Hiring foreign professionals? The New H-1B Filing Season Opens April 1st

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelors degree for professional jobs each year.  The USCIS will close the current year’s H-1B filings when the 2012  cap numbers are exhausted.  April 1st , 2012 is the first date that H-1B petitions will be accepted by the USCIS for employer filing for employment that begins no earlier than  October 1, 2012. 
Charles M. Miller provides these tips to maximize your applicant’s chances for employment authorization:

1.       U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers.

2.       Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

3.       Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers.

4.       Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

5.       The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

6.       Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

AILA Midyear Conference Focuses on Worksite Enforcement as I-9 and E-Verify Issues Continue to Heat Up the Headlines

by Marcine Seid, Guest Blogger

AILA’s 2012 Midyear Conference traditionally brings together the leadership of the Immigration Bar to provide intensive focus on national issues that affect our clients. This year’s conference will analyze worksite enforcement practice issues and the surrounding politics that will increasingly affect US employers.

How Hot is the Worksite Enforcement Issue?

During the past few years, we have seen unprecedented enforcement and legislative activity relating to Form I-9 and E-Verify worksite compliance. Since fiscal year 2009, Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers, debarred 441 companies and individuals, and imposed more than $76 million in financial sanctions. Meanwhile, states and cities across the country have been mandating the use of E-Verify at the local level, sometimes implementing rules which go above and beyond federal I-9 requirements. The result has been a virtual patchwork of employment verification requirements which are difficult to track, let alone maintain.

Below are just a few of the hot topics which we’ll be discussing at the AILA Midyear conference

• Judiciary Marks Up Mandatory E-Verify Bill - Chairman Lamar Smith of the House Judiciary Committee has pushed his mandatory E-Verify bill through Committee markup. Individuals who start work will be subject to mandatory E-Verify processing and a potential final nonconfirmation without the ability to correct errors in the DHS/SSA databases before termination of employment. The bill also contains a provision that would make the misappropriation of a Social Security number a felony.

• Silent Raids Continue - In fiscal year 2011 ICE conducted 5 times as many I-9 audits than it did in fiscal year 2008. Josie Gonzalez will lead a panel examining problematic I-9 issues facing employers and will provide effective resolution strategies.

• ICE Carrot and Stick Approach - ICE is inviting “express” membership in the IMAGE program, with the possibility of an individual agreement that may allow the mitigation or waiver of even substantive I-9 errors if there is less than a 50% error rate after a voluntary Form I-9 inspection. At the same time, however, ICE is aggregating penalties against employers who are first time violators after issuance of a Notice of Inspection (NOI).

• The Employer Compliance Inspection Center (ECIC) – ICE has continued to grow its auditor workforce which in turn has lead to increased I-9 audits and worksite investigations of large employers across the nation.

• Pre-NOI Remediation as an Effective Compliance Strategy - ICE has made it abundantly clear that the agency will look favorably upon I-9 corrections made before the issuance of an NOI. Charles M. Miller will discuss how attorneys can successfully conduct an immigration compliance audit before ICE comes knocking at the door using innovative and detailed audit tools.

• The Burrito Effect – Case Studies of Chipotle, IFCO, and American Apparel at the Intersection of SEC and Immigration Law – Dan Siciliano of Stanford Law School will discuss a new kind of I-9 liability that has arisen from the increasing fiduciary, legal, and ethical oversight responsibilities of publicly traded companies.

• Constructive Knowledge in Today’s World – Kathleen Campbell Walker will lead a discussion of recent case law and policy developments which give new meaning to constructive knowledge and reckless disregard. The 2012 AILA Midyear Conference is a must-attend event for attorneys representing clients in today’s new worksite enforcement regime. Don’t miss this exciting and topical opportunity to interact with a host of experts on worksite enforcement, I-9, and E-Verify issues. This is your chance to learn and engage with the immigration leaders in our community as they share their invaluable knowledge on how to survive the worksite enforcement jungle.

Form I-9 Remediation in a Private Audit: The Bridge Over Troubled Waters

U.S. employers have had continuing troubles with the Form I-9 since its delayed roll out in September 1987.  Employers have used the I-9 to verify the identity and employment authorization of every person hired after November 6, 1986.  While Homeland Security deemphasized  civil enforcement of the IRCA employers sanctions laws in the years following 9-11, it swung the pendulum back to emphasize high profile criminal investigations beginning in 2006.  In 2009, however, ICE worksite enforcement investigations changed focus to administrative inspection of critical infrastructure employers, and in 2010 to America’s largest companies.

A decade later, the  Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) was passed to strengthen enforcement efforts, but to allow employers to correct deficient I-9s that were the products of innocent, but deficient recordkeeping.  On the one hand IIRAIRA featured an amendment that reduced the number of documents that employers could accept to eliminate fraud.  On the other hand, the bill contained a good-faith defense against technical or procedural Form I-9 paperwork violations for employers. This amendment allows employers ten days after agency notice to effect good-faith corrections avoiding the substantive violations penalties.  In 1997,  the INS brought out the Virtue Memorandum which ICE continues use as guidance to ICE agents and the public as to the cure of the technical and procedural violations that plagued employers.  

While the Virtue Memorandum remains viable agency policy, in October,  2011 ICE began to discuss with AILA’s Verification Committee another policy toward employers who, after conducting a private audit,  remediated  (cured or corrected)  I-9 errors in good faith,  prior to the time that the agency initiated an administrative inspection through a Notice of Inspection (NOI).   

This policy represents a potential departure from the agency’s previous interpretation of  the IIRAIRA good faith defense. The agency previously had taken the position  that substantive paperwork  failures could not be corrected. This would bring ICE policy in line with Department of Justice OCAHO administrative decisions, which attach weight to remediation measures for mitigation of damages, application of the general good faith defense and to begin the running of the statute of limitations for certain penalty provisions.

In our American Bar Association book Immigration Compliance Auditing for Lawyers, Marcine Seid, Chris Stowe and I,  provide a remediation analysis to be used by attorney auditors employed in a private immigration auditing.  The auditor recommends remediation for substantive and technical or procedural I-9 paperwork failures and knowingly hiring or continuing to employ unauthorized employee violations.  The external auditor additionally recommends remediation which extends to all potential violations under the Immigration and Naturalization Act. This remediation opportunity is necessary to mitigate potential penalties and to begin the running of the statute of limitations. The ABA book contains guidance for the remediation of substantive and technical paperwork violations, missing I-9s, as well as knowing hiring and continuing to employ violations.  This recognizes that the role of the private attorney auditor is broader than the ICE forensic auditor or special agent, looking to mitigation of damages and the running of the statute of limitations.

The ICE IMAGE program has also included the private audit as a necessary part of its new Express program, and has encouraged membership by mitigating or waiving potential penalties where the total percentage of violations is less than 50%. The combination of private audit remediation and this penalty amnesty makes for an attractive inducement.  We will keep you informed of our efforts to  seek  IMAGE agreements that  would allow the private audit described in the ABA book  to replace an ICE inspection as a condition of Express membership.   That would truly represent a bridge over troubled waters. 

copyright 2012 Charles M. Miller.  All rights reserved.

USCIS Document Matrix Useful I-9 Reference for Employers

The Citizenship Status/Document Matrix is a useful USCIS reference for employers during the I-9 verification process.  The Matrix contains an outline of the List A, B and C documents that are listed and accompany Form I-9.   It also provides valuable information as to the appropriate citizenship or immigration status for each document.

U.S. employers or recruiters for a fee have the duty to ensure that every newly-hired employee completes and signs section 1 of the Form I-9 on the first day of hire. The employer’s verification responsibilities include an examination of the employee’s documentation of List A or B and C documents of identity and employment eligibility, and the necessary completion of the employer's certification portion of the Form I-9 form within three days of hire. The employee hired for a period of less than three days must present the required List A or B and C documents on the first day of employment. USCIS 2011 Handbook for Employers at 5.

The employee must check off one of the four employee status boxes in section 1.

·        Citizen

·        National

·        Permanent resident, or

·        Alien authorized to work until a specified date

Federal  antidiscrimination law prohibits employers from requesting specific identity or authorization documents from applicants during the I-9 verfication process.  Nevertheless, the employer cannot ignore the situation where the documentation produced from the employee is inconsistent with the marked status block.  If the employee is not able to produce a list A, or a list B and C document, within the three-day permitted period, the employee must be terminated.It should be noted that the employer’s failure to review and verify a proper list A document or a list B and a list C document is a substantive error under the Virtue Memorandum and the ICE 2008 Guide.

OCAHO Reduces Paperwork Penalties for Small Employer

In U.S. v. Teelah Inc., OCAHO Case No. 09A00026 (Dec. 22, 2010), ICE filed a two-count complaint alleging that a Subway franchisee had I-9 substantive section verification  paperwork violations for 31 persons as well as  failure to prepare or present I-9 forms paperwork violations for another 85 individuals. Judge Ellen K. Thomas found no genuine of material fact with regard to liability, and her ruling as regard to the civil money penalty assessment is of significance.

The Immigration Reform and Control Act (“IRCA”) and the implementing regulation at8 C.F.R. § 274a.10 (b)(2) set the framework for determining civil money penalties for paperworkviolations.  Due to the civil monetary penalties inflation adjustment the current minimum penalty for paperwork violations are a minimum of $110 and the maximum penalty at $1110. 8 C.F.R. § 274a.10a9(b)(2). The statute provides five factors that must be given due consideration in making a determination regarding the amount of the penalty, as follows: 1) The size of the business of the employer being charged; 2) The good faith of the employer; 3) The seriousness of the violation; 4) Whether or not the individual was an authorized alien; 5) the history of previous violations.

The ICE  Forensic Auditor established the agency’s  base fine by first ascertaining that the percentage of employees for whom there were violations was 100% so that the base penalty for each violation was $935.00. He then considered the five statutory factors and concluded that two of those factors warranted aggravating the penalties by 5% each, or a 10% enhancement. He treated the other three factors as neutral so the government's final figure for each violation was $1,028.50. While the judge mentioned the ICE penalty methodology, she did not adopt it.

Judge Thomas did  not give equal weight to each statutory factor, or limit her assessment to the use of only the five specified factors in assessing the civil monetary penalties. New China Buffet Restaurant, 10 OCAHO 1133 (2010),  Hernandez, 8 OCAHO 1043 (2000).

While the judge found that the violations were serious and that the employer lacked good faith, nevertheless she found that Teelah is a small employer, had no unauthorized workers and no previous violations.  She found that three of the statutory factors pointed to mitigation and two to aggravation. Judge Thomas further found that the amount ICE sought, $119,306.00, was disproportionate to the company's size and resources,  that there was a depressed economy and that the penalties should be reduced to fall in the lower end of the permissible range.

For count I, Judge Thomas penalized Teelah $250 for 24 verification paperwork violations and $300 for 7 backdated verification paperwork violations, for a total of $6900.  The penalty for the violations in Count II was assessed at $250 for each of the 85 named individuals, or $21,250. For both counts, the total was $28,150.00, or more than a 75% reduction from the ICE complaint amount.

Video Archive-Stanford Law School Worksite Immigration Compliance Symposium

The Homeland Security Compliance Council has provided the complete seven video archive for Stanford Law School’s first annual Worksite Immigration Compliance Symposium, a one-day event which focused on corporate immigration compliance. Featuring experts from the Department of Homeland Security, the Department of Justice, lawyers from private practice and academia, the symposium videos cover recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field. The keynote speech was delivered by Paul W. Virtue, former INS General Counsel, and author of the 1997 Virtue Memorandum, the policy which still implements the procedures of the IIRAIRA good faith paperwork violation defense. 

The video archive may be accessed after free registration, selection of a user name and password.

Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany and the lead prosecutor in the IFCO case,  discussed the corporate charging factors for employers with criminal I-9 violations. In particular, the prosecutor must weigh all of the factors normally considered in the sound exercise of prosecutorial judgment: the sufficiency of the evidence; the likelihood of success at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the adequacy of noncriminal approaches. Prosecutors will also consider the nature and seriousness of the crime, pervasiveness, company history, existence of compliance programs, remedial actions, collateral consequences, and the adequacy of civil or regulatory remedies.

Paul Zulkie, Eric S. Bord and AUSA Tina E. Sciochetti discussed ICE and U.S. Attorney Negotiations

 

Take an I-9 Auditing IQ Test

 Charles M. Miller, co-author of the ABA’s new best-selling book Immigration Compliance Auditing for Lawyers, provides this I-9 Auditing IQ test for our readers. There are 10 questions in total, which address various Form I-9 rules, auditing principles, and interesting facts. Please note that you only get one shot at a particular question.

Read full story in the I-9 and E-Verify Blog...