Category: Immigration

Border Security, Economic Opportunity, and Immigration Modernization Act of 2013

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The first major immigration proposal in several years contains sweeping changes, with the president potentially signing a version by mid-June.

On April 17, a bipartisan group of senators known as the “Gang of Eight” introduced the first major immigration proposal in several years, aimed at comprehensively overhauling the nation’s immigration laws. The group of lawmakers—Senators Charles Schumer (D-N.Y.), John McCain (R-Ariz), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.)—met in numerous closed-door sessions over the last several months to hammer out differences on a wide range of issues, from border security to H-1B program changes. The 844-page proposal, S. 744, can be viewed here.

Hearings on the bill will begin on April 19, and the legislation could be marked up as early as May. Assuming the Senate approves the bill by a sufficiently wide majority, and if there are no major obstacles in the House of Representatives, President Barack Obama could sign a version of comprehensive immigration reform by mid-June. Most of the provisions of the bill would take effect 180 days after the bill is signed by President Obama.

The Senate bill contains sweeping changes that are difficult to distill completely in a summary. Moreover, it is important to bear in mind that any final bill that Congress sends to President Obama for signature may contain major alterations from the Senate proposal. However, some of the major highlights of the Senate bill are provided below.

Border Security and Legalization

  • S. 744 provides for the creation of a registered provisional immigrant (RPI) program to legalize undocumented immigrants who have been physically present in the United States (except for certain absences) since December 31, 2011. Certain individuals who were present in the United States before that date but who were deported for noncriminal reasons may also apply, provided they have family members living in the United States. The spouse and minor children of an applicant for this program may apply, provided they meet the requirements. In order to be eligible, an applicant must not have been convicted of a serious crime, must pass a background check, must pay any assessed tax liability, and must pay application fees and a $500 fine. Initial registration will be valid for six years and subject to renewal. An RPI will receive unrestricted work authorization and travel permission. An employer who knows that an employee has applied for RPI status will not be in violation of the law if the employer continues to employ the applicant while the application is pending.
  • RPIs will be permitted to become lawful permanent residents (LPRs) (green card holders) after 10 years, provided that certain border security milestones are reached and current employment and family immigration backlogs are cleared. The proposal requires the secretary of the U.S. Department of Homeland Security to develop a “Comprehensive Southern Border Security Strategy” and a “Southern Border Fencing Strategy,” and both must be operational before RPIs may become LPRs. RPIs may become citizens after having been LPRs for three years.
  • Undocumented individuals who (i) entered the United States before the age of 16, (ii) completed high school or the equivalent, and (iii) completed at least two years toward a bachelor’s degree or served in the U.S. military for four years may obtain RPI status and apply for permanent residence after five years without penalties or border security triggers. These individuals may also apply for citizenship as soon as they obtain their green cards. This provision is commonly known as the DREAM Act.
  • Undocumented agricultural workers who can demonstrate that they worked a minimum of 100 work days or 575 hours in the two years prior to enactment may be eligible for a “Blue Card,” and undocumented agricultural workers who work for at least 100 days a year for five years or 150 days a year for three years may become LPRs.

Changes to Legal Immigration

  • S. 744 proposes to create two “merit-based” immigration systems. These systems will exist in parallel with the current employment and family-based systems, as amended by the bill. “Merit-based points track one” will set aside 120,000 immigrant or permanent resident visas annually (with a possible increase up to 250,000) for individuals who can demonstrate that they have sufficient points to qualify. Points will be awarded for factors such as education, achievement, employment, family in the United States, and length of residence. Half of the points-based visas will be for high-skilled workers and half will be for lesser-skilled workers. “Merit-based track two” will be a system for allocation of immigrant visas to clear out the backlog of long-pending employment-based and family-based cases filed prior to enactment.
  • S. 744 proposes to eliminate the per country quota limits on employment-based immigrant (green card) visas. This provision will benefit nationals of India and China who are disproportionately affected by these limits due to the large number of immigrants who come to the United States from these two countries. The bill will also increase from 7% to 15% the per country quota limits for family-based immigrants.
  • The diversity visa lottery will be eliminated.
  • Spouses and children of LPRs will be considered to be immediate relatives and will be eligible to immigrate immediately to the United States.
  • The sibling category of family immigration will be phased out in 18 months.
  • A new temporary visa, the V visa, will allow families with approved immigrant petitions to come to the United States temporarily while awaiting final permanent residence processing.
  • Certain categories will be exempt from the annual cap on permanent employment-based immigration. The exempted groups include spouses and children of employment-based visa applicants, foreign nationals with extraordinary ability, outstanding professors and researchers, foreign nationals with doctoral degrees, and certain foreign physicians.
  • Foreign nationals with master’s degrees in science, technology, engineering, or mathematics (STEM) will be exempt from labor certification. Note that the list of STEM degrees in the current proposal does not include the life sciences.
  • The EB-5 program, which grants green cards to certain investors, will be permanently reauthorized. Other special programs for doctors and religious workers will also be reauthorized.

Employment Verification

  • S. 744 provides for the replacement of Form I-9 with a new form, which includes a reduction in the number and types of acceptable identity and employment eligibility documents.
  • A new mandatory electronic Employment Verification System (EVS) based on the current E-Verify system will include an enhanced photo tool that incorporates U.S. Citizenship and Immigration Services, State Department, and enhanced driver’s license photos. Use of the system will be required for all employers, and the system will be phased in over a five-year period, based on the size of the employer:
    • Employers with more than 5,000 employees: two years after regulations are published
    • Employers with more than 500 employees: three years after regulations are published
    • All other employers: no later than four years after regulations are published
    • Critical infrastructure employers: no later than one year after regulations are published
  • S. 744 expands and clarifies employer good-faith defenses for paperwork and de minimis violations. At the same time, the proposal contains significant increases for the following: civil penalties for violations based on knowingly violating the unlawful employment provisions or the employment verification provisions of the act; criminal penalties for egregious violations of the act combined with federal wage and hour or Occupational Safety and Health Administration (OSHA) violations; civil and criminal sanctions for pattern or practice violations combined with federal wage and hour or OSHA violations; and employer sanctions for unlawful discrimination on the basis of national origin or citizenship or for unfair immigration-related employment practices.
  • Most state and local government laws that seek to sanction employers for the employment of unauthorized aliens will be preempted, but states will be permitted to tie licensing authority to the proper use of EVS.
  • The Social Security Administration will be required to develop a new fraud-, tamper-, and identity theft–resistant Social Security card within five years of enactment.

Changes to Temporary Immigration

  • S. 744 will increase the annual cap on new H-1B petitions starting in the 2015 fiscal year from 65,000 to 110,000 and will allow this cap to be increased to a maximum of 180,000 new petitions annually, based on a “high skilled jobs demand index.” The 20,000 cap for holders of advanced degrees from U.S. universities will be replaced with a 25,000 cap for holders of advanced degrees in STEM fields from U.S. universities. The bill also will impose new recruiting and nondisplacement requirements on all H-1B employers.
  • Limits will be placed on the number of H-1B and L-1 workers an employer may employ. If the employer employs 50 or more employees, the percentage of its workforce comprising H-1B workers may not exceed 75% in 2015, 65% in 2016, and 50% after 2016 (“intending immigrants” will not be included in these calculations).
  • H-1B “dependent” employers of H-1B workers (generally, employers whose H-1B workers amount to 15% or more of the total workforce) will have new stringent wage obligations, increased filing fees, additional recruitment obligations, and a prohibition on “outplacement” of H-1B workers.
  • Certain H-4 spouses of H-1B nonimmigrants will be granted employment authorization.
  • “Deference” will be granted to prior approvals of H-1B and L-1 petitions. This means that extension petitions filed by the same petitioners for the same employees should not be denied absent a finding of material error, changed circumstances, or new material information.
  • Terminated H-1B employees will be granted a 60-day grace period from termination, during which they will be considered to be in legal status.
  • Visa revalidation (obtaining a visa renewal) while remaining in the United States will be made available to A, E, G, H, I, L, N, O, P, R, and W nonimmigrants.
  • A new $500 “STEM education and training” fee will be payable for labor certification applications.
  • A prohibition on the “outplacement” of L-1 workers will be introduced.
  • The requirements for approval of an L-1 petition for employment at a “new office” will be significantly heightened.
  • “Dual intent” will be permitted for F-1 students, removing the prohibition on immigrant intent for such students.
  • Portability, or the ability to accept employment with a new employer upon the filing of a nonimmigrant petition, will be made available to O-1 nonimmigrants as it is currently for H-1B nonimmigrants.
  • For most temporary work visa categories, employees in these categories may continue to work for the same employer during the pendency of any extension of stay.
  • S. 744 will extend visa eligibility based on Free Trade Agreements to nationals of Ireland (E-3 visa) and Korea (E-5 visa) and will allow the president to extend eligibility to nationals of other countries upon signing Free Trade Agreements in the future with such countries (E-4 visa). Unlike the E-3 visa classification currently available to nationals of Australia, which is reserved for persons with bachelor’s or higher degrees, the new E-3 visa for Irish nationals will be available to non-degreed individuals. The bill will also provide a special exemption for all E visa applicants who have previously violated U.S. immigration law, making it easier for such persons to obtain a waiver of inadmissibility.
  • A new visa category, W or new worker visa, will be created. This will be available to lesser-skilled foreign workers performing services or labor for a registered employer in a registered position (possibly excluding “computer occupations”) and will be valid for three years, with extensions available in three-year periods. 20,000 W visas will be available initially; this will be increased to 75,000 within four years, with an increase of up to 200,000 being available based on various indices. W workers working in “shortage occupations” will be exempt from the cap. Spouses and children of W nonimmigrants will be granted employment authorization. W-2 and W-3 visa categories will also be created for temporary agricultural workers to replace the H-2A program. These categories will not allow spouses and children to accompany the worker.
  • Special visa categories will be created for Canadian retirees and other retirees who purchase property, but who will not work, in the United States.
  • The INVEST nonimmigrant visa will be created. This will be available to overseas entrepreneurs who plan to start their own companies in the United States and who can demonstrate that at least $100,000 has been invested in the relevant business or that such a business has generated no fewer than three jobs and $250,000 in revenue. The INVEST visa will be valid for three years and may be extended if the entrepreneur can meet certain job creation and revenue benchmarks. An INVEST immigrant visa (green card) will be made available if the entrepreneur can meet certain job creation and revenue benchmarks.

As mentioned above, S. 744 will likely go through many changes as it moves through Congress in the legislative process. We will continue to monitor and inform our clients of new developments on this proposed legislation.

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“Gang of Eight” Senators Introduce Comprehensive Immigration Reform Legislation

GT Law

On April 17th, the group of Senators known as the “Gang of Eight” introduced the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, a comprehensive immigration reform bill, in the U.S. Senate. This bipartisan measure includes significant and wide-ranging changes to the nation’s current immigration system, including a path to citizenship for undocumented immigrants and key structural changes to temporary visas and employment verification requirements, as well as a new visa for low-skilled labor. Below is a summary of the key changes proposed in the new legislation, was also presented by the “Gang of Eight” in a press conference today. Greenberg Traurig will continue to monitor developments surrounding comprehensive immigration reform and provide additional updates about issue-specific proposals as we continue to assess the proposed changes contemplated by this bill.

Legalization for Undocumented Immigrants

The proposed legislation would permit unlawfully present individuals who entered the U.S. on or prior to December 31, 2011 to obtain Registered Provisional Immigrant (RPI) status. Such individuals would need to pay a penalty and back taxes. However, they would be permitted to apply for Legal Permanent Resident (LPR) status after ten years as well as eventual naturalization. Agricultural workers and DREAM Act-eligible applicants would receive the benefit of expedited eligibility for the benefits above.

Family-Based Immigration

The proposed legislation would transfer the FB-2A visa category applicable to the spouses and children of U.S. Legal Permanent Residents to the FB-2A category currently in effect for the immediate relatives of U.S. citizens, eliminate the FB-4 category for the siblings of U.S. citizens, and limit the age of eligibility for the married children of U.S. citizens to 31 years old. The bill would also reinstate the V visa for the spouses and children of Lawful Permanent Residents.

Employment-Based Immigration

The proposed legislation would exempt EB-1 immigrants, individuals with doctoral degrees, physicians who have completed the foreign residency requirements and derivatives from the annual quota. A new EB-6 category for certain classes of entrepreneurs would also be introduced.

H-1B Non-Immigrant Visas

The proposed legislation would increase the current annual quota of 65,000 H-1B visas to 110,000, with a yearly ceiling of 180,000 visas. The bill would increase the number of visas available to holders of advanced degrees from the current 20,000 visas to 25,000, with the caveat that this allotment be allocated toward STEM graduates only. The H-1B application process would also undergo major structural changes, including the introduction of a recruitment requirement for all Labor Condition Applications on a website managed by the U.S. Department of Labor, a non-displacement attestation, and a change to formula for calculating the prevailing wage. Significantly, H-4 dependents would also have access to employment authorization and H-1B holders would enjoy a 60-day grace period to find new sponsorship after termination.

Low and Lesser Skilled Labor

The new legislation aims to create a W visa for lesser-skilled non-agricultural workers (W-1), temporary agricultural workers who perform work under a written contract (W-2), and “at-will” workers who receive a full-time employment offer in an agricultural field (W-3). The new W visa program would supplant the current H-2A agricultural worker program.

Immigration Compliance

The new legislation would make E-Verify, the federal government’s Web-based employment eligibility verification system, mandatory for all employers across the nation. The phase-in period, ranging from 90 days to 4 years, would vary according to the company’s number of employees. In addition, the bill includes language indicating that employers will be presumed to have knowingly hired an unauthorized worker if they do not verify the individual’s work authorization via E-Verify after their mandatory enrollment date. The new bill would also permit employers to utilize a three-day grace period for re-verifying the work authorization of employees with expired work authorization. It also calls for the Social Security Administration (SSA) to create tamper-resistant Social Security Cards to combat document fraud.

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Senate Immigration Bill To Impact Business, Technology and Defense Sectors

Barnes & Thornburg

On April 17, 2013, a bipartisan group of U.S. Senators known as the “Gang of Eight” introduced an immigration bill entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

The bill includes provisions that substantially increase the number of visas for highly-skilled workers, creates a new visa category for lower-skilled workers, eliminates the backlog for employment-based immigration, and authorizes significant resources to achieve border security.

The bill aims to increase the annual cap of certain employment-based nonimmigrant visas (H-1B) from 65,000 to 110,000 and the number may increase up to 180,000 depending on labor demands and the unemployment rate. In order to ensure that American workers are not displaced by H-1B workers, employers will continue to be required to pay the prevailing wage to H-1B workers and it has been proposed that the prevailing wage system be strengthened. Also in fiscal year 2014, companies will be banned from bringing in additional workers if more than 75 percent of their workers are H-1B or L-1 employees. The bill also provides for dual intent visas for all students who come to the U.S. on a bachelor or advanced degree program.

To ensure the U.S. has sufficient lower-skilled workers, the bill creates a new nonimmigrant category known as the W-Visa. Eligible recipients would be immigrants who come to the U.S. to perform services or labor for a registered employer and for a registered position. Beginning April 1, 2015, unless the Secretary of Homeland Security extends the start date, the maximum cap for four years would be 75,000 visas.

The bill proposes to exempt from the annual numerical limits multinational executives and managers; immigrants of extraordinary ability in the sciences, arts, education, business, or athletics; and doctoral degree holders in the science, technology, engineering and mathematics (STEM) fields.

The bill allocates a significant number of all employment-based visas to individuals holding advanced degrees in STEM fields, in particular. The bill also creates startup visas for foreign entrepreneurs seeking to establish a company in the U.S.

The bill provides $3 billion to implement the Comprehensive Southern Border Security Strategy for achieving and maintaining effective control in all high risk border sectors along the southern border. The funds will be used for acquiring, among other things surveillance and detection capabilities developed or used by the U.S. Department of Defense; fixed, mobile, and agent portable surveillance systems; and unmanned aerial systems and fixed-wing aircraft and necessary and qualified staff equipment to fully utilize such systems.

The bill permits undocumented immigrants, who entered the U.S. before December 31, 2011 and who do not have a serious criminal record, to apply for a Registered Provisional Immigrant (RPI) status. This would permit an individual to work legally in the U.S. for any employer. RPI status would last for a 6-year term that is renewable if the worker has not committed any acts that would render the worker deportable.

The Senate bill is likely to undergo changes as other U.S. Senators and constituents weigh in on this important bill. A House bill is also expected to be unveiled soon. If the bills can pass their respective chambers, then bicameral negotiations would begin in an attempt to pass a final comprehensive immigration reform bill for the President to sign into law.

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Business Groups Applaud Expected Compromise on Comprehensive Immigration Reform

GT Law

The Essential Worker Immigration Coalition (EWIC)*, a coalition of businesses, trade associations, and other industry organizations concerned with the shortage of lesser skilled and unskilled labor, and the TechServe Alliance, an industry group that represents IT & engineering interests before the U.S. Congress and other policymakers, have recently released statements applauding the bipartisan effort to craft a comprehensive immigration reform bill. The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which many expect will be formally introduced shortly, was spearheaded by the “Gang of Eight” – namely Senators Rubio, Flake, McCain, Graham, Schumer, Menendez, Bennet and Durbin – and includes proposals for granting legal status to undocumented immigrants, requiring all U.S. employers to use an electronic employment eligibility verification system, creating a new less-skilled worker visa program, and permitting IT staffing firms to retain access to the H-1B visa program.

To view a summary of the provisions included in The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, please click here. To read EWIC and TechServe Alliance’s statements about the new legislation, respectively, please click here and here.

* Laura Foote Reiff, Co-Chair of Greenberg Traurig’s Business Immigration and Compliance practice, is a co-founder of EWIC.

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U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance

The National Law Review recently published an article, U.S. Citizenship and Immigration Services (“USCIS”) Form I-9 Finally Makes Its Appearance, written by W. Chapman Hopkins of McBrayer, McGinnis, Leslie and Kirkland, PLLC:

McBrayer NEW logo 1-10-13

U.S. Citizenship and Immigration Services (“USCIS”) just announced the long-awaited new Form I-9, Employment Eligibility Verification.  Although the previous form expired on August 31, 2012, employers have continued using the previous form pending the issuance of the revised form.

As before, all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including citizens and non-citizens. The form requires input from both the employee and employer (or an authorized representative of the employer). Although the new form is largely substantively the same, several stylistic changes were made in order to make it easier to read and more user-friendly.

For example, the instructions are clearer and there are new distinct data fields for employee information. The entire document consists of nine pages, with only two of these (pages 7 and 8) requiring completion. When providing the form to employees to fill out, however, it is important to provide the entire form so that they may read all instructions.

If your business maintains an electronic I-9 system, you should receive an update from your vendor about implementation. If you use paper versions, you can access the form here. It is a fillable PDF file, but may also be completed by hand. Despite only two pages requiring information, the form in its entirety should be kept on file.

Employers can start using the new form immediately, but must use it after May 7, 2013, as the old form will no longer be accepted after that date. Failure to use the new form could result in fines and penalties. Remember that required government forms are free, so you should never have to pay to be in compliance.

The USCIS provides in-depth detail about Form I-9, however government instruction is not legal advice.

© 2013 by McBrayer, McGinnis, Leslie & Kirkland, PLLC

USCIS Correction: Most Employers Must Complete English Version I-9

Varnum LLP
On March 12, 2013 the USCIS announced the new Form I-9 is available and may be completed in English or Spanish. Today, March 13, 2013, USCIS clarified that Spanish I-9 is available for completion only by Puerto Rico employers.
USCIS incorrectly announced full use during a teleconference but has now clarified onwww.USCIS.gov that the Spanish new form I-9 may not be used by employers (except Puerto Rico employers). Employers may continue to use the Spanish form for reference, but the English version must be completed.

The new Form I-9 is available in English and Spanish. In addition, USCIS has published aHandbook for Employers to provide guidance for completing the new Form I-9.

Employers are required to use the new Form I-9 beginning on May 7, 2013, but it may be used immediately. USCIS will accept prior versions of Form I-9, “(Rev. 08/07/09) Y” and “(Rev. 02/02/09) N”, until May 7, 2013.

Impact of Sequester on Immigration-Related Government Services

The National Law Review recently featured an article by Eric S. Bord, Lisa Stephanian Burton, Tracy Evlogidis, Malcolm K. Goeschl, Eleanor Pelta, and A. James Vázquez-Azpiri of Morgan, Lewis & Bockius LLP regarding Sequester and Immigration:

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The automatic spending cutback is expected to result in diminished immigration-related services.

It is anticipated that the sequester (the automatic spending cutback that went into effect on March 1, 2013) may result in diminished immigration-related services provided by federal departments and agencies, as outlined below.

The U.S. Department of State (DOS), which is responsible for the adjudication of U.S. visas at consular posts abroad, may experience significant delays in the visa adjudication process, particularly at high-volume posts in India and China. In its press briefing on February 27, 2013, DOS noted that it is difficult to anticipate exactly how the sequester will impact delays at consular posts in each individual country. Nevertheless, foreign nationals should anticipate the possibility of considerably longer wait times when applying for U.S. visas and should plan ahead to minimize the impact of visa service delays to travel.

U.S. Customs and Border Protection, which conducts inspections of individuals arriving at U.S. ports of entry, may experience delays in the inspection of arrivals at U.S. ports of entry. Individuals traveling outside the United States should anticipate possible delays during inspection upon their return.

The U.S. Department of Labor (DOL), which processes prevailing wage determinations, Program Electronic Review Management (PERM) labor certifications, and labor condition applications (LCAs), may also experience delays in processing times as a result of the sequester. DOL certification of H-1B LCAs is governed by a regulation that mandates a decision within seven days of filing. It is therefore presumed, at the present time, that DOL will honor its legal obligation and not permit the sequester or any related budget cuts to impact the timing of LCA certification.

U.S. Citizenship and Immigration Services (USCIS), which is responsible for adjudicating immigrant and nonimmigrant petitions and applications, funds its services largely through filing fees rather than congressional appropriations. As a result, the likelihood of USCIS processes being impacted by the sequester is less than that of other agencies.

It remains to be seen exactly how the sequester will affect these immigration-related matters. We will provide updates as developments occur.

Copyright © 2013 by Morgan, Lewis & Bockius LLP

Immigration Reform: It’s Time for a Course Correction

The National Law Review recently published an article regarding Immigration Reform written by  Susan J. Cohen with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.:

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The first two months of 2013 have seen a flurry of activity relating to immigration reform.  President Obama is pushing for comprehensive reform as are powerful factions within both the Senate and the House. And the political will and rising tide of opinion in favor of reform are making for unusual bedfellows, as exemplified by the recent joint statement of principles from the American Chamber of Commerce and the AFL-CIO.

But in this same timeframe, lawmakers anxious to change current immigration law to create new pathways for entrepreneurs and highly educated immigrants have introduced a number of bills designed for this purpose, including the Immigration Innovation (I²) Act of 2013 introduced by Senators Hath, Klobuchar, Rubio and Coons and the Startup Act 3.0, introduced by Senators Moran, Warner and Coons. These bills contain many excellent provisions that make tremendous sense, addressing shortcomings and deficiencies in our current law. For example, the I² bill would significantly increase the H-1B cap and would exempt graduates of U.S. advanced degree programs from the cap. It would authorize employment for the spouses of H-1B workers and would make it easier for those workers to move from one company to another.  It would also streamline the green card process and eliminate the enormous backlogs in the current system.  The Startup Act 3.0 would provide a new and much-needed work visa for foreign entrepreneurs who can attract angel or venture funding to their new U.S. ventures.

Our immigration laws are so broken and outdated that only comprehensive reform will correct  our course.  And the lawmakers who have introduced bills such as I² and the Startup Act 3.0 clearly hope that their prescriptions for specific improvements will be incorporated into any final comprehensive bill. But should comprehensive reform prove elusive, at a minimum Congress should pass some version of these bills, to attract and retain the best and the brightest of our foreign students and entrepreneurs, and help to boost and strengthen the U.S. economy.

©1994-2013 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

ICE Worksite Fines, No Thaw in Sight for 2013! (Immigration and Customs Enforcement)

The National Law Review recently published an article regarding Immigration Compliance written by Dawn M. Lurie with Sheppard, Mullin, Richter & Hampton LLP:

Sheppard Mullin 2012

Just how much money did Immigration and Customs Enforcement (ICE) fine US companies last year? While we don’t have an exact number confirmed by the government, we do know the fine amounts skyrocketed to over $10 million according to data released by ICE in response to a request from the Associated Press. What’s more important is the fact that ICE issued over 3,000 Notices of Inspection (NOI) in FY 2012. An NOI initiates a government administrative inspection of a company’s Form I-9s. NOIs are considered administrative tools which are used to assist in criminal investigations. We also know that 238 company managers were arrested last year in light of these investigations. Under the Obama administration, civil administrative audits are just one of many tools ICE is using to reduce the demand for unauthorized unemployment and protect opportunities for U.S. workers. This enforcement strategy also includes the expanded use of civil penalties, employer audits, and debarment. While ICE has told stakeholders it no longer tracks the conclusion of an investigation or whether a matter is being pursued before the Office of the Chief Administrative Hearing Officer (OCAHO), we know the Agency does track how many Notices of Inspection (NOIs), Notices of Fines, Final Orders, and Debarments it issues. The scope of this Alert does not cover debarments for federal contractors, but it should be noted that ICE has rapidly expanded the program and continues to refine the suspension and debarment process.

With comprehensive immigration reform on the horizon and President Obama’s proposal calling for “cracking down on employers hiring undocumented workers,” we can expect at least another 3,000 audits in 2013 (bets anyone?). ICE is fairly predictable and consistent in its approach to worksite enforcement. In fact, it is likely we will see the first round of audits by mid-March. While the days of “worksite enforcement actions” (AKA raids) are gone, there are many in the government that still agree with the words of Julie Myers Wood, a current proponent for comprehensive immigration reform and former Department of Homeland Security Assistant Secretary for ICE who said, “We want to send the message that your cost of business just went up because you risk your livelihood, your corporate reputation and your personal freedom.” Wood was also quoted as saying that ICE was prosecuting “individuals who have profited from hiring illegal aliens…we’re going after their houses, their Mercedes and any money that they have, as well.”

For certain, NOIs and administrative audits are something every employer needs to take very seriously. These inspections are clearly serving as examples and being used as deterrents. Again, as immigration reform heats up and the Administration focuses on effectuating a new policy, the fines are likely to increase and enforcement efforts will be stepped up. The inequities that plague the worksite program in terms of how some employers are treated verses other employers will likely be addressed during the reform process. We can also expect that once reform is effectuated there will be serious consequences embedded in the legislation, not only for employers, but also for employees that work without authorization. That said, in order toemployers to the government, and provide employers with adequate tools and discernible guidance to determine who is authorized to work and who is not.

In the meantime, the fine amounts listed below, coupled with ensuing bad P.R., legal expenses and other drains on a company involved in a worksite investigation should be high enough to catch the attention of “mom & pop” employers and the Board of Directors of public companies alike.

Specifics from four states

In numbers that were just released today, February 5th, ICE noted it fined 10 businesses in San Diego and Imperial counties more than $173,800 for hiring “unlawful” employees. In addition to listing the names of the businesses and the amounts fined the agency noted in a news release, “In fiscal year 2012, HSI conducted 151 worksite audits in San Diego and Imperial counties, compared to 86 audits the previous year and 63 audits in fiscal year 2010.”

In Massachusetts, ICE issued a total of thirty-five NOIs and ultimately fined seventeen employers for a total of $349,620. The fines hit Northern Pelagic Group (NORPEL) particularly hard with the highest amount fined in Massachusetts, $151,200. Special agent in charge (SAC) of Homeland Security Investigations (HSI) Boston Bruce M. Foucart disclosed that ICE’s investigation of NORPEL discovered 351 suspect documents, which according to Foucart “for the most part…means the employee[s] [were] illegal.”

Companies in Connecticut were fined a total of $132,584. Out of the eighteen inspections ICE conducted, ICE issued twelve fines to Connecticut companies ranging from $45,000 to $1,386. Calabro Cheese Corporation of East Haven received the highest fine of $45,000. Foucart, who has jurisdiction over this area as well, announced that the company had a “significant amount” of workers with suspect documents, along with “supporting documents that were not real or were from someone else.” Calabro’s general manager Rich Kaminski noted that ICE “led all of the people who were illegal out of [the company] on the same day.”

Rounding third on the list of fines was Maine with a grand total of $78,967. Out of the twenty-two inspections ICE conducted, eight resulted in fines ranging from $13,900 to $1,777. While substantial, these numbers represent a significant drop from ICE’s total fines of $150,000 for only six Maine companies in 2011. SAC Foucart of Boston who oversees HSI throughout New England noted that these settlements will “serve as a reminder to employers that HSI will continue to hold them accountable for hiring and maintaining a legal and compliant workforce.” Foucart expanded that employers should “take the employment verification process seriously” because ICE is expanding the number of audits it is conducting each year, focusing on employers that are “knowingly employing illegal workers.” According to Foucart, ICE will continue to target specific industries and businesses known or alleged to hire illegal workers. ICE has continued its trend of ramping up worksite enforcement efforts in the criminal arenas, as well. Last October, three individuals were arrested for unlawful employment and for conspiracy to induce illegal aliens to reside in the United States. The indictment alleges that the three owners of the Bamboo Village restaurant in Rosenberg, Texas, hired employees without completing Form I-9s or viewing identification and work authorization documents. If convicted of the conspiracy charge, the owners could face up to ten years in prison and a $250,000 fine.

In September, Micro Solutions Enterprises (MSE) and its owner both pled guilty to criminal charges resulting from a HSI investigation in 2007. As part of its plea bargain, MSE pled guiltyto one misdemeanor count of continuing to employ unauthorized workers, admitted to hiring fifty-five unauthorized workers and continuing to employ them, will pay $267,000 in civil and criminal fines, and is on a three-year probation term with implementation of “stringent measures” to ensure it is complying with hiring laws. MSE’s owner pled guilty to one felony count of false representation of a Social Security number and faces up to five years in prison and up to a $250,000 fine.

There is good news to add in at this point. A review of recent OCAHO decisions, illustrates that for the majority of those employers challenging the fine assessments ICE in 2012, the court reduced the amounts of the fines/penalties sought by the government.

The Takeaway

What is the bottom line? Take NOIs seriously. Consider while some companies get lucky with new/inexperienced auditors and agents who may not have the time or interest to pursue an investigation, other special agents remain aggressive. Also consider that in many instances neither ICE nor the U.S. Attorney’s office will forgive companies who they consider to be “willfully blind”. Ignoring a “problematic” work force, identity theft issues, and error-ridden Form I-9s can lead to the knowing hiring or continued employment of unauthorized workers. At the same time, if you have received a fine notice from ICE after trying to negotiate a reasonable settlement, don’t rule out a hearing before OCAHO, if the economics warrant, and the company has the appetite to challenge the fine assessment.

The message remains the same: Be proactive; review your Form I-9-related compliance; conduct internal audits supervised by experienced counsel and act on the results; do not ignore unconventional Social Security no-match notifications (such as unemployment claims of employees not working at your company) and potential identity theft issues; provide ongoing training to those individuals completing Form I-9s; seriously consider the use of E-Verify, and finally, above all else, institute a written compliance plan and establish workable policies.

Copyright © 2013, Sheppard Mullin Richter & Hampton LLP

New Student and Exchange Visitor Information System (SEVIS) Release will Address Student and Exchange Visitor Visa Overstays

Featured recently in The National Law Review, New Student and Exchange Visitor Information System (SEVIS) Release will Address Student and Exchange Visitor Visa Overstays, an article by William J. Flynn, III with Fowler White Boggs P.A.:

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A new version of the Student and Exchange Visitor Information System (SEVIS)is scheduled to release this spring. The Student and Exchange Visitor Program (SEVP), a faction of U.S. Immigration and Customs Enforcement (ICE), is developing the new release as part of a Department of Homeland Security (DHS) initiative to address visa overstays by F and M students and J exchange visitors. “Release 6.12” will enable better and more frequent data sharing between SEVIS and the Arrival Departure Information System (ADIS). As a result, SEVIS will now contain I-94 Arrival/Departure Record information, as well as passport information for students and exchange visitors who overstay their visas.

SEVIS is an internet-based system that was launched in 2002. The system allows DHS to track and monitor information related to SEVP-certified schools and international students in F and M status, along with their dependents. The U.S. Department of State (DOS) also uses SEVIS to access information related to DOS-designated visitor program sponsors and J-1 exchange visitors and their dependents. The new information-sharing technology of Release 6.12 will facilitate the efforts of both agencies with respect to overstays.

As part of the DHS initiative, DHS Secretary Janet Napolitano has also created a visa overstay working group to address the overstay of students and exchange visitors. The group will work towards creating a solution to facilitate the identification, location, and removal of students who overstay their status.

In light of these new initiatives, it is especially important for students and other nonimmigrant visa holders to maintain lawful status for the entire duration of stay in the United States. Overstaying a visa can not only jeopardize one’s eligibility for renewals and extensions, but may also negatively affect eligibility for permanent residence and other immigration options in the future. If you have questions on maintaining lawful status in the U.S., or would like more information on the new DHS student overstay initiative, please contact Bill Flynn, Board Certified Immigration and Nationality attorney.

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