Order is designed to promote economy and efficiency in Federal Government procurement. Stability and dependability are important elements of economy and efficiency. A contractor whose workforce is less stable will be less likely to produce goods and services economically and efficiently than a contractor whose workforce is more stable.”  I find the government’s statement suspicious because the government, although it has failed time and time again, has tried on repeated occassions to push legislation or regulations that would impose a mandatory electronic employment verification program on all US employers. Further, the Order is presented as being designed to promote "economy and efficiency" along with "stability and dependability," but the reality is that there is nothing economic, efficient, stable or dependable about skilled and unskilled jobs that cannot be filled because there are not enough American workers readily available to work. 

Interestingly, employers in the health care business using the Medicare program, janitorial services providing services to courts, universities getting federal student loans for its students or grants for some of its projects and programs, companies in the defense industry, and even contractors serving food in cafeterias in any government agency will be considered government contractors and will have to comply with this order.

The government in its zeal for security and enforcement is failing to consider the true economic impact these measures will have on employers and consumers. Enforcing this type of order in the absence of immigration reform which could provide employers with helpful avenues could doom - against contrary government opinion - many efficient employers.  I am not sure how the government is going to enforce this Order, but for us in Florida enforcing these measures could have a long lasting negative effect.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link