Immigration Employment

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

2012-01-03T09:53:00.000-08:00

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

2011-12-31T11:15:00.000-08:00

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

2011-12-22T17:02:00.000-08:00

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.

USCIS Document Matrix Useful I-9 Reference for Employers

2011-11-04T12:54:00.000-07:00

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

2011-09-23T14:41:00.000-07:00

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

2011-07-26T12:18:00.000-07:00

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

2011-07-01T09:38:00.000-07:00

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...

Time to Upgrade Your Company's Immigration Compliance Program

2011-06-14T14:22:00.000-07:00

How to Upgrade the Immigration Compliance Program

One of the most effective compliance techniques is to conduct an internal evaluation of the existing compliance program. The advantages to doing this are that once a company has answered the questions that help evaluate the program including the strengths and, yes, the weaknesses, of existing efforts will be revealed. It is recommended that this be done in advance of the decision to join the E-Verify or IMAGE programs, or before a private external audit. This will allow the company’s compliance staff to learn about the latest compliance techniques, and it will save the company future expense.

The employer’s existing compliance program should be evaluated both for its policies and how those policies are implemented into compliance program procedures. Written compliance manuals and training programs should be assessed to determine whether the company’s IRCA Form I-9 verification and retention, anti-discrimination, no-match letter, contractor liability, and FAR (E-Verify) government contractor policies are up-to-date and reflected in current compliance procedures.

The employer’s immigration law compliance policy manual should provide the human resources department with clear guidance on the various record-keeping and penalty provisions including H-1B posting, benching and public access requirements. The company’s immigration compliance training program for executives, managers and hiring agents should be evaluated for its effectiveness. Further, the company’s recruitment, hiring and termination policies and training must be evaluated for their compliance to the anti-discrimination and unfair immigration-related employment practices laws. Some key factors to evaluate are the following:

Compliance Policy - Does the company have a written Form I-9 and immigration law policy? A written policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors. officers. managers. supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer’s compliance
history.

Training Program - Does the company have an ongoing compliance training program? If so, does it include anti-discrimination. Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue? Does the company require managerial employees to receive compliance training? Are there library and reference files dedicated to Form I-9 verification and other compliance issues?

• Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

• One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores.

• An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program.

• All anti-discrimination notices to employees about their rights should
be prominently posted.

• All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Tickler System – Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms and allow sufficient time for reverification? The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien’s work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification.

At the end of the internal evaluation, it may be valuable to discuss your employer's compliance with an immigration attorney with I-9 compliance expertise. An immigration compliance audit is the the surest way to eliminate noncompliance and upgrade your immigration compliance program for the future.

Handbook for Employers Updated

2011-06-14T10:58:00.001-07:00

A new electronic version of the Handbook for Employers: Instructions for Completing Form I-9 (M-274) (Rev. 06/01/11) N is available in the Employer Section of the Publications Page on our Website. This version includes:

Expanded guidance on how to complete Form I-9
Illustration of I-9 completion for minors and persons with disabilities (special placement)
TPS special rules
Verification and reverification of F-1 Students, including Optional Practical Training, Curricular Practical Training, Cap Gap and STEM extensions
J-1 Exchange Visitors and M-1 verifications and reverifications

Employers are advised to now begin to use the new version for a general reference for the completion of the Form I-9.

In the area of employment verification and worksite enforcement, the USCIS is responsible for Form I-9 and for the administration of the E-Verify employment eligibility verification program. The USCIS publishes the Form M-274 Handbook for Employers, as instructions for employment verification on Form I-9, and maintains a Website, www.uscis.gov .

Haiti receives TPS Redesignation

2011-06-14T10:37:00.000-07:00

The USCIS has redesignated Haiti for Temporary Protected Status (TPS) and extended the country’s current TPS designation for 18 months—through Jan. 22, 2013.

Haitian nationals should review the Federal Register notice published on May 19 and the Federal Register notice published on May 23, as well as the TPS page at www.uscis.gov, regarding the redesignation of Haiti for TPS to determine whether it is necessary to file a new TPS application and Form I-765, Application for Employment Authorization.

The agency reminds employers that Haitian TPS employees with expired EADs may still be authorized to work. A May 23 Federal Register notice describing the re-registration procedures for Haitian TPS beneficiaries announced that employees from Haiti who have Temporary Protected Status (TPS) and an EAD based on TPS received an automatic six-month extension of their EADs.

To determine if an employee’s EAD has been automatically extended by the Federal Register notice, employers should do the following:

Look at the “Category” section on the expiring (or expired) EAD.

If either A12 or C19 is listed, the EAD was issued under the TPS program.

Look at the expiration date of the EAD.

If the expiration date on the EAD is July 22, 2011, then the employee is a TPS beneficiary from Haiti and his or her employment authorization has been automatically extended to January 22, 2012.
If a different category or expiration date is listed, then the six-month automatic extension does not apply, and the usual Form I-9 reverification rules apply upon expiration of the card.

The Stanford Law School Worksite Immigration Compliance Symposium

2011-06-09T13:37:00.000-07:00

STANFORD, CA –Stanford Law School held its first annual Worksite Immigration Compliance Symposium, a one-day event focusing on corporate immigration compliance, hosted by the Stanford Law School Rock Center for Corporate Governance.

Featuring experts from the Department of Homeland Security, the Department of Justice, lawyers from private practice and academia, the symposium covered recent trends in I-9 related worksite enforcement, various government programs (including E-Verify) and emerging best practices from the field.

Symposium attendees received a copy of the ABA’s Immigration Compliance Auditing for Attorneys . This book provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws. Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr., the distinguished authors of this ABA best-seller, served as moderators for several of the panels. Remediation is the crux of the Immigration Compliance Audit – it allows mitigation and preserves good faith. The remediation steps outlined Immigration Compliance Auditing for Attorneys include how to deal with missing I-9s, timeliness violations, knowingly hired/continuing to employ violations, and paperwork errors.

Paul Virtue, the former INS General Counsel, responsible for the "Virtue Memorandum" concerning the treatment of I-9s in the workplace, was the Symposium's keynote speaker.

Tina Sciocchetti, Assistant US Attorney in the Northern District of Albany 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.

SLS Associate Dean and Rock Center Faculty Director, Dan Siciliano spoke on corporate immigration compliance in a Sarbanes-Oxley, Dodd-Frank World. As part of his presentation Dean Siciliano demonstrated how corporate awareness of I-9 compliance issues could be compared to studies of the observation of extrinsic factors, illustrated by this the Invisible gorilla video.

The Symposium speakers discussed recent enforcement actions where thousands of large high-profile publicly traded companies and hundreds of other companies have recently undergone extensive, and often expensive, scrutiny at the hands of the Department of Homeland Security. Recent headlines are testament to the increasing impact of administrative sanctions leveled against those employers that err in the process of preparing and maintaining I-9s (the document companies must complete to establish and evidence that employees are eligible to work in the U.S.). In addition to expanded record keeping audits, the ICE Worksite Enforcement Program has increasingly focused on employers that have knowingly hired unauthorized workers using ICE inspections that generate civil and criminal penalties for thousands of noncompliant companies.

Stanford Law School Worksite Immigration Compliance Symposium

2011-05-20T10:09:00.000-07:00

Monday, June 6, 2011
8:15 am - 6:30 pm

About the event: This Symposium, in the form of panel discussions and keynotes presented by experts from government, private practice and academia, will explore the trends that underlie this expansion in enforcement activity, describe recently enumerated best practices concerning voluntary employer compliance with DHS verification programs, and evaluate the likely impact this will have on corporate behavior and community relationships with various federal agencies.

Registered paying symposium attendees will receive a copy of the ABA’s 2011 Immigration Compliance Auditing for Lawyers. This book provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws. Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr., the distinguished authors of this ABA best-seller, will serve as moderators for several of the panels. In addition, Paul Virtue , the former INS General Counsel, responsible for the "Virtue Memorandum" concerning the treatment of I-9s in the workplace, will be the Symposium's keynote speaker.

A complete agenda can be viewed by clicking here.

Registration Information: This event is open to the public but advanced registration is required (walk-in attendees cannot be accommodated). For more information and to register, please visit the event webpageon the Stanford Law School calendar.

General Admission (includes lunch and book) = $99.00
Rock Center Affiliates (includes lunch) = Free*
Stanford Staff, Faculty or Student (includes lunch) = Free*

Click here to register

Questions? Email rockcenter@law.stanford.edu or (650) 723-5905.

USCIS Publishes the Form I-9 Unexpired Document Final Rule

2011-04-17T11:53:00.000-07:00

Fourteen years after the passage of the IIRAIRA and more than a decade after the earlier INS proposed rule, the CIS published the Final Rule that continues the agency’s implementation of the statute’s document reduction mandate. The Final Rule adopted the 2008 Interim Rule without change. The Interim Rule was published with a February 2, 2009 effective date, but DHS subsequently delayed the implementation of the Form I-9 Interim rule until April 3, 2009. Both permissible 2009 versions of the I-9 now contain the lists that reflect the Unexpired Document Final Rule’s requirements.

The Final Rule requires that all documents presented during the Form I-9 verification process be unexpired adopting the Interim Rule’s the dual rationale that expired documents are prone to fraud, and that they may not possess the current biometric safeguards. A document containing no expiration date, however, such as the social security card, is considered unexpired.

The Final Rule contains the updated Form I-9 Lists A and C, deleting some documents and adding others. The three expired and out-of-issue documents deleted from List A are: (1) Form I-688, Temporary Resident Card; (2) Form I-688A, Employment Authorization Card; and (3) Form I-688B, Employment Authorization Card.

Two documents were added to List A: (1) The temporary I-551 printed notation on a machine-readable immigrant visa, in addition to the foreign passport with a temporary I-551 stamp; (2) and a passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

The computer-generated Form I-94A was added to List A, to accompany the familiar Form I-94 that nonimmigrants continue to use for admission at U.S. ports of entry and preclearance offices. While the rule did not add the Passport Card to the regulation, it did add that document to the U.S. Passport listed on List A that is found on the Form I-9 revision.

Technical revisions to the lists of documents include replacing the term “employment eligibility” with “employment authorization” necessary to conform the regulations to the statutory language. The rule also corrects the titles of two State Department documents: Form FS-545 is now correctly titled “Certification of Birth” and Form DS-1350 is correctly entitled “Certification of Report of Birth.”

The Form I-9 itself was revised and published in the Federal Register as part of the interim rulemaking. The revision to the form included the above changes to the List A and C documents, as well as adding a “noncitizen national of the United States” box to the employee's attestation block to Section 1 of the form.

Social Security Resumes Sending No-Match Letters

2011-04-17T11:51:00.000-07:00

In an April 2011 transmittal the Social Security Administration has announced that after a four year hiatus that it has resumed sending no-match letters to employers. SSA did not send the letters for tax years 2006 through 2009 and has discontinued the EDCOR letters which contained multiple employee data. SSA has resumed sending employer DÉCOR letters for individual employees in April 2011, for tax year 2010, and has discontinued the EDCOR letters which contained multiple employee data.

Employers send the SSA earnings reports (W-2 Forms) with the employee's name and Social Security number (SSN). Prior to 2007, if the W-2 information that the employer submitted did not match SSA records, the SSA sent employer correction request educational correspondence (EDCOR) also referred to as a “code v” or “no-match” letter, which informed the employer of the discrepancy. In the alternative, if the address if the name and/or social security number listed on the employer’s submitted W-2s did not match the information in the SSA database SSA could send an employee version of the employer decentralized correspondence (DECOR) letter to employees at their home address .

SSA reminds employers that there are many possible reasons why the information they reported did not match SSA records. For example, the discrepancy could be due to a transcription or typographical error, an incomplete or blank name or SSN, or a name change. Employers are requested to check if the information provided to SSA matches employer records. A no-match between an employee's name and SSN in the employer and SSA’s records does not mean that the employee lacks work authorization, nor does it make any statement regarding a worker's immigration status. The entire SSA April Transmittal is found on our Publications page. A sample DÉCOR letter is also found on our Website.

The no-match letters are one of the employer records that ICE agents and forensic auditors request and/or subpoena during the I-9 administrative inspections. While no-match letters are not currently considered direct evidence of the constructive knowledge for knowingly continuing to employ civil and criminal charges, they are treated as investigative indicia that the employer has been notified that reported information does not match SSA records.

New from the American Bar Association: Immigration Compliance Auditing for Lawyers

2011-03-03T14:02:00.000-08:00

The immigration compliance responsibility placed on employers by the federal government can be overwhelming. This cutting-edge resource provides authoritative, step-by-step guidance for conducting immigration compliance audits under the Department of Homeland Security regulations and related employment laws.

Charles M. Miller, Marcine A. Seid and S. Christopher Stowe, Jr. have written the definitive step-by-step guide for conducting immigration compliance audits. Immigration Compliance Auditing for Lawyers contains an authoritative analysis of the latest federal law and policy required for competent, independent and ethical immigration compliance auditing. If your client is faced with and immigration compliance audit, this essential book will provide you with the necessary tools and resources needed for the audit, including the auditing of I-9 Forms, compliance programs, employers' civil and criminal liability and anti-discrimination. From the I-9 Audit Checklist to the Auditor's step-by step Guide, auditors are provided an integrated auditing system that incorporates the latest ICE policies and OCAHO decisions.

Employer Immigration Employment Date Alert: April 1, 2011 begins the H-1B filing season

2011-02-21T13:51:00.000-08:00

TOP 2011 H-1B PLANNING TIPS

Charles and Terri Miller provide their 10 best planning tips for employers and employees, in advance of the April 1, 2011 USCIS H-1B filing season.

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 October 1, 2011 employment is April 1st.

In 2008 there was a USCIS random selection of the successful petitions for those numbers as well as the 20,000 additional numbers for the recipients of U.S. advanced degrees. While the current economic situation may reduce the number of petitions from 2008 record levels, it is unlikely that the low cap numbers will be sufficient for the current demand and that the cap will close sometime in the next fiscal year.
To maximize your chances for H-1B employment authorization, your company should consider the following:

1. Use an immigration lawyer with experience in successful H-1B filing.

2. 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 reached in the previous fiscal year.

3. 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.

4. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

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

6. 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.

7. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

8. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year these include: an institution of higher education; related or affiliated to a higher education institution nonprofit entity, and a nonprofit research organization or a governmental research organization.

9. Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2011.

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

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to Charles Miller atcmiller@millerlawoffices.com

New Adjustment of Status Version of EAD (Form I-766) Card Includes Advance Parole

2011-02-21T13:49:00.000-08:00

The USCIS is now issuing employment and travel authorization on a single card for certain foreign national applicants filing an Application to Register Permanent Residence or Adjust Status in the U.S. The new dual-purpose card looks almost identical to the current Employment Authorization Document (EAD), except for one line of text near the bottom which reads, “Serves as I-512 Advance Parole.”

Read the entire article..

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

2011-01-13T12:59:00.000-08:00

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 2011 cap numbers are exhausted. April 1st , 2011 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, 2011.
To maximize your applicant’s chances for employment authorization, your company should also consider the following :

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.

Evaluate Your Employer’s Homeland Security Immigration Compliance Program

2011-01-13T12:53:00.000-08:00

All U.S. employers face enhanced responsibilities to effectively comply with recent Department of Homeland Security changes to the Form I-9 and the lists of acceptable documents. Certain government contractors and subcontractors have been required to join the E-Verify electronic verification system which augments the I-9 attestation and maintenance responsibilities.

These new compliance duties require that the employer adopt an effective worksite enforcement compliance strategy. The efficient execution of this compliance plan must be a high priority. By the time there is an ICE worksite enforcement action, remediation and any possible negotiations will be under the supervision of the DHS and/or the U.S. Attorney's office in the city where the enforcement action takes place.

It would be a mistake for employers to reduce compliance efforts because of the Obama Administration’s return to the primacy of administrative civil sanctions as an enforcement tool of choice. The April 30, 2009 ICE Office of Investigations Worksite Enforcement Strategy memorandum reemphasized that the agency’s worksite enforcement operations, including the criminal prosecution of noncompliant employers, the removal of an unauthorized workforce and the debarment of government contractors, would remain significant deterrence options. Nevertheless, the ICE Worksite Enforcement strategy memorandum emphasizes that administrative I-9 inspections remain the agency’s primary enforcement tool and will support later criminal investigations and prosecutions.

One of the most effective compliance techniques is to conduct an internal evaluation of the existing compliance program. The advantages to doing this are that once a company has answered the questions that help evaluate the program including the strengths and, yes, the weaknesses, of existing efforts will be revealed. It is recommended that this be done in advance of the decision to join the E-Verify or IMAGE programs, or before a private external audit. This will allow the company's compliance staff to learn about the latest compliance techniques, and it will save the company future expense.

The employer's existing compliance program should be evaluated both for its policies and how those policies are implemented into compliance program procedures. Written compliance manuals and training programs should be assessed to determine whether the company's IRCA Form I-9 verification and retention, anti-discrimination, no-match letter, contractor liability, and FAR (E-Verify) government contractor policies are up-to-date and reflected in current compliance procedures.

The employer's immigration law compliance policy manual should provide the human resources department with clear guidance on the various record-keeping and penalty provisions including H-1B posting, benching and public access requirements. The company's immigration compliance training program for executives, managers and hiring agents should be evaluated for its effectiveness. Further, the company's recruitment, hiring and termination policies and training must be evaluated for their compliance to the anti-discrimination and unfair immigration-related employment practices laws. Some key factors to evaluate are the following:

Compliance Policy - Does the company have a written Form I-9 and immigration law policy? A written policy manual serves several purposes: (1) It sets forth the line of supervision and responsibility for compliance decision making; (2) it provides the compliance staff with clear indications of which decisions require a manager and which do not; and (3) it provides directors. officers. managers. supervisors and responsible compliance employees with a frame of reference as to the requirements of the law, taking into consideration the employer's compliance
history.

Training Program - Does the company have an ongoing compliance training program? If so, does it include anti-discrimination. Form I-9 verification and contractor and subcontractor issues? Does the employer have legal counsel to call on when there is the need for more information on a particular compliance issue? Does the company require managerial employees to receive compliance training? Are there library and reference files dedicated to Form I-9 verification and other compliance issues?

• Training on worksite compliance issues pays dividends over time. It helps the company develop an institutional attitude of compliance which continues to provide staff with confidence that they are performing their compliance tasks correctly.

• One effective training method is a compliance training teleconference with legal counsel every six months. This regular training is particularly helpful for companies with remote worksites that are performing Form I-9 verifications, such as retail stores.

• An effective compliance training program is good evidence that the company treats its compliance responsibilities seriously and in good faith. Government agencies and courts are impressed with a company that continually seeks to improve its compliance efforts with a current training program.

• All anti-discrimination notices to employees about their rights should
be prominently posted.

• All personnel involved with immigration-related hiring, including managers and supervisors, should be educated about the requirements for compliance with the anti-discrimination laws including document abuse, national origin, citizenship and immigration status violations, retaliation, and other unfair immigration-related employment practices.

Tickler System - Does the company maintain a tickler system to keep track of the expiration dates of employee Form I-9 forms and allow sufficient time for reverification? The tickler system should highlight the expiration date by which the employer must actually undertake reverification of the alien's work authorization, as well as provide a warning date to remind the employee to obtain an extension of an employment authorization document, if necessary, allowing sufficient time for CIS processing, taking into consideration the deadline date for reverification.

Recovery Hiring? Don’t Forget to Update Employer Immigration Compliance

2011-01-12T15:25:00.000-08:00

Human resources managers and professionals face new forms, requirements and procedures when they return to recruit foreign students on college and university campuses in 2011, after a hiatus in hiring brought on by the recession. They will also find that there have been enhanced I-9 responsibilities that affect all new hires, not just the foreign college graduates.

Your HR department will require the latest information concerning the Department of Homeland Security's worksite enforcement program, as well as other immigration-related issues that affect employers on a daily basis. Recovery hiring will bring new topics to your administrative offices concerning the E-Verify electronic verification system, state immigration laws. Thousands of government contractors and subcontractors now face federal regulations which require them to use the E-Verify electronic system.

Chuck Miller of the Miller Law Offices provides the following Homeland Security Compliance tips for 2011:

1. DO remember to use the new Lists A and C for the reverification of the employment authorization documents of existing employees whose document(s) expire.

2. DO NOT reverify an expired U.S.passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

3. DO remember that the receipt rule is only for the receipt for the replacement of lost, stolen or destroyed authorization documents, not for renewals that have been filed but have not been issued.

4. DO reverify on section 3 of Form I-9; if you run out of room you may write the employee’s name in section 1 and complete section2 of a currently valid Form I-9. You can also use a new Form I-9 section 3. Remember to attach the new Form to the previously filled out I-9.

5. DO remember that ONLY UNEXPIRED DOCUMENTS FOUND ON THE CURRENT LISTS A, or B and C, MAY BE VERIFIED OR REVERIFIED.

6. DO be aware that there are new tables of temporary employment authorization documents found in the M-274 Handbook for Employers (April 3, 2009 edition)that may be accepted IN ADDITION to the documents found on Lists A, B and C.

7. DO remember to complete section 1 of the Form I-9 on the first day of employment; For other than short term employees (3 days or less) the USCIS has adopted the “Thursday Rule” for the Section 2 Employer Verification: 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.

8. DO NOT request specific documents; to do otherwise may violate the document abuse discrimination law.

9. ONLY E-Verify employers must require a social security number and a List B photo ID.

10. Do remember that all employees, except for short term employees, may take advantage of the receipt rule.

USCIS Releases the Handbook for Employers January 5, 2011 edition

2011-01-12T14:41:00.000-08:00

The USCIS has published a revision to the Form M-274 Handbook for Employers, the agency’s instructions for employment verification on Form I-9. We provide the M-274 in an Adobe PDF format on our Website, along with the latest version of Form I-9. The Handbook is an excellent source for the current version of the List A, B and C documents that employers must verify for all new hires and for reverification of existing employees whose authorization documents expire. This revised edition contains updated illustrations of authorization and identity documents and expanded instructions for verification and storage issues for Forms I-9, including the following situations:
• J-1 documentation of the Form DS-2019 accompanied by Form I-94 or Form I-94A, with a referral to the J-1 program designated officer when clarification is necessary.

• Permissible use of common abbreviations such as DL for driver’s license or SS for Social Security.

• Permanent Resident Cards with either an expiration date or no expiration date are List A documents that should not be reverified.

• If an employee presents an expired Permanent Resident Card along with a Form I-797, Notice of Action, that indicates that the card is valid for an ad¬ditional year, this combination is acceptable List C evidence of employment authorization for one year as indicated on Form I-797.At the end of the one-year period, you must reverify. 2011 Handbook at 9

• Refugees and Asylees are authorized to work because of their immigra¬tion status, a refugee or asylee should write “N/A” on the line calling for an expiration date. Id. at 10

• CAP-GAP F-1 students who seek to change to H-1B status may be eligible for a cap-gap extension of status and employ¬ment authorization through September 30 of the calen¬dar year for which the H-1B petition is being filed, but only if the H-1B status will begin on October 1. The term cap-gap refers to the period between the time a nonim¬migrant’s F-1 student status would ordinarily end and his or her H-1B status begins. Id. at 16

• The 240 Day Rule-The Handbook provides verification instructions for this common situation for nonimmigrant workers. While the peti¬tion is pending, your existing employee is authorized to continue to work for you, for up to the applicable time period—120 days to 240 days depending on the catego¬ry petitioned for—or until USCIS denies your petition, whichever comes first. Id. At 18.

E-Verify Connection- the new USCIS newsletter

2010-12-23T11:19:00.000-08:00

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.

Homeland Security Seizes Business Assets for Immigration Hiring Violations

2010-12-02T16:43:00.000-08:00

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.”

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

2010-11-20T16:11:00.000-08:00

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
fields.

(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.

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

2010-10-22T16:51:00.000-07:00

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
country.

Is Employer Certification an Inevitable Component of Comprehensive Immigration Reform?

2010-10-05T14:49:00.000-07:00

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;
compliance;

Section 301(e)(5) ORDER OF INTERNAL REVIEW
AND CERTIFICATION OF COMPLIANCE.-
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.

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

2010-09-26T15:40:00.000-07:00

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.

2010-09-17T10:43:00.000-07:00

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.

Electronic I-9 Final Rule Allows Employer Flexibility

2010-07-26T14:42:00.001-07:00

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.

Administration Increases Criminal Prosecutions, Border Enforcement

2010-07-22T16:48:00.000-07:00

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.

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

2010-07-15T13:12:00.000-07:00

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 http://www.uscis.gov (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 http://www.uscis.gov (last updated June 30, 2010).

ICE 5-year Plan Includes Hiring Additional Auditors

2010-07-07T16:36:00.000-07:00

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.”

Politico: Democrats Talk Tough on Immigration

2010-06-10T15:19:00.000-07:00

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."

Certain Nonimmigrant Visa Application Fees Increased

2010-06-04T17:11:00.001-07:00

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

USCIS provides TPS Guidance to Employers and Employees

2010-05-21T12:15:00.000-07:00

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 www.uscis.gov/tps."

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.

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

2010-05-11T10:44:00.000-07:00

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.

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

2010-04-28T10:53:00.000-07:00

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.

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

2010-04-12T16:05:00.000-07:00

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.”

Kuck and Miller Speak on Immigration Enforcement at PLI Immigration Institute

2010-04-08T12:00:00.000-07:00

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.

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

2010-03-17T18:04:00.000-07:00

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.

Has your company been ICED?

2010-03-04T13:10:00.000-08:00

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.

Successful H-1B Petition Strategy Requires Planning

2010-02-04T17:38:00.000-08:00

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, cmiller@millerlawoffices.com or telephone (818) 508-9005.

2010 H-1B Cap Reached

2009-12-24T12:58:00.000-08:00

On December 22, 2009, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. The USCIS press release indicated that Dec. 21, 2009 represents the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after Dec. 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Dec. 21, 2009. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected

Up in the Air : 2010 H-1B Numbers almost Used Up

2009-12-18T12:23:00.000-08:00

On Tuesday, December 15th, U.S. Citizenship and Immigration Services (USCIS) announced its receipt of 64,200 filings against the 2010 H-1B cap. While USCIS continues to accept petitions, the cap may be reached before the end of the calendar year.

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 October 2010 employment is April 1st, 2010. While an economic recovery may increase the number of petitions charged against the 2011 cap in April 2010, It is unknown whether we will soon see a return to the 2008 record levels of receipts which resulted in a random selection process.

DHS Announces New Wave of Critical Infrastructure I-9 Audits

2009-11-23T11:19:00.000-08:00

by Tina Brockmann

On November 19, 2009 the Department of Homeland Security announced that it had issued 1,000 I-9 audit notices to employers in critical infrastructure industries.

Back in July, 2009, DHS sent out 654 I-9 audit notices to employers across the US. During I-9 audits ICE agents review the I-9 forms that employers are required to verify and maintain for every newly-hired U.S. employee.

DHS Assistant Secretary John Morton announced that the newest wave of audit notices were directed at employers were selected based on their industry of public safety and national security. Following the INS/DHS reorganization in 2002, there was a series of investigations into employer hiring practices at critical infrastructure sites including Operation Tarmac (airports) and Operation Glow Worm (nuclear power plants). ICE has also turned its enforcement attention to utility companies, chemical plants, military bases, and defense subcontractors.

This latest wave of audit notices is significant since Morton also announced that 45 employers had been debarred from government contracts in 2009. Government contractors and subcontractors and other employers in critical infrastructure industries are advised to consider external, private I-9 audits to assess their potential liability and possible remediation.

From AILA Infonet: "Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012

2009-11-03T13:29:00.000-08:00

On 10/28/09, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill (P.L.111-83).

The law extends the non-minister religious worker (section 568), the "Conrad 30" (section 568), the EB-5 visa (section 548), and the E-Verify (section 547) programs through September 30, 2012.

The law also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

The bill was previously approved by the House of Representatives on 10/15/09 by a 307-114 roll call vote, and by the Senate on 10/20/09 by a 79-19 vote."

AILA InfoNet Doc. No. 09102968 (posted Oct. 29, 2009)

No-Match Rescission Leaves Matter in Limbo

2009-10-19T16:10:00.000-07:00

by Charles M. Miller

The Department of Homeland Security has rescinded its 2007 No-Match regulation (72 Fed. Reg. 45611•45624 (Aug. 15, 2007)), leaving U.S. employers wondering if the Social Security Administration has plans to resume no-match letters, and if so, what steps to take to protect their companies from DHS charges of constructive knowledge IRCA violations.

The no-match regulation had changed the legal obligations of an employer when receiving a no-match letter from the SSA or a notice of suspect documents letter from
ICE. The rule had amended the definition of constructive knowledge to include receipt by an employer of a no-match letter from Social Security Administration (SSA) or a notice from DHS, with a potential finding that the employer had constructive knowledge that it was employing an alien not authorized to work in the United States. The rule also described the three "safe harbor" steps that the Department of Homeland Security (DHS) considered to be a reasonable response by an employer to receipt of a no-match letter. Employers with knowledge that their employees are not authorized to work in the US are liable for both civil and criminal penalties under the Immigration Reform and Control Act of 1986 (IRCA).

Employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) with the employee’s name and social security number (SSN). The previous No-Match procedure was that if the W-2 information that the employer submitted did not match SSA records, the SSA sent an “Employer Correction Request” also referred to as a “code v” or “no-match” letter, informing the employer of the discrepancy. When the SSA was unable to match an employee’s name and Social Security Number (SSN) from the W-2 with its own records, the employee’s earnings were posted to SSA’s Earnings Suspense File until that employee’s data matched with SSA records.

A no-match situation occurred for a variety of causes including clerical error and name changes. One of the causes of a no-match situation is the submission of information for an alien who is not an authorized U.S. worker and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien. ICE may send a similar letter (Notice of Suspect Documents) during an I-9 audit if that agency is unsuccessful at confirming in DHS records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person.

No-match letters had become an issue in worksite enforcement actions and federal prosecutions. Employers who had received “no-match letters” that represented a high percentage of their total workforce, faced constructive knowledge criminal and civil penalties. The sheer numbers of the no-match letters sent out to employers caused the DHS to consider this rulemaking to enhance the responsibilities of the affected employers. SSA indicated that in 2004, 138,000 no-match letters were sent to employers. The large scale of the no-match situation can be measured by the SSA’s Earning Suspense File (ESF), an electronic fund constituted of earnings that cannot be matched to the accounts of workers. In 2006, the ESF had cumulatively grown to approximately $586 billion. Steve Schaeffer, Assistant Inspector General for the Office of Audit, Social Security Administration Office of the Inspector General, Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means, June 7, 2007; http://waysandmeans.house.gov/hearings.asp?formmode=view&id=6094.

In the AFL-CIO v Chertoff litigation concerning the DHS rulemaking, the District Court in the Northern District of California had issued a preliminary injunction to stay the effect of the DHS no-match safe-harbor final rule. In that preliminary injunction order decision, Judge Breyer indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for tax year 2007. SSA had indicated that it did not send out no-match letters for tax years 2005 and 2006.

The DHS notice leaves employers with uncertainty as to what actions they should take if, and when, SSA resumes issuing the No-Match letters.

An SSA resumption of the No-Match letters will see immigration counsel return to the advice we were giving prior to the 2007 rule that DHS rescinded. But that's for another post.

EEOC Brings 4 National Origin Discrimination Cases

2009-09-29T14:05:00.000-07:00

The EEOC has recently announced 4 new national origin-related lawsuits against employers:

EEOC Files Class National Origin Harassment Suit Against Hilton Hotel in Chicago Suburb (September 28, 2009)

The Redwoods in Yosemite Sued by EEOC for Unlawful Treatment of Hispanic Employees (September 25, 2009)

Immokalee Packing Companies Sued by EEOC for Discriminating Against Haitians (September 25, 2009)

Knouse Foods Sued by EEOC for Sexual and National Origin Harassment and Retaliation (September 22, 2009)

The EEOC is responsible for enforcing all federal equal employment opportunity and workplace discrimination. The EEOC protects U.S. workers from employment discrimination regardless of citizenship or work authorization status.

The Office of Special Counsel has jurisdiction over national origin discrimination involving employers of 4 to 14 employees, while the EEOC has jurisdiction over complaints concerning national origin employment discrimination concerning employers of 15 or more individuals under Title VII of the Civil Rights Act of 1964.

Federal Contractor E-Verify Requirement Goes Forward

2009-09-17T13:36:00.000-07:00

by Charles M. Miller, co-author of Immigration Law in the Workplace

On September 9, 2009 the Fourth Circuit Court of Appeals denied the plaintiffs’ motion for a injunction that would have suspended the FAR E-Verify rule during the pendency of the appeal. Five days earlier the District Court in Maryland had denied a similar emergency motion.

On December 23, 2008, the United States Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the executive branches’ authority to change key provisions of the Immigration and Nationality Act. Chamber of Commerce of the United States of America, et al. v. Chertoff, et al.,08-cv-03444-AW (D.C. M.D. 2008).The District Court in Maryland ruled in favor of the Federal Government defendants, resulting in the appeal to the Fourth Circuit Court of Appeals.

The final rule requires the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract, a requirement which began September 8, 2009. The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). It covers subcontractors if the prime contract includes the clause.

The rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. It exempts those contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services; contracts of less than the simplified acquisition threshold ($100,000); contracts less than 120 days; and contracts where all work is performed outside the United States. Those employees who normally perform support work, such as indirect or overhead functions and do not perform any substantial duties applicable to the contract, are excluded from coverage.

The USCIS, the agency with primary authority over the E-Verify program has issued the E-Verify Supplemental Guidance for Federal Contractors which supplements the E-Verify Users Manual.

Congress will take up the funding and authorization extension of the E-Verify program, which is set to expire September 30, 2009. It is uncertain whether E-Verify will again be authorized for a limited number of years or be authorized as a permanent program.

CCH: Far E-Verify Rule to Start September 8, 2009

2009-08-31T11:29:00.000-07:00

CCH Labor and Employment Law online reports that the District Court in Maryland upheld the E-Verify federal contractor rule, which will take effect September 8th. E-Verify employers sign a memorandum of understanding with the CIS that allows investigators to enter the workplace to examine I-9 forms and E-Verify records, similar to an audit but without any advance notice required. The FAR E-Verify regulation requires that federal contractors and certain subcontractors use the E-Verify system for both new employees and existing employees assigned to federal contracts. An estimated 3.8 million persons’ Form I-9 data will be processed electronically. The agencies estimated that in the initial fiscal year (2009) that there will be 168,324 contractors and subcontractors that will be required to use E-Verify

Use Either of the 2009 Form I-9 Versions

2009-08-31T11:24:00.000-07:00

USCIS has republished the Form I-9 with an August 7, 2009 revision date to reflect OMB approval of the form until 2012. Employers may use the Form I-9 with the revision date of either August. 7, 2009 or February. 2, 2009. The revision dates are located on the bottom right-hand portion of the form. The latest I-9 form is available in our publications section.

IMMIGRATION REFORM NOW

2009-08-19T16:54:00.000-07:00

by Charles M. Miller

President Obama’s Mexican trip brought disappointing news to the U.S. Hispanic community: Immigration reform action in Congress would be postponed until 2010. The President cited in his August 9,2009 Mexico City remarks that healthcare reform, energy legislation and financial reform would all come first in 2009. What the President forgot was that first on the American public’s 2009 wish list is economic recovery.

Four days later the Cato Institute, the libertarian, free-market think tank issued a report concerning the effect of immigration reform on the U.S. economy, finding that immigration reform efforts made by Congress and the president could have a major economic impact on the welfare of U.S. households. Debunking popularly held beliefs that the estimated 8.3 million unauthorized workers in the United States lower the incomes of U.S. households, the Cato Institute study concluded that legalization of these workers would actually result in income gains for American workers. The report found legalization would lead to potential gains to U.S. households represented in higher wages, investment income, employment, and government revenue. The report found the net effect to government spending to be manageable compared to the net gains for American workers and their households.

A Wall Street Journal editorial citing the Cato Institute report, found that “re-enforcing the deeply flawed immigration status quo, rather than reforming it, isn’t doing the economy any favors.” The WSJ may be understating the case for the economic need for immigration reform now.

Immigration reform as a phrase has come to mean a compromise between two apparently conflicting goals: The legalization of the estimated 13 million unauthorized persons in the U.S. and the institution of workplace and border enforcement measures that will discourage future illegal entries and employment. That was the grand compromise that was reached in 1986 when President Reagan signed IRCA, the last major immigration reform bill. IRCA legalized 1.7 million unauthorized workers and instituted the I-9 identity and authorization verification system with graduated penalties.

Much has changed since 1986. Hispanics are a major demographic for both the economy and the politics of the U.S. The economic downturn adversely affected the Hispanic worker in America in human terms and as part of the statistics that are now being analyzed. It is clear that one key factor in the return to consumer confidence will be measured by whether the Hispanic consumers return to retail stores in December. What is crystal clear for our country’s economic future is that our nation’s economy will not rebound without a recovery in California, Arizona, Nevada, Colorado, New Mexico and Texas, all states with substantial Hispanic populations.

The question for President Obama and Congress is whether they understand that immigration reform, the grand compromise, will drive the economic recovery. The 13 million persons are here and most of them are employed already. It is important that this segment of the work force be employed under the terms of the laws that affect other American workers: Taxes, Social Security, wage and hour laws need to be enforced. The best way to accomplish this is to provide humane and efficient employment authorization to those workers who deserve the opportunity to work hard and build their own version of the American dream.

Critics of immigration reform have traditionally raised the argument that the newly-legalized workers will take jobs away from U.S. workers. That criticism implies that the unfair hiring practices and exploitation of the undocumented workers do not already exist. The truth is that the undocumented workforce exists in far greater numbers than ever before. The best protection for the unemployed American worker is to make sure that unfair hiring practices do not continue.

An indication that the Obama administration has already made that enforcement decision was its continued support of the FAR E-Verify rule. The Bush administration in 2008 had published a final rule that required government contractors and subcontractors to place a clause in their government contracts requiring the use of the E-Verify electronic verification system. Homeland Security Secretary Janet Napolitano has recently signaled the Obama administration’s continuing support for the FAR rule and the E-Verify system for future U.S. hiring.

Bringing the millions of undocumented workers into the legal system will guarantee that employers who want to obey the law will be able to fill out the I-9 form, and if they are E-Verify member employers, secure confirmation of a legal hiring for compliance purposes.

The economic recovery will fuel more hiring by employers. But without a realistic way of employing a major segment of the U.S. workforce, the existing violations, and the exploitation of the undocumented will continue.

Immigration reform will end two forms of unfair economic advantage that lawbreaking employers currently hold-they hire the undocumented, pay them lower wages and fail to share the tax burden that their lawful competitors disproportionately shoulder. The unfair advantage of unscrupulous companies can only be eliminated by immigration reform in the earliest stages of the recovery. The economic recovery requires immigration reform now.

IMMIGRATION LAW IN THE WORKPLACE

2009-08-06T16:06:00.000-07:00

My co-authors, Marcine Seid and Chris Stowe, and I are pleased to announce that our Aspen book is shipping this week. We tried to walk the fine line between making the book comprehensive and understandable. We hope that the readers will find IMMIGRATION LAW IN THE WORKPLACE innovative, as it covers both immigration employment benefits and compliance in one volume.
With Immigration and Customs Enforcement (ICE) recently announcing nationwide I-9 audits, employers need to understand the rules governing Form I-9 compliance and keep up to date with the latest changes affecting immigration law. We hope that you find our book to be an authoritative resource that provides a direct understanding of current worksite enforcement and compliance issues.
IMMIGRATION LAW IN THE WORKPLACE helps employers handle both current – and coming – requirements and includes:
• The latest forms, agency guidance and our analysis;
• Clear alternatives that fit a company’s goals and challenges;
• Appendices that give real-world examples of how the immigration employment benefits and compliance laws can work to save a company time and money.
• Guidance for visa applications and enforcement compliance in one volume.
• Explanations of the nonimmigrant and immigrant visa categories
for foreign employees and the CIS requirements for fast approvals.
The book also provides the following employer guidance:
• I-9 audits, and how to prepare for them;
• Government Contractors’ E-Verify responsibilities;
• Visa application requirements;
• Permanent labor certifications and alternatives;
• How to immigrate your foreign employees;
• ICE enforcement and sanctions policies and the best practices to ensure compliance;
• U.S. immigration strategy for multinational employers;
• E-Verify and IMAGE requirements,;
• Tax and Social Security issues for foreign employees,
and much more.

CCH White Paper: DHS’s refocused worksite enforcement strategy targets employers

2009-07-22T13:24:00.000-07:00

This new CCH White Paper provides employers with compliance advice concerning the latest DHS immigration employment enforcement efforts. It features tips regarding the use of the revised I-9 form by attorney Charles M. Miller. Miller is one of three authors of a forthcoming Aspen Publishers title scheduled for release in August 2009. Immigration Law in the Workplace, a comprehensive, authoritative yet easy-to-read topical approach to current worksite enforcement and compliance issues.

We provide the CCH White Paper in our Publications section in Adobe .pdf format.

Napolitano: No-Match Rule to be Rescinded

2009-07-08T10:53:00.000-07:00

By Charles M. Miller

Homeland Security Secretary Jane Napolitano announced on July 8, 2009, that it was the agency’s intention to withdraw the Social Security No-Match Regulation, which has never been implemented and has been blocked by court order, in favor of the E-Verify system. http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm .

The AFL-CIO, ACLU, National Immigration Law Center, US Chamber of Commerce, and other plaintiffs, were successful in obtaining a preliminary injunction in October 2007 stopping DHS from implementing this regulation. (AFL-CIO v Chertoff, ND Cal, No 3:07-cv-04472-CRB). In November 2008, DHS had filed a motion asking Judge Charles Breyer of the Northern District of California to lift the preliminary injunction on the federal agency's much beleaguered no-match regulation after publication of the agency’s No -Match supplemental final rule had been published in the Federal Register. Found online at http://edocket.access.gpo.gov/2008/pdf/E8-25544.pdf.

District Court Judge Breyer delayed the hearing on the merits of the litigation until the Obama administration had the opportunity to develop its own position, as reflected in the Napolitano press release. Judge Breyer had indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for Tax Year (TY) 2007. However, SSA No-Match letters for recent tax years have been in a holding pattern because of the litigation, with no current announcement as to the plans for their resumption.

Employers are reminded that the no-match letters represent only one form of constructive knowledge; ICE Worksite Enforcement cases maybe based on other forms of constructive knowledge. As a practical matter, an employer may obtain constructive knowledge that unauthorized aliens may be employed by a variety of other circumstances, including: (1) where the employer fails to complete or improperly completes the Form 1-9; (2) from information obtained from a labor certification application or visa petition; (3) rejection of an alien worker as an applicant due to employment authorization and/or identity document deficiencies, who later appears as an employee of an independent contractor; (4) local law enforcement advice after criminal and civil processes involving off-worksite activities of such a worker, and (5) adverse publicity following a contractor's worksite enforcement problems at another company.

Alert: Immigration Audit Policy Change

2009-07-02T12:44:00.000-07:00

by Charles M. Miller

On July 1, 2009, U.S. Immigration and Customs Enforcement (ICE) announced a policy change issuing Notices of Inspection (NOI) to 652 employers nationwide to initiate administrative I-9 audits. This policy announcement marks a shift in enforcement emphasis from the Bush administration’s policy of emphasizing criminal investigations of employers suspected of violating the federal immigration employment laws by the use of criminal search warrants based on probable cause, which do not require advance notice.

John Morton, the Department of Homeland Security Assistant Secretary for ICE, announced that the 652 businesses were selected for audit as a result of leads and information obtained through other investigative means.

Employers have had the responsibility of verifying the employment authorization and identity documents of all persons hired since the enactment of the Immigration and Reform and Control Act (IRCA).This legislation makes it unlawful for U.S. employers to hire undocumented workers. Under the Act’s provisions, employers are required to verify the identity and work eligibility of all employees, including U.S. citizens, on Form I-9. Employers have the obligation to refuse to employ a person whose authorization and/or identity documents are unacceptable.

IRCA mandates that an ICE administrative Form I-9 audit be preceded by the written Notice of Inspection (NOI), providing for the IRCA-mandated 72-hour notice. The NOI will indicate the date, time and place that the ICE agent will arrive, and the documentation that the employer is requested to produce.

It is wise for an employer to comply with an ICE NOI. If the employer does not comply with the request to present the Form I-9, ICE may compel production by issuing a subpoena. A refusal or delay in the production of the Form I-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. Some employers have refused to comply with the administrative subpoena necessitating the agency to enforce the subpoena in federal court. Nevertheless, employers may need to rely on the negotiating skills of their attorneys to reasonably limit the scope of the ICE audit.

The employer’s compliance program should include a response plan for government contacts, including information for support staff such as receptionists and human resources staff members since these will likely be the first persons that the agents talk to. There should be a line of managerial response, so that support staff is aware of which company personnel should be called, and in what order. A company should be sure that legal counsel, whether in-house or external, is immediately notified as to the nature and details of the government contact at issue, as well.
Since ICE may ask consent to do a “survey” of the employees present at the employer’s work place, it is advisable to have counsel present when agency investigators are on the company’s premises. Note that, in the absence of consent by the employer to a survey, ICE may not make a warrantless search of the company’s premises.

ICE audits focus on whether employers have violated the prohibitions against knowingly employing unauthorized aliens and Form I-9 paperwork violations. While there is a good faith defense allowing employers ten days after agency notice to effect good faith I-9 paperwork corrections, DHS has not implemented the defense by either regulation or policy, and will need to be a subject of negotiation with ICE auditors. It is also important to note that there is also a statutory affirmative defense to the “knowingly hiring” charge when the employer is able to prove good faith compliance with the I-9 verification requirements.

After the audit a Notice of Intent to Fine (NIF) may result. When a NIF is issued, employers may request a hearing within 30 days of its service before an Administrative Law Judge of the Office of the Chief Administrative Hearing Officer (OCAHO), under the authority of the Executive Office for Immigration Review, within the Justice Department. 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. If a hearing is requested, ICE will file a complaint with OCAHO to begin the administrative hearing process which may end in settlement, dismissal, or a Final Order for civil money penalties. Employers who have faced administrative charges in the past have subsequently found their companies the focus of criminal investigations, years after the imposition of administrative civil sanctions.

While a company’s actual compliance procedures will vary depending on its size and specific industry hiring practices, these compliance suggestions are offered to employers:

1. Follow a specific hiring policy that incorporates not only the verification and record keeping provisions, but also the antidiscrimination provisions.

2. Do not request specific identity or employment authorization documents from a new employee.

3. If Forms I-9 have omissions; take immediate steps to complete the Forms I-9 now with accurate and conspicuous, albeit tardy, dates of completion.

4. Provide on-going training and resource materials for company personnel involved in the verification and record-keeping process.

5. Keep a tickler system for the reverification of employees with employment authorizations that expire.

6. Verify the documents of employees hired for three days or less should be verified prior to their first day of work to insure compliance.

7. Human resources personnel should contact legal counsel prior to an immigration-related hiring or firing.

8. Do not begin the verification process until a prospect has accepted the offer of employment.

9. Conduct regular internal Form I-9 audits at your hiring offices.

10. Use legal counsel to draft prohibitions, auditing compliance safeguards and indemnification provisions against the use of unauthorized labor when negotiating or renewing contracts involving independent contractors or subcontractors. Ensure that they comply with all federal and state labor, wage and hour laws.

11. Train your employees and managers for permissible use of independent and subcontractors. Teach them to report the suspected use of unauthorized labor by the company’s contractors.

12. Conduct contractor due diligence. Check the contractor’s company history and public records to obtain an accurate assessment of the company’s legal compliance track record.

13. Promulgate a policy prohibiting the use of any labor contractors who employ undocumented workers, subject to disciplinary action up to and including discharge.

Continue to Use I-9 Beyond June 30, 2009

2009-06-28T14:25:00.000-07:00

The CIS has advised employers to continue to use the 2009 Edition (Rev. 02/02/2009) for I-9 verifications beyond its current expiration date of June 30, 2009.

E-Verify for Federal Contractors Delayed Until September 8, 2009

2009-06-01T14:55:00.000-07:00

The litigants in Chamber of Commerce v. Napolitano, have announced that for the fourth time they have agreed to postpone implementation of the FAR E-Verify final rule until September 8, 2009. The 70 day stay of the district court’s order was requested to allow the Obama administration to review the FAR E-Verify rule.

The delayed final rule would require the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract. Under the new applicability date, any solicitations that occur prior to September 8, 2009, would not contain the contract clauses that the rule would impose.

Charles M. Miller: Another Trumpet

2009-05-06T13:36:00.000-07:00

Sometimes it is the most unlikely of persons that affect history. Such a person was Clarence Earl Gideon, another such person is Ignacio Flores-Figueroa.

By all accounts, Clarence Earl Gideon was a drifter with a long history of petty criminal convictions. Gideon was convicted of the 1961 burglary of the Bay Harbor Pool Room in Panama City, Florida, based on a tip that he was seen leaving the pool room in the early morning with bulging pockets and a pint of wine. When he was tried for the crime, Gideon asked for, and was refused appointed counsel. After representing himself, Gideon was convicted and sentenced to a five year prison sentence. From his Florida prison cell he applied for a writ of certiorari to the United States Supreme Court raising the Sixth Amendment’s right to counsel. That right to appointed counsel was confirmed by Justice Hugo Black writing for the majority in Gideon v. Wainwright. Gideon was later retried and acquitted. Gideon v. Wainwright is credited with expanding the need for the public defender system and widening the right to appointed counsel. In a subsequent case, Miranda v. Arizona, the Warren Court found the right to appointed counsel extended to a criminal police interrogation.
Generations of law students, many of them future public defenders, were inspired by GIDEON'S TRUMPET, a 1964 book by New York Times’ legal reporter Anthony Lewis, describing the story behind Gideon v. Wainwright.

In 1963, U.S. Attorney General Robert Kennedy remarked about the Gideon case: "If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed."

The second unlikely subject of a historical U.S. Supreme Court case, Ignacio Flores-Figueroa is a Mexican citizen who had worked illegally for an Illinois steel plant. In 2000, Flores provided the steel plant with a false name and false Social Security number. In 2006, he told his employer that he wanted to be known by his real name and presented counterfeit Social Security and alien registration cards that showed his real name, but the numbers on both cards were assigned to other persons.

Flores’ employer reported the name change request to the U. S. Immigration and Customs Enforcement. ICE discovered that the numbers on Flores’ new documents belonged to other people and charged him with aggravated identity theft. He was convicted and sentenced to the additional two years mandated by the law.

Flores’ case arrived at the Supreme Court the same way Gideon’s did, upon a grant of a writ of Certiorari. Justice Breyer’s decision for the 9-0 Supreme Court emphasized that the plain English of the aggravated identity theft statute required specific intent to knowingly use the identity of another person. In Flores’ case the Government could not prove that he knew that the documents’ numbers were assigned to other people.

The ultimate historical effect of the Supreme Court’s decision in Flores-Figueroa v. United States will be written later. It is clear that the estimated 8-12 millions of persons that are working in the shadows of the United States’ economy may never need to face aggravated identity theft charges because the undivided Roberts Supreme Court found the need for specific intent for such a conviction.

Millions of persons live in the U.S. without current legal status. Historians may find that the root causes of our country’s immigration problems are found in the legal immigration system. Its disrepair and disequilibrium may well be a major cause of our immigration failures.

The Obama administration has signaled that it will ask Congress to look to comprehensive immigration reform as a means to legally introduce millions of workers into the tax and entitlement systems. If the failed 2007 immigration reform efforts are any indication, there will be broad issues of disagreement as to the legalization of existing workers, border security and worksite verification responsibilities.

Nevertheless, a unanimous Supreme Court found that the Government failed to prove that Ignacio Flores-Figueroa knew that the Social Security and Alien Registration numbers he used belonged to other people. Millions of persons, like Flores-Figueroa, should not be considered aggravated identity theft felons for the reasons found by Justice Breyer. The Government may try to deport Ignacio Flores-Figueroa after he is released from federal prison in Georgia. But like Clarence Earl Gideon, his Supreme Court case will surely affect how millions of other persons are treated by the legal system. In that respect, both men changed legal history.

Accept Expired Permanent Resident Cards as Work Authorization

2009-04-10T12:18:00.001-07:00

I-9 compliance staff is reminded that the I-551 Permanent Resident Cards have an expiration date, but even though the card may be expired it is still considered "unexpired" for the purposes of I-9 verification, by CIS regulation.

TIPS FOR USING THE NEW I-9 APRIL 3, 2009

2009-03-28T16:44:00.000-07:00

Studio City immigration attorney Charles M. Miller, of the Miller Law Offices provides these timely tips for the use of the 2009 edition of the Form I-9 on April 3, 2009.

Please remind your I-9 compliance staff that on April 3, 2009 the I-9 2009 edition must be used for new employees and the reverification of employees with expiring employment authorization documents.

Just in time for that deadline, the CIS has released the Handbook for Employers, April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised Lists A, B and C reduce the number of permissible documents and prohibit the employer from accepting expired documents. The Handbook is a large file and is available for downloading from our Website’s Publications Page in Adobe format: M-274 2009.pdf

Here are some tips for using the new I-9 Form and the unexpired document rule.

1. DO remember to use the new Lists A and C for the reverification of the employment authorization documents of existing employees whose document(s) expire.

2. DO NOT reverify an expired U.S.passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

3. DO remember that the receipt rule is only for the receipt for the replacement of lost, stolen or destroyed authorization documents, not for renewals that have been filed but have not been issued.

4. DO reverify on section 3 of Form I-9; if you run out of room you may write the employee’s name in section 1 and complete section2 of a currently valid Form I-9. You can also use a new Form I-9 section 3. Remember to attach the new Form to the previously filled out I-9.

5. DO remember that after April 3, 2009 ONLY UNEXPIRED DOCUMENTS FOUND ON THE NEW LISTS A, or B and C, MAY BE VERIFIED OR REVERIFIED.

6. DO be aware that there are new tables of temporary employment authorization documents found on pages 8-9 of the M-274 Handbook for Employers (April 3, 2009 edition)that may be accepted IN ADDITION to the documents found on Lists A, B and C.

7. DO remember to complete section 1 of the Form I-9 on the first day of employment; For other than short term employees (3 days or less) the employee has 72 hours to produce the Lists A, or B and C documents, unless the employee produces a receipt for a replacement document.

8. DO NOT request specific documents; to do otherwise may violate the document abuse discrimination law.

9. ONLY E-Verify employers must require a social security number and a List B photo ID.

10. Do remember that all employees, except for short term employees, may take advantage of the receipt rule.

New Handbook for Employers Released

2009-03-24T17:55:00.001-07:00

CIS has released the Handbook for Employers April 3, 2009 edition, containing the unexpired document guidance and the revised Lists A, B and C. The revised List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are delayed in their implementation until April 3, 2009. The Handbook is available for downloading from our Publications Page in Adobe format: M-274 2009.pdf

DHS had published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). The Interim rule had been scheduled to have become effective on February 2, 2009.

Employers are reminded to use the I-9 2007 edition
until the April 3, 2009 effective date. On that date the I-9 2009 edition must be used. We advise employers not to use the CIS 2007 Website version at this time, as it erroneously links to the 2009 form which should not be used until April 3rd.

2009-03-15T12:15:00.000-07:00

Administration Delays I-9 Rule

Use the 2007 I-9 Edition Until April 3, 2009

DHS has published a notice that the CIS is delaying the implementation of the I-9 Interim rule for 60 days or until April 3, 2009. 74 Fed. Reg. 5621(Jan. 30, 2009). DHS is also extending the comment period until March 4, 2009. The Interim rule had been scheduled to have become effective on February 2, 2009.

The Interim rule's List A, B and C provisions reduce the number of permissible documents and prohibit the employer from accepting expired documents. The rule also provides minor changes to the Form I-9 to implement these changes. These changed lists and the unexpired document rule are similarly delayed in their implementation until April 3rd.

The delay in the effective date of the Interim rule is due to the White House memorandum which asked for the time to allow the Obama administration to consider the rule’s provisions. The American Immigration Lawyers Association had called on the administration to delay and reconsider the rule's effect on employers, based on its omissions and inconsistencies with other statutes and regulations.

E-Verify for Federal Contractors Delayed Until May 21, 2009

The U.S. Chamber of Commerce has announced that the Acquisition Councils have agreed to postpone implementation of the FAR E-Verify final rule until May 21, 2009.

The January 20, 2009 memorandum from White House Chief of Staff Rahm Emanuel, ordering a 60 day moratorium on pending regulations awaiting effective dates, is cited as the authority for the delay to allow the Obama administration to review the FAR E-Verify final rule’s legal basis.

The delayed final rule would require the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract.

Under the new applicability date, which is scheduled to be published in Friday’s Federal Register, any solicitations that occur prior to May 21, 2009, would not contain the contract clauses that the rule would impose.

April 1, 2009- First Authorized Receipt Date for H-1B Petitions

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 first date that H-1B petitions are accepted by the USCIS for employer filing for 2009 employment is April 1^st.

Advanced planning is necessary because the competition for the 58,200 H-1B numbers is keen. In 2008, a USCIS random selection (lottery) for successful petitions was necessary. There was a similar lottery needed for the additional 20,000 H-1B numbers for beneficiaries with U.S. advanced degrees.

Immigration Employment

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

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

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

USCIS Document Matrix Useful I-9 Reference for Employers

OCAHO Reduces Paperwork Penalties for Small Employer

Video Archive-Stanford Law School Worksite Immigration Compliance Symposium

Take an I-9 Auditing IQ Test

Time to Upgrade Your Company's Immigration Compliance Program

Handbook for Employers Updated

Haiti receives TPS Redesignation

The Stanford Law School Worksite Immigration Compliance Symposium

Stanford Law School Worksite Immigration Compliance Symposium

USCIS Publishes the Form I-9 Unexpired Document Final Rule

Social Security Resumes Sending No-Match Letters

New from the American Bar Association: Immigration Compliance Auditing for Lawyers

Employer Immigration Employment Date Alert: April 1, 2011 begins the H-1B filing season

New Adjustment of Status Version of EAD (Form I-766) Card Includes Advance Parole

Is Your I-9 Audit Notice in the Mail?

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

Evaluate Your Employer’s Homeland Security Immigration Compliance Program

Recovery Hiring? Don’t Forget to Update Employer Immigration Compliance

USCIS Releases the Handbook for Employers January 5, 2011 edition

E-Verify Connection- the new USCIS newsletter

Homeland Security Seizes Business Assets for Immigration Hiring Violations

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

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

Is Employer Certification an Inevitable Component of Comprehensive Immigration Reform?

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

Electronic I-9 Final Rule Allows Employer Flexibility

Administration Increases Criminal Prosecutions, Border Enforcement

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

ICE 5-year Plan Includes Hiring Additional Auditors

Politico: Democrats Talk Tough on Immigration

Certain Nonimmigrant Visa Application Fees Increased

USCIS provides TPS Guidance to Employers and Employees

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

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

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

Kuck and Miller Speak on Immigration Enforcement at PLI Immigration Institute

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

Has your company been ICED?

Successful H-1B Petition Strategy Requires Planning

2010 H-1B Cap Reached

Up in the Air : 2010 H-1B Numbers almost Used Up

DHS Announces New Wave of Critical Infrastructure I-9 Audits

From AILA Infonet: "Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012

No-Match Rescission Leaves Matter in Limbo

EEOC Brings 4 National Origin Discrimination Cases

Federal Contractor E-Verify Requirement Goes Forward

CCH: Far E-Verify Rule to Start September 8, 2009

Use Either of the 2009 Form I-9 Versions

IMMIGRATION REFORM NOW

IMMIGRATION LAW IN THE WORKPLACE

CCH White Paper: DHS’s refocused worksite enforcement strategy targets employers

Napolitano: No-Match Rule to be Rescinded

Alert: Immigration Audit Policy Change

Continue to Use I-9 Beyond June 30, 2009

E-Verify for Federal Contractors Delayed Until September 8, 2009

Charles M. Miller: Another Trumpet

Accept Expired Permanent Resident Cards as Work Authorization

TIPS FOR USING THE NEW I-9 APRIL 3, 2009

New Handbook for Employers Released