USCIS Introduces New U.S. Passport Photo Matching For E-Verify

On October 4, the U.S. Citizenship and Immigration Services ("USCIS") hosted a webinar for employers to introduce the latest improvement to the E-Verify system, the addition of U.S. Passports and Passport Cards (collectively, "Passports," and individually, a "Passport") to the photo-matching process.

 

Photo matching is a feature of E-Verify that allows an employer to compare a newly hired employee's Employer Authorization Document ("EAD") or Permanent Resident Card ("Green Card") to the image of the card stored in the database of the U.S. Department of Homeland Security ("DHS"). However, this feature may be used only after: (i) the employee has attested to being a lawful permanent resident and/or authorized to work in the United States; (ii) the employee presents a newer version of a Green Card or EAD at his or her own initiative; (iii) E-Verify has confirmed the employee's employment eligibility; and (iv) any Tentative Nonconfirmations ("TNC") from the Social Security Administration or USCIS have been resolved. The present photo-matching process does not currently have the capability to verify the authenticity of older green cards, older EAD cards, or any of the other identification documents that an employee may present when completing the I-9 process.

 

Although part of E-Verify's overall photo-matching process, the photo-matching process for Passports has some key differences compared to the photo-matching process used for Forms I-751 (Green Cards) and I-766 (EADs). For example, one difference involves when to display a TNC case result. With the photo-matching process for Passports, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves the TNC, E-Verify will require the employer to complete the photo-matching step before displaying a case result. In the photo-matching process for Green Cards or EADs, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves it, the employer must display the case result immediately before moving forward with the photo-matching step. Additionally, it is very possible that E-Verify may not be able to access the employee's photo during the photo-matching process. If this occurs during the Green Card or EAD photo-matching process, the system will simply bypass the photo-matching screen altogether. However, during the Passport photo-matching process, the system will provide a "No Photo on this Document" message and employers must proceed with the process.

 

Another interesting difference is that, when photo matching Green Cards or EADs, E-Verify will display a thumbnail photo when viewing the case details. This, however, is not the case for Passports because the USCIS is not able to store Passport photos. Yet, E-Verify will display a thumbnail photo that an employer may attach and submit when referring a photo mismatch TNC to DHS. E-Verify will display this thumbnail photo whether the document is a Green Card, an EAD, or a Passport.

 

As of April 3, 2009, for employment verification (Form I-9) purposes, employees must present an unexpired Passport. E-Verify will now enforce this rule by looking to determine if the "hire date" is on or after April 3, 2009. If the hire date is before April 3, 2009, the system will accept an expired Passport (good news for federal contractors needing to submit older I-9 forms showing valid passports at the time). If the hire date, however, is on or after April 3, 2009, an error message will appear and the case will be automatically discontinued. The employer's only option is to create a new E-Verify case.

Two-Part Series Seminar: Employment Verification Issues for Employers:

 
 

 
Two-Part Series SeminarForm I-9 and E-Verify Training
Employment Verification Issues for Employers:

Presented by
Hector A. Chichoni, Esq., EpsteinBeckerGreen
  
 

Since its inception more than two decades ago, employers have failed to fully comply with the Immigration Reform and Control Act (IRCA) of 1986. As a result, Form I-9 compliance levels among employers are of great concern. With the government cracking down on compliance, employers need to take immediate steps to get their I-9 “houses” in order.

Moreover, on September 14, 2009, Alejandro Mayorkas, head of U.S. Department of Homeland Security, Citizenship and Immigration Services, told reporters that the agency is “taking steps to prepare for the possibility that E-Verify may become mandatory for all employers” adding that “it is our responsibility to be ready should E-Verify ever be required of all employers.”

 

We are conducting a two-part interactive Form I-9 and E-Verify training program to offer hands-on training to ensure the attendees are confident, knowledgeable and capable of managing I-9 and E-Verify compliance.
 
 
WHERE
The Miami City Club
 
200 South Biscayne Boulevard
55th Floor
Miami, Florida 33131
 
 
Part  I
Form I-9 Training
 
Form I-9 training is the first part of the two-part series which includes copyrighted training materials with practical examples along with useful documentation and resource materials. The components of part one, Form I-9 Training, includes:
  • In-depth look at I-9 Completion, Documentation and Receipt Rules.
  • Forensic training for questionable documents.
  • Review internal process for re-verification and notification tracking.
  • Establish an I-9 correction process.
  • Provide self-evaluation and team-based testing.
  • Help you learn how to process the I-9 form correctly;
  • Raise your comfort level in working with the documents and policies involved;
  • Enable your company to ensure the employees are authorized to work and are compliant with I-9 standards;
  • Serve as a quick and easy job aid and reference whenever needed.
  •  
E-Verify training, the second part of the two-part series, will help you get the information you need to properly weigh the pros and cons of the E-Verify system, you will learn what every employer should know about the electronic employment verification system:
  • How federal contractors are troubleshooting E-Verify issues
  • What chances have been made, what problems have been solved, and what problems remain.
  • How the government is increasing its worksite enforcement activity
  • Best practices for avoiding worksite enforcement actions
  • How to find out if your organization is being targeted from an audit, and what agents look for in an audit
  • Your legal recourse if ICE agents arrive on site
  • The potential civil and criminal consequences for employers from an audit
  • Recent government actions to fine employers for immigration violations
  • Your legal recourse if fines are levied against your organization
  • What happens to workers who can't prove they're authorized to work in the U.S.
  • How the government's new audit strategy impacts the current debate on making E-Verify mandatory for all employers              
Part II
 E-Verify Training
Date and Time: Thursday, October 21, 2010, 8:30 am - 10:30 am
Date and Time: Thursday, September 30, 2010, 8:30 am - 10:30 am
 

REGISTRATION FEE
The fee for this event is $25 for each session, or you can purchase both sessions in advance for $35.  This fee includes breakfast, parking and training materials. 
 


 
To register, please .click here

If you have any questions about this briefing, please contact 

Anneliese Garcia, (305) 579-3200, or agarcia@ebglaw.com
 
About EBG: Founded in 1973, EpsteinBeckerGreen is a law firm with approximately 350 lawyers practicing in offices in Atlanta, Boston, Chicago, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford and Washington D.C. The Firm’s size, diversity, and as a founding member of the International Lawyers Network (ILN), allow its attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EpsteinBeckerGreen continues to build and expand its capabilities as a law firm focused on five core practices: Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate. For more information on EpsteinBeckerGreen, please visit www.ebglaw.com. For more than three decades, the EpsteinBeckerGreen seminar series has introduced senior executives, general counsel and human resources professionals to cutting-edge issues in nearly every area of business touched by law.
 

 

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Hilton In Naples, FL Signs Up For The IMAGE Program

 

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.

ICE Expands Worksite Enforcement Activities in the Southeast

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!

 

USCIS Launches Informational Video on the Systematic Alien Verification for Entitlements (SAVE) Program

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.

USCIS Announces Extension of Form I-9

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

USCIS Issues Additional Guidance On Academic Qualifications For Certain H-1B Health Care Specialty Occupations

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.

 

Krispy Kreme Doughnuts, Inc. Fined For Hiring Foreign Workers Not Authorized For Employment

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.

USCIS Issues Guidance on Employment Eligibility Verification Form: Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

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.

USCIS Announces Resumption of Premium Processing for I-140 Petitions

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.

 

 

Reductions in Force and Employees in H-1B Status--What HR Needs to Know

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.

This article will show HR personnel what they need to know to keep their employers compliant when going through a RIF affecting foreign workers in H-1B status and to identify a few available strategies that may ameliorate their employers’ potential liability.

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.

[1]The U.S. Citizenship and Immigration Services (USCIS) makes a very important distinction between layoff and termination. Layoff for USCIS is more closely related to “benching,” a period of nonproductive status for which the employer is completely responsible as opposed to a period of nonproductivity for which the H-1B beneficiary is responsible, i.e. medical leave, vacation, etc. Termination refers to a clean and effective severance of the employer-employee relationship, therefore resulting in the loss of the principal’s H-1B status. Because USCIS may consider laid-off H-1B visa holders as still maintaining status with the same employer (i.e. during the economic or work slowdown), a beneficiary may continue to reside in the U.S. and maintain lawful nonimmigrant status in spite of being laid off provided that the employer continues paying the beneficiary the required wage during such nonproductive periods. HR professionals, however, are encouraged to find sound legal advice when dealing with this complex area of the law.

[2] Under the American Competitiveness and Workforce Improvement Act of 1998, if the employee in H-1B status resigns, the U.S. employer cannot require him/her “to pay a penalty for ceasing employment with the employer prior to date agreed to by the nonimmigrant and the employer.”

[3] Some offices and officers have allowed up to 30 days between the individual’s falling out of H-1B status and the filing of the new employer’s H-1B petition; others up to 60 days and even longer periods of time. This practice has created a great deal of confusion among practitioners and HR. Further, the Jan. 21, 2009, USCIS—Vermont Service Center (VSC) liaison minutes (AILA Doc. No. 09012768), stated that “VSC discussed the impact of a revocation of an H-1B petition on H-1B portability. VSC indicated that in order to be eligible to ‘port’ to a new H-1B employer, the new petition must be filed before the old petition is revoked or withdrawn by the old employer. VSC did not state that the H-1B nonimmigrant had to be currently maintaining status with the old employer to be eligible for portability, nor did VSC indicate that it would not exercise discretion allowed under 8 C.F.R. § 214.1(c)(4) in favor of an extension of status.”

[4] The discussion of H-1B status holders qualifying for unemployment often, although not related, brings up the question from HR as to whether once a terminated H-1B status has fallen out of status, he/she is able to qualify for workers’ compensation benefits. The answer seems to be that they are. Out-of-status individuals are eligible for workers’ compensation in 30 states and probably covered in 19 other states.

[5] Under California law employers may have an obligation to ameliorate the impact of a terminated H-1B status holder where there is a reasonable alternative. Employers should consult labor and employment and immigration lawyers on this issue.

[6] Employers acquire certain specific obligations under U.S. immigration law when filing an H-1B petition on behalf of a foreign national. However, additional responsibilities may be acquired under the laws of the state in which the employer operates or where the foreign national employee works, as a flurry of states have enacted immigration laws and state courts, under certain conditions, have deemed H-1B petitions to be employment contracts.

[7] One important issue is that the employer must pay the required wage as of the first day of the beneficiary’s employment. Paying the correct required wage as stated in the LCA from the beginning of beneficiary’s employment could avoid future problems in terms of possible back wage complaints against the employer. DOL follows the 30/60-day rule. That is, the employee in H-1B status must be put on the employer’s payroll and be paid the required wage stated on the LCA by or on the 30th day from the moment the employee entered the United States. However, if the employee in H-1B status has been in the U.S. since the H-1B petition was approved, he/she must be paid the full required wage stated on the LCA by or on the 60th day after the date when the employee became eligible to work for the U.S. employer.

[8] Employers are required to pay the higher of either the actual or prevailing wage. The actual wage is the wage paid to other co-workers in similar positions. The prevailing wage is the average salary paid to workers in the area of intended employment.

[9] Any reduced salary or wage during the validity of the LCA is considered a violation of DOL regulations and can lead to an assessment of back wages and possible fines. The DOL could also seek back wages covering the period from when an H-1B worker was last paid to when USCIS receives a written withdrawal request for the H-1B petition. If the employer waits several months to send the withdrawal request, and does not have other clear proof of the termination of employment, there can be an assessment of back wages.

[10] “Benching” is the term used for “temporarily” laying off an employee or putting the employee in nonproductive status without pay or at a “reduced” pay during the period he/she is not working. The employer, however, is not required to pay if the nonproductive period is due to “conditions unrelated to employment” at the employee’s “voluntary request and convenience” (i.e. caring for a sick relative, maternity leave, etc.) which renders the H-1B status holder employee unable to work. A word of caution, employers should not try to use this provision as a disguise for benching, since it could amount to fraud or misrepresentation.

[11] Penalties for I-9 employment eligibility verification violations can range from $250 to $3,000 just for improper completion of the form. Penalties for technical and substantive, retention, and for not making timely available for inspection the I-9s can range from $100 to $1,100 for each violation. Penalties for knowingly hiring or continuing to employ unauthorized workers fines range from $250 up to $11,000 per violation. If a company shows a pattern of hiring unauthorized foreign workers, the company could also be liable for criminal charges and penalties of as much as $3,000 per worker or employee and/or six months of imprisonment. In this area of the law, ICE has considerable discretion assessing fines. When assessing fines, ICE looks at the size of the company, the seriousness of the violations, good faith efforts, and to past violations, if any.

[12] If the employer does not comply with LCA regulations, DOL will issue a finding that the employer has violated LCA requirements. Examples of such a finding can include “willful” failure to pay the required wage rate or “substantial” failure to post a notice of the LCA filing. For filing an LCA which is found to misrepresent a material fact, civil money penalties can be imposed up to US$1,000 per violation, and debarment from the H-1B program. DOL can impose additional fines up to US $35,000 and five years imprisonment for criminal violations related to LCA practices.

Today the U.S. economy employs a large number of professional foreign workers, perhaps more than at any other time in its history. Given this large number of foreign workers in the U.S., RIFs are more likely to involve the termination of workers holding H-1B nonimmigrant visa status.
 

USCIS Updates FY 2010 H-1B Count (Updated 4/21/09)

April 20, 2009 H-1B Cap Count

 On April 20, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 20, 2009, approximately 44,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

 April 17, 2009 H-1B Cap Count

On April 17, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

Cite as AILA InfoNet Doc. No. 09042065 (posted Apr. 21, 2009)

Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers

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."

Provisions of the Stimulus Bill Affecting H-1B Visas

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.

 

USCIS INCREASES PERIOD OF STAY FOR TRADE-NAFTA PROFESSIONAL WORKERS FROM CANADA AND MEXICO

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. 

 

USCIS Dedicates Newest Office in Orlando

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.

Orlando's Lake Buena Vista & Spa Resort Designated First EB-5 "Regional Center" in Florida by USCIS

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.

USCIS INFORMS THE PUBLIC THAT NEW PASSPORT CARD IS ACCEPTABLE FOR EMPLOYMENT ELIGIBILITY VERIFICATION

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.

U.S. Nebraska Service Center Will Assist with Employment Authorization Documents Errors

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.

AILA-USCIS Update on Two-Year EAD Processing

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.

USCIS Launches Online Service to Check Status of FOIA Requests

U.S. Citizenship and Immigration Services (“USCIS”) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (“FOIA”). Customers can use the online service anytime by entering their assigned control number to receive an immediate response on the status of their FOIA request. The customer will then receive either a ‘pending’ or ‘processed’ response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A ‘processed’ request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information. Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). As USCIS receives more than 110,000 requests annually for access to immigration records, the agency continues to improve its FOIA procedures and enhance processing times. For example, last year USCIS launched a new ‘Notice to Appear’ track that provides accelerated access of a large portion of FOIA requests from individuals, or their representatives, who have been notified to appear before an immigration court. That new track provides those customers quicker access to their Alien-File (‘A’-File) when it is requested through the FOIA process.

USCIS to Issue Two-Year Employment Authorization Documents

On June 12, 2008, the U.S. Citizenship and Immigration Services (“USCIS”) announced that beginning on June 30, 2008 will issue Employment Authorization Documents (“EAD”) valid for two years. The new two-year EAD will only be available for individuals who have filed to become a lawful permanent resident (“LPR”) using a Form I-485, Application to Register Permanent Residence or Adjust Status, and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (“8 C.F.R.”) but are unable to become an LPR because an immigrant visa number is not currently available. USCIS will also decide whether to renew an EAD for either a one or two year validity period based on the most recent Department of State Visa Bulletin.

Applicants who have an available immigrant visa number and who are filing for employment authorization under 8 C.F.R. Section 274.a.12(c)(9), USCIS will continue to grant EADs that are valid for one-year. USCIS may issue a two-year renewal EAD if the applicant’s immigrant visa availability date retrogresses (when actual demand for visa numbers exceeds forecasted supply) after the Form I-485 is filed. If an individual requests to replace an EAD that has not expired, USCIS will issue a replacement EAD that is valid through the same date as the previously issued EAD. However, if the previous EAD has expired, USCIS will process the request for a renewal EAD and determine the appropriate validity period based on the applicant’s priority date and the Department of State Visa Bulletin.

New Rule Proposes E-Verify for Certain Federal Contractors

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council ("Councils") are proposing to amend the Federal Acquisition Regulation to require certain contractors and subcontractors to use the U.S. Citizenship and Immigration Services’ ("USCIS") E-Verify system as the means of verifying that employees are eligible to work in the United States. Government agencies affected by the proposed are the Department of Defense (“DOD”), General Services Administration (“GSA”), and National Aeronautics and Space Administration (“NASA”). The proposed rule states: "This rule proposes to amend the Federal Acquisition Regulation (“FAR”) to require that certain contracts contain a clause requiring that the contractor and certain subcontractors utilize the E-Verify System to verify employment eligibility of all newly hired employees of the contractor or subcontractor and all employees directly engaged in the performance of work in the United States under those contracts." Stay tuned, this is just the beginning.

Federal Government Contractors Must "E-Verify" Employees' Eligibility To Work

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.