Thursday, December 23, 2010

E-Verify Connection- the new USCIS newsletter

The United States Citizenship and Immigration Services (USCIS) has released a new E-Verify newsletter, the “E-Verify Connection” which we provide in our Publications section of our Website.

Thursday, December 2, 2010

Homeland Security Seizes Business Assets for Immigration Hiring Violations

How an employer fills out a one page I-9 form could result in Homeland Security's seizure of a business. Small business owners and large corporations now have reason to dread the Immigration and Customs Enforcement (ICE) ramp up of its I-9 administrative inspections which come with administrative subpoenas that ask for payroll and other government agency records.

While employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, on Form I-9, they also have the duty to refuse to employ a person whose authorization and/or identity documents are unacceptable.

Informer tips and related worksite investigations throughout the United States have provided ICE with information regarding questionable employment practices of thousands of employers. In addition to administrative civil fines, targeted employers also faced criminal charges with potential seizure and forfeiture of company and personal assets. Companies are in federal courts across the United States facing felony criminal charges with potential prison terms, fines and forfeiture of assets.

Many criminal acts covered under the U.S. Code are subject to seizure and forfeiture of all property which has been or is currently being used in the commission of the violation. This includes harboring of unauthorized aliens, money laundering, visa and document fraud, and the knowing hire of 10 or more unauthorized aliens. The property that is subject to seizure and forfeiture includes boats, vehicles, aircraft, bank accounts and other traceable assets. In one case, an employer's Harley-Davidson motorcycle was forfeited.

On April 15, 2010, an indictment was filed against The French Gourmet, Inc., its owner and manager, for making and using false attestations, conspiracy, and a number of other charges for employment violations. The complaint alleged that The French Gourmet’s owner and manager, in conspiracy, knew that the employees were unauthorized to work in the U.S, and falsely attested on the I-9 that they had examined the documents presented, and the documents appeared to be genuine and that the employees were eligible to work in the U.S. The French Gourmet, Inc. allegedly received “no-match” letters from the Social Security Administration informing the employer that the social security numbers used on the I-9 certified by the employer for the employees were not valid.

The New York Times reported that the restaurant-bakery’s owner, Michel Malecot, “was indicted by a federal grand jury on charges of illegally hiring 12 undocumented immigrants and, in what prosecutors portray as a brazen deception, continuing to employ them after learning that they were in the country illegally. He pleaded not guilty. Now, if convicted, he faces the possibility of forfeiture of the restaurant building, along with an adjacent rental property, Froggy’s Bar. Legal experts say it would be an exceptionally stiff punishment, but one that could be a sign of things to come for an industry that is one of the nation’s largest employers of immigrants.”

Saturday, November 20, 2010

EB-l Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals Part 3

In Part 2 we saw that beginning in 2008, USCIS Service Centers started to pre-adjudicate cases and request visa numbers, requesting more employment-based visa numbers. This may be attributed to the fact that some registrants in the EB-2 and EB-3 categories were single when their petitions were filed, but they are now married and have children when their priority dates are becoming current. Moreover, the employers of EB-3 beneficiaries from India and China have been filing upgraded cases under the EB-2 category. This increases the demand for visa numbers allocated to the EB-2 category for Indian and Chinese nationals.

Charles Oppenheim is the Chief of the Immigrant Visa Control and Reporting Division at Department of State’s Visa Office. The Immigrant Control and Reporting Division's main responsibility is the administration of the Visa Bulletin which contains a monthly report as to the cutoff dates for the numerical limitations on immigrants, subdivided by preference category and country, which are set by the Immigration and Nationality Act. Every month the division determines the number of visas, to be allocated to each visa category, and to each country on a worldwide basis.

Mr. Oppenheim was a panelist at the American Immigration Lawyers Association’s California Conference in Monterey, California on November 12, 2010. Mr. Oppenheim told the attendees that it is unlikely that there will be any cut-off dates in the Employment First preference (currently open) during the coming months and that cut-off dates will continue to apply to the China and India Second preference categories due to heavy demand.

Mr. Oppenheim projected that based on current demand level the likely movement each month during the coming months are as follows (with the December 2010 priority date in parenthesis) : For China Employment Second (June 6, 2008): none to two weeks; For India Employment Second: no movement. Mr. Oppenheim projected that for Employment Third Worldwide the likely movement will three to six weeks; for China (December 8, 2003): one to three weeks; for India (January 22, 2002): none to two weeks; For the Philippines (February 22, 2005): three to six weeks. Based on these projections for Chinese and Indian Employment-based Second Preference, Employment-based First Preference’s immediate availability is important.

The first preference category comprises those foreign workers of extraordinary ability in their field of expertise, outstanding professors and researchers, and multinational executives and managers. Those qualifying for the employment-based one (EB-I) category can petition for the foreign worker without first obtaining labor certification from the U.S. Department of Labor, which requires an arduous recruitment process to
test the U.S. labor market.

Extraordinary Ability Aliens

The employment-based one (EB-1) category for extraordinary ability aliens is reserved for those individuals that have risen to the very top of their field of endeavor. These are the foreign workers that would be considered the "cream of the crop."In order to qualify for this category, the foreign worker must show sustained national or international acclaim and show his or her achievements have recognized in the science, arts, education, business, or athletics.

The regulations allow qualification for the EB-1 extraordinary ability category to be shown by providing evidence of a single internationally-recognized achievement. For example, major international awards such as the Nobel Prize, Pulitzer Prize, or an Olympic medal would be considered major international achievements, and would qualify an individual for the EB-1 extraordinary ability category. No other documentation of the individual's ability in their area of achievement is necessary.

If three lesser achievements can be demonstrated from a list of ten
specific achievement categories, one may still qualify in the extraordinary
ability category. The ten lesser achievements are as follows:

(1) Receipt of a lesser national or internationally recognized prize
or award for excellence in the field of endeavor.

(2) Membership in an association in the field of endeavor that
would require some outstanding achievement of its members,
who are recognized as experts in that field.

(3) Published material in professional or trade publications or
major media that relates to the work of the foreign worker in
the field of endeavor.

(4) Participation as a judge of the work of others in the same or
similar field of expertise. The foreign worker can be an
individual judge or one of a panel of judges.

(5) An original contribution shown of major significance in the
scientific, scholarly, artistic, athletic, or business-related

(6) Authorship of scholarly articles published in a major trade
publication or other major media.

(7) Display of work at artistic exhibitions or showcases.

(8) Performance in a leading or critical role for organizations or
establishments that have a distinguished reputation.

(9) Receipt of a high salary or other significant remuneration for
service in relation to others in the field.

(10) Demonstration of commercial success in the performing arts
as evidenced by box office receipts or records cassette,.
compact disk or video sales.

Those of extraordinary ability may self-petition for permanent resident status as long as the alien is coming to the United States to continue work in the area of expertise. The alien does not have to rely on an offer of employment to apply in the EB-1 category under the extraordinary ability subcategory. However, the alien must submit letters from prospective employers, contracts to perform work in the field of expertise, statements from the foreign worker, or other documentation showing a clear intent to pursue the work in the area for which classification is sought.

Friday, October 22, 2010

EB-l Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals Part 2

By Charles M. Miller

In Part I. The USCIS Ombudsman 2010 Report gave discouraging news to Indian nationals who were registered as EB-3 professionals or skilled workers predicting "that many thousands of green card applicants of Indian nationality will be waiting years, if not decades. for the approval of their green card cases. " Attorney Charles M Miller forecasted that the same fate was shared by professionals who are Chinese nationals. In Part 2, we explore the nature of the EB-2 and EB-3 backlogs.

The plight of Indian and Chinese-born immigrant registrants is highlighted by remarks made by Charles Oppenheim, Chief of Immigrant Visa Control and Reporting Division at the U.S. Department of State (DOS). His office produces the annual Report of the Visa Office,issues the Visa Bulletin and updates, collects information and statistics from all consular posts for the Visa Office. Mr. Oppenheim was a guest speaker at a recent meeting of the American Immigration Lawyers Associations District of Columbia Chapter meeting. AILA InfoNet Doc.No. 10100165. (Posted 10/01/10).

Mr. Oppenheim described the demand for employment-based visa numbers. The USCIS processes 90% of employment-based immigration cases through adjustment of status.
Beginning in 2008, USCIS Service Centers started to pre-adjudicate cases and request visa numbers, requesting more employment-based visa numbers. This may be attributed to the fact that some registrants in the EB-2 and EB-3 categories were single when their petitions were filed, but they are now married and have children when their priority dates are becoming current. On the average, each immigrant visa case requires 2.5 visa numbers, while in the past the demand was typically one immigrant for each employment-based petition.

Moreover, the employers of EB-3 beneficiaries from India and China have been filing upgraded cases under the EB-2 category. This increases the demand for visa numbers allocated to the EB-2 category for Indian and Chinese nationals.

For these reasons Mr. Oppenheim forecasted that the EB-2 and EB-3 China categories would move slowly over the balance of 2010, e.g. by one or two weeks at a time for the next few Visa Bulletins. He projected that EB-2 India is expected to remain unchanged or to move very slowly forward (by a week or so). This is mainly a result of EB-3 Indian applicants (there are approximately 60,000 pending cases) transferring their priority dates into the EB-2 category and are thus taking visa numbers. Mr. Oppenheim thought that EB-3, India would similarly move very slowly over the next few Visa Bulletins - perhaps by one or two weeks at a time.

In contrast, EB-I China/India cases are not currently subject to the per country quota, because of the cross-over in that category of otherwise unused numbers from other countries. This has allowed 5,000- 6000 visa numbers to be allocated to India and China EB-l when approximately 2,800 would be the normal limit. The remaining unused EB-l numbers "fall down" into the EB-2 categories. That has allowed approximately 20,000 EB-2 numbers for India and nearly 6,500 for China. The availability of these numbers "fall across" strictly in priority date order, not by

Tuesday, October 5, 2010

Is Employer Certification an Inevitable Component of Comprehensive Immigration Reform?

There any number of variations of potential future legislation that might be called “Comprehensive Immigration Reform.” However there is one certainty in every one of these pieces of potential legislation—increased compliance requirements for employers in regards to immigration-related laws. Now it seems that the idea of a CEO certification of immigration law compliance has found favor on both sides of the aisle in the Senate.

As part of the failed immigration reform compromise efforts in 2007, Senator Jeff Sessions, an advocate for strong Homeland Security worksite enforcement measures, introduced S. 1348, which would have amended INA Section 274A to provide for the Homeland Security Secretary to require certification if there is "reasonable cause" to believe that an employer was in noncompliance with the employment verification provisions of the Immigration and Nationality Act. The Sessions Amendment provided for auditing methodology and recordkeeping standards.

Now the Democrats have followed suit. Senators Menendez and Leahy introduced the Comprehensive Immigration Reform Act of 2010 (S. 3932) with almost identical provisions to the Sessions Amendment, as follows:

Comprehensive Immigration Reform Act of 2010

TITLE III, Worksite Enforcement;

Unlawful Employment of Aliens

Section 301(e), Unlawful Employment of Aliens;

If the Secretary has reasonable cause to believe that an
employer has failed to comply with this section, the
Secretary is authorized, at any time, to require that
the employer certify that it is in compliance with this
section, or has instituted a program to come into compliance.
Within 60 days of receiving a notice from the Sec-
retary requiring such a certification, the employer's
chief executive officer or similar official with respon-
sibility for, and authority to bind the company on,
all hiring and immigration compliance notices shall
certify under penalty of perjury that the employer is
in compliance with the requirements of subsections
(c)(1) through (c)(4), pertaining to document
verification requirements, and with subsection (d),
pertaining to the System (once that system is imple-
mented with respect to that employer' according to
the requirements of subsection (d)(1)), and with any
additional requirements that the Secretary may pro-
mulgate by regulation pursuant to subsections (c) or
(d) or that the employer has instituted a program to
come into compliance with these requirements. At
the request of the employer, the Secretary may ex-
tend the 60-day deadline for good cause. The Sec-
retary is authorized to publish in the Federal Reg-
ister standards or methods for such certification, re-
quire specific recordkeeping practices with respect to
such certifications, and audit the records thereof at
any time, this authority shall not be construed to
diminish or qualify any other penalty provided by
this section.

Attorney Chuck Kuck and I have recently concluded that such measures are inevitable, in our article, “The Case for the Inevitable: National Compliance Auditing Standards”, as follows:

"The time has come, not only for national model standards for immigration compliance auditing, but also for the use of competent attorney auditors, who follow generally-accepted methodology and principles The active use of a compliance program including immigration compliance auditing conducted by external attorney auditors, can also provide Sarbanes-Oxley immigration law compliance for corporate management. The authors recommend a federal requirement for an annual employer immigration compliance certification requirement, supported by attorney auditing, according to generally-accepted national standards. It is our hope that such an immigration compliance auditing reform proposal will set the groundwork for comprehensive immigration reform."

The advantage to such a federal employer certification program is that the largest companies in America would need to adopt compliance programs and administer them in an efficient manner. Such an atmosphere of compliance in America's top companies would allow the DHS Worksite enforcement efforts to focus on companies' annual reporting based on the reporting of independent external attorney auditors rather than the current policy of IRCA inspections which rely on document-by-document auditing.

Sunday, September 26, 2010

Foresight and Forewarning: EB-1 Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals

Shortly after the Immigration Act of 1990 (IMMACT 90) was enacted into law on November, 29, 1990, Peter Larrabee and I wrote an article about the immigration requirements for highly educated and accomplished persons. In many respects, IMMACT 90 was ahead of its time, as it provided for visa categories, and most importantly, visa numbers for the best and the brightest persons from a variety of disciplines from around the world. Employment-based first preference or “Priority Workers” were afforded first position to acquire 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Just as importantly, those persons who qualified as extraordinary ability were also entitled to the first of their nation’s per country’s visa numbers amounting to 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.

I recall that it was apparent to us in 1990 that based on the legacy INS’ adjudication of the previous exacting adjudicatory standards for Department of Labor’s Schedule A Group II for persons of exceptional ability in the sciences, arts and performing arts, that the employment-based first preference numbers would likely never be exhausted in a particular fiscal year for the IMMACT 90 EB-1 category. Two decades later, it seems we were correct in our assessment and it remains the one bright spot in an increasingly dire situation for highly-educated Chinese and Indian professionals working in the U.S.

The USCIS Ombudsman issued a pessimistic prediction for aspiring US immigrants who are natives of India in the 2009 Annual Report:

“Absent legislation providing for additional visa numbers, the Ombudsman estimates that some individuals under the “India” category in the Visa Bulletin now may wait at least 10 years to complete immigration processing and obtain a green card. This estimate assumes maximum annual preference category and per country usage. If these projections are correct, affected individuals will spend many years of their working lives as applicants for green cards, i.e., as neither temporary workers nor lawful permanent residents.”

Id. at 16

In the 2010 Ombudsman Report there was more bad news for EB-3 Indian professionals:

“Finally, considering the data contained in the December 11, 2009 I-485 Inventory Report, the Ombudsman notes that out of 141,019 EB-3 green card cases queued-up worldwide, approximately 43 percent are chargeable to India, and 64 percent of the cases with priority dates before 2004 similarly are chargeable to India. Without attempting to predict future EB-3 wait times, based on the high percentage of applicants from India in queue, the data suggest that many thousands of green card applicants of Indian nationality will be waiting years, if not decades, for the approval of their green card cases.”

Unfortunately, these dismal predictions also ring true for Chinese professionals.

USCIS Forewarning

The USCIS has taken steps to publicize its policy in the adjudication of extraordinary ability I-140 petitions. With its publication of its Interim Policy Memo “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” (August 18, 2010) and the proposed publication of an EB-1 request for evidence form, it is clear that EB-1 policy will be a hot-button USCIS issue, which rarely bodes well for applicants.

Nevertheless, EB-1 extraordinary ability petitions are being approved. In the last reported year, the CIS approved 16,806 EB-1 petitions nationwide allowing for those persons to immigrate an additional 24,118 dependents. By comparison, the less elevated advanced degree professional/exceptional ability EB-2 classification saw 45,552 total immigrants under its authority, despite similar numerical and per country limitations. The crucial difference: First preference took first.

This is the first of a series of blogs on the Extraordinary Ability EB-1 Category issues.

Friday, September 17, 2010

Miller Law Offices a Top Tier Immigration Law Firm in U.S. News and World Report's 2010 Best Law Firm Rankings

The Miller Law Offices was ranked a First-Tier Immigration Practice in Metropolitan Los Angeles in the 2010 edition of Best Law Firms in U.S. News and World Report. The rankings are based on the results of a survey of over 100,000 lawyers, clients, and businessmen across the United States.

Monday, July 26, 2010

Electronic I-9 Final Rule Allows Employer Flexibility

USCIS published a final rule (75 Fed. Reg. 42575 (July 22, 2010)) which amended 8 C.F.R. §274a.2 to allow employers who choose to use an electronic I-9 system flexibility in the following:

• Employers may switch to an electronic I-9 system without converting their retained paper I-9 forms to a digital storage data. The rule expressly provides that the employer may use paper, electronic systems, or a combination of paper and electronic systems;

• Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;

•Employers are allowed to index in such a manner that permits the identification and retrieval of documents and records, but are not required to search by any data element.

• Employers need not retain audit trails of each time a Form I–9 is electronically viewed, but only when the Form I–9 is created, completed, updated, modified, altered, or corrected; and

• Employers may provide or transmit a confirmation of a Form I–9 transaction, but are not required to do so unless the employee requests a copy.

Thursday, July 22, 2010

Administration Increases Criminal Prosecutions, Border Enforcement

Similar to the immigration enforcement that preceded the introduction of the 2007 comprehensive immigration reform efforts in Congress, the Obama Administration enforcement statistics have reached the record levels of the Bush administration. The Department of Homeland Security's enforcement statistics show that ICE prosecutions are the highest level since that agency was created in 2005 according to Syracuse University's TRAC office.

On August 1st, National Guard troops will be deployed on the Mexican border, in Arizona, Texas, California, and New Mexico in an effort announced by President Obama in May.

The New York Times reported that during the past year, Immigration and Customs Enforcement has conducted audits of employee files at more than 2,900 companies. The agency has levied a record $3 million in civil fines in 2010.

The enforcement efforts may be attributed to the Obama administration's litigation with Arizona to enjoin its state enforcement legislation and the speculation that there will be a lame duck Congressional immigration reform bill this Winter.

Thursday, July 15, 2010

USCIS "Thursday Rule" Provides Employers Extra Day to Complete Verification

In June, 2010, USCIS provided clarified guidance to E-Verify member employers reinterpreting the three-day rule for creating a timely E-Verify case in that program’s system, as follows: “An E-Verify case is considered late if you create it later than the third business day after the employee first started work for pay.” In effect, the June 2010 E-Verify guidance allows an additional business day for employer completion of the Section 2 verification and attestation. USCIS, “Three-Day Rule”, found online at (last updated June 16, 2010).

The USCIS advises employers that this policy affects E-Verify Case Creation, and may “overlap” with I-9 policy previously provided to employers in the Handbook for Employers, which called upon employers to : “Review the employee’s document(s) and fully complete Section 2 of Form I-9 within 3 business days of the first day of work.” Handbook for Employers at 5.

The June 2010 “Thursday Rule” has been explained by USCIS as follows: “ If the employee starts work for pay on Monday, the third business day after the employee started work for pay is Thursday (assuming all days were business days for the employer). The first day the employee starts work for pay is not included in the three business day calculation.” USCIS, “What's the Hire Date for E-Verify” found online at (last updated June 30, 2010).

Wednesday, July 7, 2010

ICE 5-year Plan Includes Hiring Additional Auditors

The Immigration and Customs Enforcement(ICE)5-year strategic plan for FY 2010-14, details the prospective strategic policy regarding its worksite enforcement program. The 5- year plan reveals that ICE is strengthening its civil audit program by hiring additional auditors and centralizing certain auditing functions.

Emphasizing the ICE IMAGE and E-Verify programs, ICE intends to hold U.S. employers accountable for their hiring practices by creating a “Culture of Employer Compliance” using:
“(1) aggressive criminal and civil enforcement against those employers who knowingly violate the law; and (2) continued implementation of programs, such as E-Verify and ICE’s IMAGE program, to help employers comply. Criminal investigations will increasingly focus on employers who abuse and exploit workers or otherwise engage in egregious conduct.”

Thursday, June 10, 2010

Politico: Democrats Talk Tough on Immigration

From Politico: "Long pilloried for being soft on illegal immigration, top Democratic officials have concluded there’s only one way they can hope to pass a comprehensive immigration bill: Talk more like Republicans."

Friday, June 4, 2010

Certain Nonimmigrant Visa Application Fees Increased

A Department of State Interim Final Rule, published on May 20, 2010, increased the following nonimmigrant visa application fees:

Most nonimmigrant visas and adult Border Crossing Cards:$140

Petition-based Nonimmigrant Visa applications (H,L,O,P,Q,R): $150

K category: $350

E category: $390

Friday, May 21, 2010

USCIS provides TPS Guidance to Employers and Employees

The CIS has provided both employers and TPS beneficiary employees with guidance on the treatment of expired EADs that have been automatically extended by Federal Register notice. “Documentation Employers May Accept and Temporary Protected Status Beneficiaries may present as Evidence of Employment Eligibility.”

Temporary Protected Status (TPS) programs afford a designated group of persons a period of temporary legal status, usually called “voluntary departure,” with the ability to obtain employment authorization, typically for humanitarian reasons. The TPS recipient may present an Employment Authorization Document (EAD) (Form I-766) that is expired on its face. That EAD will have been automatically extended by a Federal Register notice which describes which EADs have been automatically extended.

TPS recipients may also present the employer with a copy of the applicable Federal Register notice providing other details including the expiration date of the automatic extension. The automatically extended EAD is a List A document, with an expiration date which requires reverification.

For I-9 purposes, employers are provided with instructions for categorical identification of TPS EADs:

"1. The notation “A-12” or “C-19” appears on the face of the EAD under “Category.”
2. The expiration date of the most recent TPS extension period on the face of the card. This date will appear in the Federal Register notice announcing the auto-extension of EADs and may also be found at"

Employers are provided with the following Section 2 I-9 guidance:

"Employers should enter the document name, number, and expiration date in Section 2 under List A, noting the end of the auto-extension period. You may not request that an employee provide proof that he or she is a national of a country that has been designated for TPS.

When the automatic extension of the EAD expires, you must reverify the employee’s employment authorization. The employee may choose to present an unexpired EAD with an updated expiration date, or any other document from List A or C of Form I-9 evidencing that he or she continues to be authorized to work in the United States. You should enter the document name, number and expiration date in Section 3 of the Form I-9.

In addition to completing the Form I-9 process described above, employers that participate in E-Verify may also confirm the employment authorization of the TPS beneficiary by submitting the required data from the Form I-9 to E-Verify. However, the employer may only check the employment authorization of new hires through E-Verify. If the TPS beneficiary is a current employee, the employer may not use E-Verify to confirm employment authorization and should complete only the reverification required in Section 3 of the Form I-9."

Significantly, employees who are TPS beneficiaries are provided with parallel guidance for presentation of the automatically-extended EAD with a past expiration date, and reverification instruction. Moreover, the CIS provided separate OSC employer and employee hotline numbers and web addresses for information and for anti-discriminatory employee reports.

Tuesday, May 11, 2010

Office of Special Counsel Issues Refugee and Asylee Right to Work Flyer

The Office of Special Counsel for Immigration-Related Unfair Employment Practices has released a flyer entitled "Refugees and Asylees Have the Right to Work".

The flyer provides both employers and employees with key information that protects the rights of refugees and asylees in the employment process. One key piece of information that the flyer interprets the Refugee Receipt Rule, which provides that Form I-94 or I-94A containing an unexpired refugee admission stamp is considered a List A document. The Rule requires that the employee present within 90 days of hire, either an unexpired EAD (Form I-766)OR a List B document AND an unrestricted Social Security account number card.

The new flyer importantly informs the public that the Refugee Receipt Rule does not apply to asylees, persons who meet the definition of refugee who have been granted asylum status inside the U.S. The I-94 indicating this asylum grant status is considered to be a List C document, without an expiration date. Moreover, the Section I employee employment status attestation for an asylee or a refugee should not have an expiration date, because their status does not expire.

Wednesday, April 28, 2010

Adverse Reaction to Arizona Identification Law Fails to Jumpstart Congressional Immigration Reform

While Democratic lawmakers pointed to the recent passage of the Arizona identification law as an indicator that Congressional reform is necessary to reaffirm the preemptive role of the federal government in immigration law, Democrats lost the support of their sole Republican sponsor for immigration reform in the Senate, Lindsey Graham (R,South Carolina).

Senator Graham predicted that the effort would not have a chance for success until 2012. Graham’s announcement was preceded by his statement that he would not support immigration reform unless climate legislation moved first. Citing Graham’s announcement as a major factor, the Washington Post reported on April 28th that Senate Majority Leader Harry M. Reid (D Nevada)has backed off from his plans to schedule votes on comprehensive immigration reform legislation this session.

President Obama and key members of his cabinet have criticized the Arizona identification law as unfair, unrealistic, and possibly unconstitutional. While testifying before the Senate Judiciary Committee, DHS Secretary Napolitano said that the Department of Homeland Security and the Department of Justice are both reviewing the law and whether states and municipalities have the "inherent authority" to enforce federal criminal and civil immigration laws as Arizona has done.

Attorney General Eric Holder has expressed concern that the law could be subject to abuse and create a wedge between "communities that law enforcement is supposed to serve and those of us in law enforcement," He also said that a number of options are under consideration including the possibility of a court challenge.

Monday, April 12, 2010

New Immigration Law's Chances: Charles Miller Takes Legalization's Political Temperature

Robert Reich, Secretary of Labor in the Clinton Administration, and Professor of Economics at Berkeley, has written favorably about the potential economic impact of immigration reform in his 4-11-2010 Christian Science Monitor blog, “Immigration: Could it solve Social Security, Medicare woes?” Reich finds it important to the Baby Boomer generation of retirees that the Medicare and Social Security entitlement programs are funded by the taxes paid by younger immigrant workers.

Senator Jon Kyl, speaking on ABC News' This Week equivocated on whether Republicans would filibuster new immigration reform legislation in the Senate. Host Jake Tapper asked Kyl, "You helped lead the cause of immigration reform in 2007. Senate Majority Leader Harry Reid said that he is going to bring up immigration reform. You said the other day in Yuma, Ariz., that Republicans will use the opportunity to filibuster. Are you going to help with the filibuster of immigration reform?"Kyl responded , "I don't think I said that, Jake, but what I did say is that the the conditions for immigration reform no longer exist.” Kyl, the junior Arizona Senator supported the immigration reform efforts of senior Senator John McCain in 2007.

Senate Majority Leader Harry Reid, fighting for his political life in this year’s November election told an enthusiastic crowd of 6,000 in Las Vegas on Saturday, April 10, 2010 that he had 56 Democratic votes for new immigration law reform legislation and was determined to take it to a vote this year.

Senate Majority Whip Dick Durbin, vowed to move on immigration reform and to try to recruit Senate Republicans to support reform legislation. He compared this effort to the dedication that helped pass healthcare legislation and called for “that same determination and that same commitment to pass comprehensive immigration reform this year.”

Thursday, April 8, 2010

Kuck and Miller Speak on Immigration Enforcement at PLI Immigration Institute

On April 23, 2010 attorneys Charles M. Miller and Charles H. Kuck will speak at the PLI Immigration and Naturalization Institute in New York City. Miller is the Chairman of the AILA Compliance Auditing Standards Taskforce and Kuck is the immediate past AILA President. The Institute will be a live seminar in New York and a national Webcast including the following topics:

* Enforcement as part of comprehensive immigration reform

* The Obama Administration's Worksite Enforcement Policy: Criminal Worksite Investigation Cases and the Return to Administrative Sanctions

* E-Verify, FAR and IMAGE Developments

* The 2009 ICE Penalty Guidelines

* The 2010 ICE Policy Reaffirming the Virtue Memorandum and Proposed Rule Implementing the IIRAIRA Good Faith Paperwork Violation Defense and the ICE Omnibus Statute of Limitations policy

* Immigration Compliance Auditing and Current ICE Policy

* The Future of Immigration Enforcement

Call PLI for more information at (800) 260-4754.

Wednesday, March 17, 2010

Practice Alert: ICE Policy Regarding the Good Faith Paperwork Violation Defense and the Statute of Limitations

On February 23, 2010, the Enforcement Law Division of the ICE Office of the Principal Legal Advisor (OPLA) and with the Worksite Division of ICE’s Office of Investigations provided representatives from the American Immigration Lawyers Association guidance concerning the IIRAIRA good faith paperwork violation defense and the applicability of the Federal Omnibus five-year statute of limitations provision in federal employer sanctions cases.

ICE officials confirmed that the agency continues to follow the IIRAIRA good faith defense policy set forth in 1997 Virtue Memorandum, the 1998 proposed regulations and the ALJ holdings in the WSC Plumbing case. ICE acknowledged that, consistent with the leading OCAHO case, the Federal Omnibus five-year statute of limitations provision of 28 USC § 2462 applied to 8 USC § 1324 (a) proceedings.

IIRAIRA amended the INA to allow a good faith defense when the employer is found to have made technical or procedural errors in preparing or completing Form I-9. The amendment provides for an exception to the good faith defense where the Service (or another enforcement agency) has explained to the employer the basis for the failure, and the employer has been provided a period of not less than 10 business days (beginning after the date of the explanation) within which to correct the failure, and the employer has not voluntarily corrected the failure during that 10 day period. The defense is not available to an employer who is or has engaged in a pattern or practice of sanctions violations.

The INS first implemented the March 6, 1997 policy memorandum from Paul Virtue, then Acting Commissioner for Programs, for field guidance concerning the good faith defense. The Virtue Memorandum distinguished between "technical or procedural" failures in the Form I-9 verification system occurring after September 30, 1996 that could be corrected. The Virtue Memorandum also listed the substantive verification failures that could not be cured by the statutory defense. The Virtue Memorandum’s policy interpretation of the good faith defense was continually approvingly cited in OCAHO decisions. In the WSC Plumbing case, it was held that the agency was bound by the ten day notice requirement before it could cite technical violations in a complaint. The judge approvingly cited the policy contained in the Virtue Memorandum for its interpretation of the good faith defense and the ten day notice requirement.

In 1998, the Legacy INS published a proposed rule on this subject which adopted most of the policy in the Virtue Memorandum. While proposed rule did not become the subject of final agency rulemaking, ICE indicated in its meeting with AILA that the proposed rule was also continuing valid agency policy.

Thursday, March 4, 2010

Has your company been ICED?

U.S. Immigration and Customs Enforcement (ICE) has announced that it is issuing an additional 180 Notices of Inspection to employers in Louisiana, Mississippi, Alabama, Arkansas and Tennessee. This brings the number of administrative audits that ICE has announced in the last 8 months to 1832. On July 1, 2009, John Morton, the Department of Homeland Security Assistant Secretary for U.S. Immigration and Customs Enforcement (ICE) announced a policy change, issuing notices of inspection to 652 employers across the country to initiate administrative I-9 audits. On November 19, 2009 DHS announced that it had issued an additional 1000 notices of inspection to employers in critical infrastructure industries.

These announcements marked a shift in enforcement emphasis from the Bush administration’s worksite enforcement policy which emphasized criminal immigration investigations of employers using criminal search warrants, without advance notice.

The Forms 1-9 must be available for an inspection at the location where the government officers request to see them on three days' notice.

It is wise for an employer to comply with an ICE request to inspect the Form 1-9. If the employer does not comply with the request to present the Form 1-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Form 1-9 will be considered a violation of the retention requirements by the government.

ICE may also assert general powers to obtain personnel records that pertain to the hiring and employment of an individual employee. In the absence of the employer's willingness to produce the personnel records, ICE may issue an administrative subpoena to obtain these materials.

ICE investigations determine whether employers have violated the prohibitions against knowingly employing unauthorized aliens and Form 1-9 paperwork violations. Before ICE can issue a Notice of Intent to Fine for technical or procedural I-9 errors the employer must be provided with a ten day notice and the opportunity to correct these deficiencies within that period.

Depending on the alleged violations, an ICE warning or a Notice of Intent to Fine (NIF) may result. In cases when a NIF is issued, employers may request a hearing within 30 days of its service hefore an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO). Hearing requests must be in writing and filed with the ICE office designated in the NIF. If a hearing is not requested within the 30-day period, the ICE will issue a final order to cease and desist and to pay a civil money penalty.

Thursday, February 4, 2010

Successful H-1B Petition Strategy Requires Planning

Planning pointers for employers and employees in advance of April 1, 2010, the first H-1B filing day.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for 2010 employment is April 1st.
The competition for the 58,200 H-1B numbers is keen. In April 2007 and 2008, there were USCIS random selections first for the 20,000 petitions qualifying under the “master’s or higher degree” advanced degree exemption, then for the 58,200 threshold bachelor's degree numbers.
While the current economy may reduce the number of petitions from the 2008 record levels, it is unlikely that the low cap numbers will be sufficient for the current annual demand.

To maximize the chances for successful H-1B visa employment authorization consider the following:
1. File the H-1B Petition properly. An improperly filed petition will be rejected and a delayed refilling may also be rejected if it misses the cutoff date. In 2008 the CIS refused new filings after a 5 day filing window. Later filed petitions missed the opportunity to be included in the computerized random selection or “lottery”.
2. Higher Education pays off. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also reached within the initial 5 day filing window period in 2008.
3. Extra numbers for Free Trade Visa applicants. H-1B1 Professionals from Chile (1,400) and Singapore (5,400) are given extra numbers and as they are used they are subtracted from the annual worldwide total. These Free Trade numbers are unlikely to be used up in 2010. The H-1B1 visa category allows specialty professional employment for qualified persons who possess the threshold bachelors’ degrees.
4. Canadian and Mexican TN professionals are treated favorably. Certain professionals from those NAFTA treaty countries are permitted TN status without the need to compete for H-1B numbers. TNs are eligible for a three year admission, providing new flexibility for an employer’s long-term employment strategy. Unlike the H-1B program, the TN status allows for an unlimited number of extensions for qualified professionals.
5. E-3 Australian professionals have advantages. Australians are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap. The advantage to the E-3 visa status is that there is no petition required for a nonimmigrant visa application, just an LCA and job offer; spouses are eligible to apply for employment authorization and an indefinite number of extensions are available.
6. Extraordinary persons are treated extraordinarily well. 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.
If you are interested obtaining information concerning any of these matters please send an E-Mail to Chuck Miller, or telephone (818) 508-9005.