Category: Immigration

Department of State Releases June 2011 Visa Bulletin

Posted this week at the National Law Review by Morgan Lewis –  details on the June 2011 Visa Bulletin:

The U.S. Department of State (DOS) has released its June 2011 Visa Bulletin.The Visa Bulletin sets out per country priority date cutoffs that regulate the flow of adjustment of status (AOS) and consular immigrant visa applications. Foreign nationals may file applications to adjust their status to that of permanent resident, or to obtain approval of an immigrant visa application at an American embassy or consulate abroad, provided that their priority dates are prior to the cutoff dates specified by the DOS.

What Does the June 2011 Bulletin Say?

EB-1: All EB-1 categories remain current.

EB-2: Priority dates remain current for foreign nationals in the EB-2 category from all countries except China and India.

The relevant priority date cutoffs for Indian and Chinese nationals are as follows:

China: October 15, 2006 (forward movement of 10 weeks)

India: October 15, 2006 (forward movement of 14 weeks)

EB-3: There is continued backlog in the EB-3 category. 

The relevant priority date cutoffs for foreign nationals in the EB-3 category are as follows:

China: May 15, 2004 (forward movement of four weeks)

India: April 22, 2002 (forward movement of one week)

Mexico: December 22, 2004 (forward movement of 14 weeks)

Philippines: September 15, 2005 (forward movement of three weeks)

Rest of the World: September 15, 2005 (forward movement of three weeks)

How This Affects You

Priority date cutoffs are assessed on a monthly basis by the DOS, based on anticipated demand. Cutoff dates can move forward or backward, or remain static and unchanged. Employers and employees should take the immigrant visa backlogs into account in their long-term planning, and take measures to mitigate their effects. To see the June 2011 Visa Bulletin in its entirety, please visit the DOS website at http://www.travel.state.gov/visa/bulletin/bulletin_5452.html.

Copyright © 2011 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

The Immigration Implications of Japan’s Disaster

Recently posted by guest blogger Andrew P. Galeziowski of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. – issues related to immigration  from Japan’s recent disasters: 

Just as with the earthquake in Haiti, the recent earthquake and tsunami in Japan causes not only massive physical destruction but can significantly impact and complicate an affected person’s immigration status. Japanese citizens already in the United States may be logistically unable to comply with the terms of a visa status, perhaps because their status is expiring and there is no practical way to return to Japan. Those persons residing in Japan who are seeking visas to come to the United States may find it difficult to process a visa at a U.S. Consulate due to closures, cancellations and delays. Furthermore, as some businesses continue to evacuate personnel from Japan and in some cases seeking to temporarily transfer such personnel to other offices in Asia, special processes may have been established (for example, by immigration authorities in Hong Kong) to facilitate the processing of business visas to allow for such emergency relocations.

There are several general resources affected persons can reference for additional information:

  • For Japanese nationals in the United States, for example visitors travelling under the Visa Waiver Program who are unable to depart the country before their status expiration, see the USCIS website;
     
  • For Japanese residents who may be seeking visa services through a U.S. Consulate in Japan, visit the specific Consulates website. Specific information is posted at Consular websites, for example notices regarding visa appointments in Tokyo can be found at the Tokyo Consulate’s website; and
     
  • For foreign nationals currently in Japan, visit the Immigration Bureau of Japan website for current information.

Persons affected by the Japan crisis are encouraged to contact the immigration professional with whom they normally work for specific guidance.     

Note: This article was published in the March 2011 issue of theImmigration eAuthority. 

This article was drafted by the attorneys of Ogletree Deakins, a national labor and employment law firm that represents management. This information should not be relied upon as legal advice.

© 2011, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved

ANALYSIS — U.S. Interests at Risk in Six Mideast Nations

Very comprehensive article about the U.S.’ Middle East interests posted yesterday at the National Law Review by Barbara Slavin writing for the Center for Public Integrity:

Political unrest and violence in the Mideast are unsettling to American interests in the region in the short term. Credit: Kevin Frayer/The Associated Press

For decades, politics in most of the Middle East has been frozen like a fossil in amber. Monarchies and pseudo-republics denied their people meaningful participation and representation. Aging presidents-for-life clung to power, grooming sons to replace them. Well-connected elites amassed wealth while burgeoning young populations struggled to find jobs.

The amber has shattered. Mideast dictators have fallen to people power, not U.S.-led regime change. Now the critical question is who will replace these leaders?

The end of this era could be a net-positive for the United States if more democratic governments take hold. In the short term, though, these developments bring with them potential threats to U.S. interests: safeguarding oil supplies, protecting Israel, fighting terrorism and containing the current Iranian regime. The biggest impact may be regional dynamics that curb Israel from attacking foes in Gaza, Lebanon and Iran.

With the proviso that this fateful year in the Middle East is just beginning, what follows are snapshots of six pivotal nations whose post-revolution politics and policies will impact U.S. national security:

Egypt

The most populous Arab nation, Egypt has vied with Saudi Arabia as the premier Arab ally of the United States. Once the trend-setter in Arab politics, culture and diplomacy, Egypt stagnated during Hosni Mubarak’s 30-year reign. With Mubarak’s resignation Feb. 11, a “supreme defense council” led by Defense Minister Mohamed Hussein Tantawi is leading the transition. The military has promised to submit a new constitution to a referendum and then hold elections for a new parliament and president.

Mubarak’s successor is likely to maintain the 1979 peace treaty with Israel—even if the Muslim Brotherhood, the oldest Islamic political group in the modern Middle East, gains a major share in the next government. As a nation that relies on tourism, Egypt cannot afford to renounce peace with Israel or to impose Islamic law. The Egyptian military will not want to jeopardize its supply of U.S. military hardware. However, a more democratic Egypt will not be silent if Israel attacks Gaza again as it did in 2008-2009, or Lebanon in 2006. Egypt is likely to lift a blockade on Gaza imposed after Hamas seized the enclave in 2007, making it easier for Hamas to smuggle weapons via the Sinai desert. Egypt may also restore diplomatic relations with Iran, which the U.S. will see as a blow to its containment strategy. Already, the interim government permitted an aging Iranian warship and supply vessel to transit the Suez Canal and enter the Mediterranean—the first such crossing since the Iranian revolution.

On counterterrorism, the Egyptian government is less likely to make mass arrests or to accept, via rendition, terror suspects caught elsewhere by the United States.  Bruce Riedel, a former senior National Security Council official and CIA officer dealing with the Middle East, said that a less repressive Egyptian government will benefit U.S. interests in the long term by diminishing the pool of recruits for al-Qaida. Still, the transition may be dicey. “While we may lose on the tactical level, we may gain on the strategic level,” he said.

Saudi Arabia

Saudi Arabia is the region’s great economic prize, sitting on top of one fifth of the world’s known oil reserves. King Abdullah, who has ruled officially since 2005 and de facto since 1995, is progressive in Saudi terms and has introduced a few modest reforms. Still, the upheaval nearby was sufficient for the king to rush home from Morocco, where he had been recuperating after back surgery. Reaching into his government’s deep pockets, he promised $37 billion in new government handouts to civil servants and students.

Gregory Gause, a Saudi expert at the University of Vermont, noted that major flooding in Jeddah in January which killed 10 people and caused severe property damage did not provoke mass protests. “If there was ever a time when people would take to the streets, this would have been it,” Gause said. The monarchy benefits, he said, from the fact that its opposition is divided between liberals and religious conservatives and so far remains a largely online phenomena However, last month a group of more than 100 Saudi intellectuals signed a petition for additional reforms, including an elected advisory council. Thousands of Saudis have signed onto Facebook and Twitter accounts calling for mass protests on March 11, the ninth anniversary of a fire in Mecca that killed 15 girls who were prevented from leaving a burning school without their Islamic cloaks.

Saudi security forces appear to have suppressed the main recent threat to the regime from al-Qaida, whose founder was Saudi-born. U.S. concerns focus on Saudi succession and preventing disruptions to Saudi oil production. Abdullah is 87 and in poor health; his half brother and crown prince, Sultan, is also an octogenarian and ailing. Third in line is the slightly younger Prince Nayef, the interior minister, who is not popular. The kingdom’s youth resent the stipends doled out to 7,000 Saudi princes and the foreign workers who take both high-paying and menial jobs. Saudi Arabia’s minority Shiite population, which predominates in the Eastern Province where most Saudi oil is produced, faces discrimination and has protested in the past. The Saudi leadership fears contagion from Bahrain, the scene of unprecedented political tumult in recent weeks. The two countries are connected by a 16-mile causeway.

Bahrain

Bahrain is a major concern for U.S. policymakers because of its sectarian divide and location. Not only is it linked to Saudi Arabia’s Eastern Province, but it is home to the U.S. Fifth Fleet, which guards the Persian Gulf and its precious oil traffic. The fleet also is a buffer between Iran and the region’s fragile sheikhdoms and emirates. From that base, some 3,000 U.S. military officers oversee 30 ships and 30,000 sailors.

Bahrain’s ruling al-Khalifa family badly mishandled protests that broke out Feb. 14, allowing masses of demonstrators to assemble in a roundabout called Pearl Square and then sending in troops to fire on sleeping protesters. The show of force drew worldwide condemnation and the regime has since made a series of concessions, freeing political prisoners, calling for dialogue, dismissing a few cabinet ministers, allowing a once-banned opposition leader to return from exile and permitting demonstrators to refill Pearl Square.

These gestures have not appeased the protesters. Shiite Muslims make up about 70 percent of the island state’s half million citizens and are demanding parliamentary reforms and an end to discrimination in employment, education and housing. Calls to overturn the Sunni Khalifas—or at least restore a more democratic, single-chamber parliament, which briefly existed in the 1970s—are growing. Saudi analyst Gregory Gause said King Hamad is “caught between his population and his family” which holds virtually all key government offices, including that of prime minister; Hamad’s uncle has been in that position since Bahrain’s independence from Britain 40 years ago. Given Bahrain’s sectarian divide and Iran’s proximity, Saudi Arabia and the U.S. worry about Iranian encroachment although so far Bahraini protesters have emphasized their nationalism by wrapping themselves literally in Bahraini flags.

Iran

Iranian officials from Supreme Leader Ali Khamenei to President Mahmoud Ahmadinejad and government-appointed leaders of Friday prayers have been crowing that Arab demonstrators are following a script written 32 years ago in Iran. Certainly, Tehran has enjoyed seeing the toppling of secular, U.S.-backed dictators but there is no indication that the protesters were motivated by a desire for Iranian-style theocracy. In fact, the uprisings have been marked by the absence of slogans such as “Islam is the Solution” and that old Iranian favorite, “Death to America.”  On Feb. 14 and Feb. 20, protests boomeranged back to Iran as the Green Movement that erupted following disputed June 2009 presidential elections returned to the streets of major Iranian cities. Tehran in recent days has resembled an armed camp as more demonstrations erupt.

Mehdi Khalaji, an Iran analyst at The Washington Institute for Near East Policy, said that if the Arab revolts had taken place before Iran’s post-election crisis, “Iran could have used it in the framework of its propaganda.” Now, Khalaji said, such claims look hypocritical, even laughable. In the short term, Iran may benefit from the distraction of Western policymakers. Since Jan.1, the regime has executed 120 prisoners, according to the International Campaign for Human Rights in Iran, giving Iran the dubious distinction of executing more people per capita than any other nation. While global media attention was focused on Libya, Iranian authorities on Feb. 24 arrested two opposition leaders and their wives.

Disruption of oil production in Libya and general uncertainty in the region have boosted oil prices and Iran’s revenues. Prospects for an attack on Iran’s nuclear program by either Israel or the United States have decreased as those countries focus on the instability among once-trusted Arab allies.

However, in the longer term, the Iranian regime faces major challenges. New heroes are emerging in the Arab world, supplanting Ahmadinejad, Khamenei and Lebanese protégé Hassan Nasrallah, the leader of Hezbollah. A more democratic Egypt may earn it a bigger diplomatic role, diminishing Iranian influence in Iraq, Lebanon and the Persian Gulf. In the interim, Turkey—a prosperous democratic state with diplomatic ties to all its neighbors—is a far more attractive regional model than Iran. The Iranian government must also content with a young, Internet-savvy generation, international economic sanctions, and cyber-warfare attacks on its nuclear program.

Israel

Israel can take comfort in the fact that for once, protests in the Arab world have had nothing to do with Israel, the Palestinians or Lebanon. Nevertheless, Israelis worry that successor governments in Egypt and elsewhere may be less accommodating to their actions against Arabs. A future Egyptian president will not “sit on the sidelines” if Israel decides to attack Gaza or Lebanon again, Riedel said. “The Egyptians are not going to be as passive.  This is going to be the major source of friction between Cairo and Washington.”

There is also the question of what impact the unrest will have on Palestinian governments in both the West Bank and Gaza. Palestinian President Mahmoud Abbas has promised new elections and efforts to reunify with Hamas, which seized control of Gaza in 2007. Successors to Abbas and to Palestinian Prime Minister Salam Fayyad may be less willing and capable of reaching a bargain with Israel.

The Obama administration said it remains determined to push for an Israeli-Palestinian settlement. Dennis Ross, the top White House official in charge of Middle East policy, recently said that the lesson Israel should draw from the fall of Mubarak is “the danger of getting stuck in an unsustainable status quo.” The Palestinians’ higher birth rate, the need to give new Arab leaders a stake in peace, and the increasingly sophisticated arsenals of Hamas and Hezbollah all argue for reaching a settlement with the Palestinians sooner rather than later, Ross said. However, Israeli Prime Minister Benjamin Netanyahu, already risk averse when it comes to making concessions for peace, is likely to become even more so as he waits to see what kind of government emerges in Egypt and whether any other pro-Western Arab dominos—such as Jordan—will fall. U.S. domestic politics may make it less likely that President Obama will pressure Netanyahu to give up more land for peace. One possibility is that Netanyahu might instead explore a settlement with Syria that could undercut Iranian influence and the possibility of a new Israeli confrontation with Hezbollah.

Libya

Libya is important to the United States because it is a major oil supplier to Europe, and like Egypt and Saudi Arabia, has both spawned and confronted numerous members of al-Qaida. A major U.S. concern is that Islamic fundamentalists will fill the vacuum left by Moammar Gadhafi’s brutal regime.

During his 41-year rule, Gadhafi prevented the creation of political parties. He staged phony “people’s congresses” while dictating policy behind the scenes and parceling out plum positions and business opportunities to members of his family and tribe. Whenever he sensed a threat, he reshuffled officials, leading one Libyan a decade ago to compare his countrymen to “mice in a bag” that Gadhafi would shake periodically to pre-empt opposition from organizing. Despite their lack of experience in politics or civil society institutions, Libyans in the eastern part of the country first liberated from Gadhafi’s rule are already putting together provisional governments. A pool of talented Libyans including returning exiles should be able to form a credible new administration. However, the transition is Libya has already been bloodier than in neighboring countries and there is a prospect of civil warfare between tribes and regions. Al-Qaida would likely take advantage of such chaos. Still, it is hard to imagine that Gadhafi’s successors will be worse stewards of Libyan interests or more menacing to the world at large than he has been.

Barbara Slavin has reported on the Middle East for more than three decades, and is the author of the 2007 book Bitter Friends, Bosom Enemies: Iran, the US and the Twisted Path to Confrontation.

 Reprinted by Permission © 2011, The Center for Public Integrity®. All Rights Reserved.

Ice Inspection Hits Close to Home – Guilty of I-9 Form Violations

Recently posted by Jennifer G. Parser of Poyner Spruill LLP at the National Law Review – details about a recent employer immigration fine – where the employer had a legal workforce…..

Fast Food Franchisee In Fayetteville, NC Fined Over $27,000 — Despite Legal Workforce

In a decision dated December 22, 2010, the US Department of Justice Executive Office for Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) found a fast food franchisee in Fayetteville, North Carolina, guilty of I-9 violations and fined the company $27,150. Count I alleged that the franchisee hired 11 individuals from 2006 through early 2009, yet failed to ensure that they properly completed Section 1 of the I-9 Form and/or failed itself to properly complete Section 2 or Section 3. Count II alleged that the franchisee hired 97 individuals during the same time period for whom it failed to prepare any I-9s. Penalties were sought in the amount of $1,028.50 for each violation, for a total of $111,078. OCAHO found that, based upon a visual inspection, the I-9 Forms for the 11 individuals named in Count I contained substantive violations, and no I-9 Forms could be produced for any of the 97 employees named in Count II. For reasons discussed below, OCAHO ultimately fined the franchisee $27,150, approximately 25% of the penalties sought by ICE.

Never Backdate I-9 Forms

Employers should be aware that the substantive violations found in Count I were caused in part by the ICE auditor subtly marking a Form I-9 to determine if it was later tampered with, something that the franchisee tried to do, demonstrating bad faith. In this case, the ICE auditor made “three subtle marks” to determine later whether the forms produced were backdated or completed after service of the Notice of Inspection on the franchisee in the context of the auditor simultaneously providing a sample I-9 Form and a copy of the Handbook for Employers (M-274). At that time, the ICE auditor expressly warned the franchisee’s employee not to backdate the I-9 Form if new ones were prepared. When the I-9s were subsequently reviewed by ICE, however, it was determined that they had all been completed after the Notice, and that 7 of the 11 forms were backdated with the employer attestation at Section 2 still left blank.

Factors Used by OCAHO in Setting Penalties

Turning to assessing the amount of fines to be levied, OCAHO considered the following five factors which were not given equal weight:

  • Size of the business,
  • Good faith of the employer,
  • Seriousness of the violation(s),
  • Whether or not the individuals involved were unauthorized aliens, and
  • Any history of previous violations of the employer.

 Each factor will be reviewed in light of the fines levied against the franchisee.

Size of Employer

OCAHO found the franchisee’s relatively small size to be a mitigating factor in assessing the fines. Analyzing its number of employees, OCAHO determined that despite being part of a national fast food franchise, the franchisee was in fact a small employer with a large turnover common in the fast food industry, hence the 97 former employees.

Good Faith

Any analysis of an employer’s good faith focuses first on whether or not the employer reasonably attempted to comply with its obligations prior to issuance of the Notice of Inspection. Here, OCAHO determined that:

“…there is not a scintilla of evidence that suggests [the franchisee] made any effort whatsoever to ascertain the requirements of the law…[The franchisee] made no effort at all to ascertain what the law required and lacked the reasonable diligence required: there was simply no attempt at compliance prior to the Notice of Inspection. [The franchisee’s] subsequent attempts at compliance have minimal bearing on an analysis of its good faith because conduct occurring after the investigation is over is ordinarily outside the permissible scope of consideration.”

It is important for employers to note that mistakes found in Section 1 completed by the employee can be attributable to the employer as the employer is obligated to ensure that the employee properly completes Section 1: “[The franchisee] not only made no effort at all to ascertain what the law requires or to conform its conduct to it, it also attempted deception by permitting employees to backdate I-9 forms, and this is sufficient to support an assessment of bad faith.”

Further, the franchisee’s belated and disingenuous attempt to complete the I-9s by failing to attest to its own compliance in Section 2 implies an avoidance of liability for perjury.

Seriousness of the Violation(s)

OCAHO noted that a failure to prepare an I-9 at all is among the most serious of paperwork violations. As described above as a demonstration of a lack of good faith, OCAHO found the franchisee’s failure to complete Section 2 to imply an avoidance of liability for perjury.

Employees were not Unauthorized and Employer had no History of Previous Violations
None of the employees whose I-9s were involved was an unauthorized to work, nor had the franchisee a history of violations, probably mitigating the fines levied.

Mitigating or Exacerbating Factors in Assessing Penalties

Here, OCAHO took into account the depressed state of the economy and the difficulty any displaced employee would have in finding other work and reduced the penalties accordingly. As a result, the franchisee was directed to pay $27,150 in civil money penalties and not the $111,078 sought by ICE.

Conclusion

Employers should be aware that they will be blamed by ICE and penalized accordingly for failing to ensure their employees are properly completing Section 1, for permitting backdating or tampering with incomplete or missing I-9s for failing to complete its Section 2. Merely employing a legal workforce will not absolve an employer from imposition of penalties if Section 1 of its I-9 Forms are not meticulously completed by the employee on day one of hire for pay and Section 2 by the employer by day three.  

© 2011 Poyner Spruill LLP. All rights reserved.

Verification Two-Step: One step forward, one step back—A review of the GAO report on the progress made to improve E-Verify

Recently posted at the National Law Review – Kevin Lashus and Maggie Murphy of Greenberg Traurig provide some great insight(s) on the recently filed GAO Report on E-Verify and why employers should be concerned: 

Washington, D.C. (January 19, 2011) —  On January 18, 2011, the US Government Accountability Office (GAO) released its December 17, 2010 report entitled, “Employment Verification: Federal Agencies Have Taken Steps to Improve E-Verify, but Significant Challenges Remain.”  Provided is a summary of the GAO’s findings, and where we believe USCIS’ Verification Division may move to implement modifications to the existing system based upon the GAO’s recommendations.

The report is a summary of the review GAO conducted to assess how USCIS and SSA have been able to ensure accuracy of the verification process in E-Verify and whether either (or both) have taken measures to combat fraud.  Specifically, GAO examined efforts taken by both agencies to (1) reduce tentative nonconfirmations (TNCs), (2) safeguard private personal information submitted, and (3) prepare for the increased use of the program that may result from either increased state and local legislation (executive action) or a federal mandate.

Two of the conclusions of the report should be of great concern to employers:

(1) Because TNCs are more likely to affect foreign-born employees, the issuance of false TNCs (TNCs issued commonly because names are recorded differently on various ID and work authorization documents) will likely lead to increased allegations of discrimination; and

(2) E-Verify remains exceedingly vulnerable to identity theft and employer fraud.

Some of the other significant findings:

  • Employees are limited in their ability to identify the source of and how to correct information in the DHS and SSA databases (including the significant delay in the correction process—commonly taking an average of 104 days).
     
  • Long-term cost associated with the administration of the E-Verify program and complementary national systems and SSA databases do not reliably depict current budgetary allocations for the costs of administration.
     
  • Securing sufficient resources to effectively execute the program plans for the future has not been anticipated and may not be properly anticipated in budgetary projections.
  • Recommended fixes to the program will result in increased transactions costs, including the resolution of false TNCs, administrative leave for employees to allow them to resolve erroneous mismatches, and additional training costs to educate the employees about reducing the likelihood of name-related, erroneous TNCs.
  • USCIS should consider providing an employee-accessible portal that would allow employees to correct inaccuracies or inconsistencies within DHS databases.
     
  • USCIS and SSA should finalize the terms of the service-level agreement that defines the requirements of SSA to establish and maintain the capacity and availability of its system components.
  • USCIS should consider a budget for the life-cycle cost of the program that reflects the four characteristics of a reliable estimate consistent with best practices—essentially, that long-term there is enough resources to ensure the program is comprehensive, well-documented, accurate, and credible.

Notwithstanding the findings, there is a clear message contained in the report:  Comprehensive reform is required to root-out the incidence of document fraud. The use of biometrics in identification/authorization documentation is the only likely cure of the ills currently inherent in the system. 

Until that time, USCIS must reallocate resources to address fraud issues—doubling the number of monitoring and compliance staff to oversee employers’ use of E-Verify AND allocating resources to recognize and correct mismatched information in the various DHS databases. 

In other words, instead of addressing the defects of the verification paradigm, the Government is allocating additional resources to address problems with the process that cannot be cured with the current system.  Notably,

  • Senior E-Verify program officials reported that the Monitoring and Compliance Branch is limited in its ability to fully identify patterns and trends in the data that could signal employers’ noncompliance, but E-Verify will be committing $6M in implementing advanced data systems to gain the capacity to conduct complex analyses of E-Verify data.
  • Senior E-Verify program officials will also be reaching out to employers who fail to master the training tutorial—either with a compliance letter (a compliance failure notification) or a phone call—to further assist employers with the E-Verify process. They  will then follow up with the “targeted” employers to assess whether the prior non-compliant behavior has been adjusted.
  • Senior E-Verify and ICE worksite enforcement agents reported that they are currently coordinating to help USCIS better target its monitoring efforts because (1) login profiles to the E-Verify program are not monitored, (2) USCIS cannot currently monitor the extent to which employers follow the MOU provisions, and (3) employers who do not respond and remedy noncompliant behavior are not adequately sanctioned under the current program.

Ultimately, a great deal of the burden to address the deficiencies of the current verification system will fall to employers.  The current patchwork system cannot address the underlying reality that as long as 11 or so million unauthorized employees require employment to survive, a robust market of sophisticated, fraudulent documents will flourish.  Until the problems are adequately addressed, increased oversight and monitoring of the program will result in increased scrutiny of the employer by both ICE and USCIS, with the risk that compliance policy modification may result in increased allegations of discrimination.

Sure seems like one step forward, one step back.

This Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice. 

 Media Contact: Lourdes Brezo-Martinez, Greenberg Traurig, PA 212-801-2131.

©2011 Greenberg Traurig, LLP. All rights reserved.

Sunshine (State) Surprise – Florida's New E-Verify Requirement

From recent featured guest blogger at the National Law Review, Dawn M. Lurie and Kevin Lashus of Greenberg Traurig provide some needed details on Florida’s new E-Verify Requirement: 

Governor Rick Scott wasted no time in making the state of Florida the 14th the nation to have a mandatory E-Verify requirement. Only minutes after being sworn in, the governor signed his second executive order of the day—the first created the Office of Fiscal Accountability and Regulatory Reform to review regulations in the Sunshine State. Scott had touted ideas about mandating E-Verify during his heated primary fight with former Attorney General Bill McCollum but the magnitude of the actual order caught many by surprise.

Executive Order No. 11-02 requires:

1) All agencies under the direction of the governor to verify the employment eligibility of ALL current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system;

2) All agencies under the direction of the governor to include, as a condition of all state contracts, an express requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of:

a) all persons employed during the contract term by the contractor to perform employment duties within Florida; and b) all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.

b) all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency.

3) Agencies not under the direction of the governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.

E-Verify is web-based, voluntary program that compares an employee’s Form I-9 information with the Social Security Administration and Department of Homeland Security databases. E-Verify is considered a best practice by the government in terms of immigration compliance, has recently been upgraded to include a photo-matching component for U.S. passports, and will soon debut a driver’s license pilot program. In September of 2009, Congress required that all federal contractors and their subs use E-Verify for new employees (new hires) and all existing employees assigned to a federal contract. This was the only instance where E-Verify was authorized to use to verify a current workforce—until now. Scott’s Executive Order requiring re-verification of current and prospective employees transcends what is legally allowed under current federal law, and is therefore likely to face an immediate court challenge. Prospective employees? Lawyers over at the Office of Special Counsel for Immigration-Related Unfair Employment Practices (the part of the Department of Justice that enforces the antidiscrimination provisions of the Immigration and Nationality Act) are likely reeling from the breadth of the Order. And, the Verification Division at USCIS—the agency responsible for running the E-Verify program—may also be scramblingto determine whether to help Floridian employers implement compliance practices under these terms. As proposed, this represents a third typeof E-Verify for them to administer: normal, FAR-impacted and Florida. It is unclear who will be responsible to pay for development of the application on these terms. How might it work? Does this harken back to the Arizona question again—can the state trump the federal government on immigration requirements?

Ironically, Rhode Island Governor Lincoln Chafee rescinded Rhode Island Executive Order 08-01 that required the state, as well as contractors and vendors doing business with Rhode Island, to register and use E-Verify for all new hires. Chafee called the use of E-Verify a “divisive issue.”

Regardless of the future, Florida’s state agencies now need to be aware of the E-Verify process and should—like all other employers participating in E-Verify—undergo a comprehensive I-9 training, conducted by competent counsel, so that each of the designated E-Verify specialists may become experienced in the intricacies of employment eligibility verification. The verification process has become increasingly complex. Florida’s governor just complicated E-Verify even more. Any missteps by employees charged with verification compliance could be deadly. Employers must recognize that even the most well-intentioned individuals could attract both civil and criminal liability, not only upon themselves, but also upon their employers for failing to follow the verification process accurately and completely.

©2011 Greenberg Traurig, LLP. All rights reserved.

The Crackdown on Employment of Illegal Immigrants Spreads to California

Featured Guest Bloggers this week at the National Law Review are from Greenberg Traurig LLP.  Mahsa Aliaskari and Matthew B. Hayes have written one of the most  comprehensive articles we’ve  come accross reagrding E-Verify – especially as it applies in California.  

Murrieta and Temecula Join Growing List of Southern California Cities Requiring Employers to Use E-Verify

In 2007, Arizona became the first state to pass legislation requiring employers to use the voluntary E-Verify1 program to confirm the employment eligibility of new hires. Since then, Arizona has been the focal point for publicity and legal challenges on attempts by states and localities to crack down on the employment of illegal immigrants. However, Arizona is not the only place where we are seeing state and local action.

Behind the scenes, several Southern California cities have quietly followed Arizona’s lead enacting similar laws mandating use of E-Verify. On July 13, 2010, Temecula joined the growing list of Southern California cities requiring employers to use E-Verify as a condition for maintaining a business license, and on December 20, 2010, Murrieta’s city council moved forward with its plans to institute a similar ordinance. While the State of California has not jumped on the bandwagon, many of its localities are taking action and increasing the burden on companies doing business not only across state lines but across city and county lines.

Given the expansion of immigration laws at the state and local level, it is imperative that employers keep abreast of developments in this area and ensure that their hiring practices are legally compliant in each of the locations they employ workers.

The Trend Toward Making Use of E-Verify Mandatory

The growing trend of states and localities enacting their own legislation to police immigration related-activity has its roots in frustration over the federal government’s inability to effectively address illegal immigration and enact comprehensive immigration reform. While the frustration may be justified, the federal government did not make use of E-Verify mandatory for many reasons. A January of 2010 report2 conducted by Westat researchers found that E-Verify is not immune from identity theft. According to the report 4.1% of those passing E-Verify are not truly authorized workers. More specifically, 54% of unauthorized workers who were run through E-Verify were inaccurately identified as workauthorized. The findings appear to support claims of various groups that have criticized EVerify as being particularly vulnerable to identity theft and fraud. In addition, while improving, there continues to be false positives — while the rate is low there are still U.S. citizens and workauthorized foreign nationals who are denied employment through E-Verify.

What is more alarming though is the opportunity for intentional or unintentional abuse and misuse of E-Verify by employers who violate program rules. There have been reports of employers restricting work assignments, delaying job training, reducing pay or simply not hiring non-U.S. citizens based on database errors. In March of 2010, USCIS posted a fact sheet outlining its agreement and plans to share information with the Office of Special Council3 (OSC) at the Department of Justice. The fact sheet notes that the purpose of the Memorandum of Agreement (MOA) “is to establish a streamlined process for referring E-Verify matters falling within the other’s jurisdiction. OSC will receive referrals of potential discrimination that come to USCIS; in turn, USCIS will receive from OSC referrals of potential employer misuse of E-Verify that does not fall within DOJ’s enforcement arena.” Potential misuse of the program is cause for concern for all employers and a discrimination suit waiting in the shadows for employers who are not well versed in the proper use of the program. These problems and pitfalls should serve as a warning to states and localities considering and instituting E-Verify mandates.

Regardless of the federal government’s reasons for not mandating the use of the program, many states and localities continue to march forward with their own E-Verify requirements. Employers failing to comply with these E-Verify laws can face substantial penalties, including monetary fines, preclusion from contracting with federal, state and local governments, and suspension or revocation of their business licenses.

While Arizona has been at the forefront of this trend since enacting the Legal Arizona Workers Act, which went into effect on January 1, 2008,4 Arizona simply paved the way for others. Several other states have since passed or adopted similar legislation. For instance, in 2008 Mississippi passed legislation requiring that all private employers participate in E-Verify, with a phase-in period beginning in 2008 and full participation by 2011. On March 31, 2010, Utah adopted the Private Employer Verification Act that requires employers with 15 or more employees to use E-Verify or another verification system approved by the Department of Homeland Security to confirm the employment eligibility of hew hires. The South Carolina Illegal Immigration Reform Act, passed in 2008, requires all employers to use E-Verify to confirm the eligibility of new hires, or in the alternative, hire only workers who possess or qualify to obtain a South Carolina driver’s license or identification card. The South Carolina law goes even further by authorizing the state to scrutinize a businesses’ hiring records and cite or fine employers found to have unauthorized workers on their payrolls.

California Localities Join in With Their Own E-Verify Mandates

Currently, California does not have any statewide laws mandating the use of E-Verify. However, in the last few years, several cities in Southern California passed local ordinances requiring the use of E-Verify for some or all businesses. These cities and their respective E-Verify requirements include:

  • Mission Viejo: Effective July 1, 2007, the city and employers with city contracts must verify the eligibility of new employees through E-Verify.
  • Palmdale: Effective July 1, 2008, to be eligible for contracts with the city exceeding $50,000, a contractor must be enrolled in E-Verify.
  • Lancaster: Effective December 31, 2009, all employers in the city must use E-Verify to confirm eligibility of new hires. Failure to comply with this requirement can result in business license suspension.
  • Temecula: Effective January 1, 2011, all employers in the city must use E-Verify to confirm the eligibility of new hires as a condition of receiving or maintaining a business license.
  • Murrieta: The City Council is expected to approve an ordinance mandating that all locally operated enterprises use E-Verify. Code enforcement officers would have authority to confirm compliance with EVerify. Enforcement tools will include fines and license revocation.

Constitutional Challenge to State and Local Laws Requiring Use of E-Verify

The constitutionality of state and local governments requiring employers to use E-Verify to confirm employment eligibility is presently unresolved. On December 8, 2010, the United States Supreme Court heard arguments on Chamber of Commerce v. Candelaria, No. 09-115. The Supreme Court’s decision is expected in Spring 2011 and will likely determine the fate of similar laws recently enacted throughout several Southern California cities. The lawsuit challenges the constitutionality of the Legal Arizona Workers Act (LAWA).

Arizona’s law increased the level of state action by taking advantage of an exception to the preemption clause of the Immigration Reform & Control Act of 1986 (IRCA) relating to licensing laws. The law’s bold move in authorizing Arizona state courts to suspend or revoke business licenses provides the state with an enforcement mechanism not used previously. One of the primary issues in that case is whether the preemption clause applies and if state and local governments — as opposed to only the federal government — can require participation in the E-Verify program. Those challenging Arizona’s E-Verify requirement argue that immigration related legislation falls within the purview of the federal government, consequently laws like that enacted in Arizona conflict with, and are therefore preempted by, federal laws. In this instance referring to federal laws which contemplate that, except in limited circumstances, the use of E-Verify by employers would be voluntary. Prior to the Supreme Court granting review of the case, the Ninth Circuit upheld Arizona’s legislation, finding that it was not preempted by federal law. In light of the decision and arguments upholding the LAWA, it will be interesting to see the outcome of the pending Supreme Court case.

What These Developments Mean for California Employers

Pending the Supreme Court’s decision on the Arizona law, the number of state and local governments enacting laws mandating use of E-Verify is expected to continue and increase. In light of the evolving nature of immigration compliance and the intricacies of E-Verify and the Memorandum of Understanding that employers must agree to and sign when enrolling in E-Verify, it is critical that employers remain apprised of relevant developments, understand the E-Verify laws applicable in each state and city where they employ workers, and ensure their hiring practices are legally compliant. If your company has not yet enrolled in E-Verify and it is being considered either because of legal mandate or as a best practice, it is critical that an internal review of the existing workforce and Form I-9s be conducted first and with experienced counsel. The “culture of compliance” is the theme of the Obama administration and it is spreading to cities and states across the nation. A few proactive steps will go a long way in limiting liabilities and exposure.

Resources

Promoting a Culture of Compliance — Best Practices for your Business

  • Establish a comprehensive immigration compliance policy
  • Conduct in-house audits of Form I-9 documents and company policies, as well as E-Verify if applicable
  • Establish policies, protocols and training for employment verification
  • Diligently verify the identity of job applicants to ensure that they “are who they say they are”
  • Consider use of E-Verify after consultation with experienced immigration compliance counsel
  • Establish protocols for addressing Social Security No-Match letters
  • Establish and maintain safeguards against the use of the I-9 process for unlawful discrimination
  • Create a protocol for immigration compliance related to contractors and subcontractors

ICE utilizes various tools to target employers, particularly those involved with vital infrastructure and national security, as well as the usual suspects – unofficially “targeted” industries – food service, textile, meat/poultry plants and constructions. Employers must take steps now to ensure full compliance or face serious consequences. Actions taken before a government-initiated audit or investigation generally help mitigate damages, reduce exposure and save the company both time and money in the long-run.

1 E-Verify is an Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration. Its purpose is to enable participating employers to electronically verify the employment eligibility of their workforce. Under the system, employers fill out an online form with the information provided by new hires on the Employment Eligibility Verification Form (commonly referred to as the I-9 Form). That information is then cross-referenced with an assortment of government databases to confirm the worker’s employment eligibility.

2 The evaluation was conducted by Westat, a Rockville, Maryland-based social science research firm under contract to U.S. Citizenship and Immigration Services (USCIS). The evaluation was managed by the USCIS Office of Policy and Strategy, independent of the E-Verify program office, which is run by the USCIS Verification Division.

3 OSC is responsible for enforcing the anti-discrimination provisions of the INA. The antidiscrimination provisions include violations involving: (1) citizenship status discrimination, (2) national origin discrimination, (3) unfair documentary practices during the employment eligibility verification process (document abuse) and (4) retaliation.

4 That legislation requires all employers in Arizona to use E-Verify to confirm the employment eligibility of new hires. It penalizes employers who knowingly or intentionally hire illegal immigrants by suspending or revoking their business licenses.

©2011 Greenberg Traurig, LLP. All rights reserved.

 

 

E-Verify Tentative Nonconfirmations: Don’t Panic Just Yet

Recent Business of Law Guest Blogger at the National Law Review, John Fay of LawLogix Group, Inc. provides a nice walk-through of what employers can expect when they receive a mismatch or tentative nonconfirmation (TNC) through the e-verify system. 

As an employer, there’s a certain amount of trepidation that comes with using the E-Verify system. While roughly 97% of all employees are instantly (or shortly thereafter) confirmed as work authorized, it’s the potential 3% which receive a mismatch or tentantive nonconfirmation (TNC)  that keep us up at night. Was there a mistake in the information that we submitted or perhaps a mistake with the SSA or DHS database? Or what if the employee is unauthorized to work? When do I have to terminate him? Processing a TNC requires employer guidance, employee action, and often, lots of patience. The most important thing to remember is that a TNC does not mean that your employee is unauthorized to work. It’s just the first step in an E-Verify dance with government systems. Sounds like fun, right?

Process Overview

First, there are many perfectly legitimate reasons for a TNC, and your role as the employer is to communicate that fact with your employee. For example, your employee could receive a Social Security mismatch because of the following:

  • Name, SSN or date of birth is incorrect in SSA database
  • Employee failed to report a name change to SSA (married name, perhaps?)
  • USCIS immigration status was not updated with SSA

You might also receive a DHS TNC because of the following:

  • Photo ID of green card, EAD , or US passport (starting September 26th) does not match DHS records (this is a comparison you would perform manually when prompted)
  • Information was not updated in DHS records
  • Citizenship or immigration status has recently changed
  • Name, alien number, and/or I-94 admission number were incorrect in DHS database

Regardless of the reason, you must first notify the employee in private of the TNC case result by printing the TNC Notice (to be signed) which is automatically generated by the E-Verify system. This letter explains all of the possible reasons why the TNC may have occurred and instructs the employee to review their information to make sure it was correct. Assuming it was, the employee then has 2 choices: CONTEST or NOT CONTEST. If the employee chooses to contest, then you must initiate a referral (in the E-Verify system) and provide them with a TNC Referral Letter (to be signed) that is automatically generated. This letter instructs the employee to contact the appropriate government agency (SSA or DHS) within 8 federal government work days to resolve the case. If there was a photo mismatch, you will also be instructed to send a copy to E-Verify. Alternatively, if the employee chooses not to contest, you may terminate employment and close the case.

The Waiting Game

Assuming that your employee has contested and you have properly referred them, the waiting game begins. E-Verify instructs employers that they will provide a case update (in the system) within 10 federal government working days. Employers using the web interface will need to check the system periodically, whereas employers using electronic I-9 systems can see updates automatically on their dashboard. Regardless of how you check, remember that you may not ask the employee for additional evidence of confirmation that SSA or DHS resolved the case. Doing so might be viewed as discriminatory. On the other hand, you should be diligent in checking on the case to see if there are updates. I did say this was a dance didn’t I?

Occasionally, the SSA or DHS may need more time to resolve a TNC – this could happen for a variety of reasons. Local SSA offices may be over-burdened with their core tasks (application for SSA benefits) or the employee may not have the documentation needed by SSA to support a change in their records. These record requests can add weeks to the process, and needless gray hairs to the worried HR representative. Regardless, the rules make it clear that you may not terminate, suspend, delay training, withhold or lower pay, or take any other adverse action against an employee based on the employee’s decision to contest a TNC or while the case is still pending with SSA.

The End Game

If all goes well, SSA or DHS will update its records and the employee’s case in E-Verify to indicate “Employment Authorized.” Occasionally, SSA may require the employer, employee or the U.S. Department of Homeland Security (DHS) to take additional action before a final case result can be issued. In these cases, SSA will update the employee’s case with a different message. Once the employee has received a final case status, such as “Employment Authorized” or “SSA FNC,” the employer must close the case in E-Verify. If the employee received an “SSA FNC,” the employer must also indicate whether the employee was terminated.

Paper Trail

If you review the last 4 paragraphs, you’ll notice I mentioned a variety of letters and notices. As with most areas of I-9 compliance, documentation is key. Therefore, as an employer, you’ll want to make sure to keep these signed letters on file with the I-9 (as instructed in your E-Verify User Manual). In the event of a government audit (relating to I-9s or E-Verify), you may be required to present these.  If you are usinga good electronic I-9 and E-Verify compliance system, the employee and employer should be able to electronically sign these letters, and the system should automatically attach them to the employee’s record along with a detailed audit trail.  Documentation is good, but paperless documentation with detailed audit trails is even better yet in building your “Good Faith” defense in case of an EEOC/OFCCP investigation and/or ICE audit!

More Information

Resolving TNCs can be a complicated process, and I’ve just given you a very brief overview. For more information, check out the USCIS web site here and review the latest E-Verify user manual. And if you’re stuck with a tricky E-Verify situation, make sure you consult experienced immigration counsel to avoid any missteps in this government dance

LawLogix Group, Inc. © 2001-2010 All Rights Reserved

Employment-Based Preference EB-5 Program Assistance

For the National Law Review’s featured guest bloggers from Taft Stettinius & Hollister LLP.  Hugh E. Wall III discusses an immigrant visa program which gives preference to qualified foreign investors. 

The fifth employment-based preference (“EB-5”) immigrant visa program encourages qualified foreign investors to invest within the United States in exchange for permanent residency. The program is currently underutilized; of the 10,000 EB-5 visas available last year, the United States Customs and Immigration Service (“USCIS”) only issued 4,218 visas. The following list is a summary of the program features.

  • Pursuant to the basic program, an alien investor must make a capital investment of either $500,000 or $1,000,000, depending on whether the investor invests in a “Targeted Employment Area” (“TEA”), in a new commercial enterprise located within the United States. The enterprise must directly create or preserve at least ten full-time jobs for qualified U.S. workers.
  • Under the Regional Center Pilot Program, foreign investors must complete the basic program requirements by investing either $500,000 or $1,000,000 in a new commercial enterprise. However, unlike the basic program, under the Regional Center Pilot Program, the new commercial venture need not directly create the ten jobs required by the basic program. Instead, the commercial venture need only show that the investment indirectly created or preserved ten jobs.
  • To create a Regional Center, an individual or entity must file a Regional Center Proposal with USCIS to request approval of the investment proposal and the designation of the applying entity as a Regional Center. The entity applying for Regional Center status must maintain at least $100,000 in capital before the USCIS will award Regional Center status. There are currently 90 Regional Centers operating in 34 states. USCIS awards the vast majority of utilized EB-5 visas to alien investors who have invested in a Regional Center.
  • A TEA is an area with an unemployment rate that is at least 150% of the national average. If the foreign investor invests in a non-TEA, the investor must contribute the standard threshold minimum of $1,000,000. If the investor invests in a TEA, the investor need only invest $500,000 to be eligible for the EB-5 visa.

Copyright © 2010 Taft Stettinius & Hollister LLP. All rights reserved.