How will DHSs Deferred Action (DACA) process affect Alabama Employers?

Lets first discuss new employees.  Alabama employers now have a segment of new potential employees.  Deferred Action for Childhood Arrivals (DACA) beneficiaries are eligible for employment authorization if they file a petition for employment authorization (USCIS Form I-765) and receive their Employer Authorization Document I-766 (EAD).  Absent this, they are not authorized to work in the United States.

Next, lets discuss current employees.  If an existing employee informs his or her employer that he or she has filed for DACA consideration, this means that the employee is currently not authorized to work in the United States, which in turns means the employer has knowledge or at least constructive knowledge of the employees lack of work authorization, because only individuals who are not lawfully present in the United States may apply for DACA consideration.  To comply with the law, the employer must terminate employment immediately.

Why would the employee tell his or her employer that he or she has filed for DACA consideration?  Consider this scenario: Employee comes to HR department and asks for a letter or documentation to confirm that he or she has been working for the employer for a specified period of time. When asked what will this information be used for, the employee states that he or she is applying for DACA.   Ooops!

Adding to the risk associated with continuing to employ the individual who is currently applying for DACA consideration is the fact that any employment information provided by a DACA petitioner may be shared with ICE, which might lead to an investigation or audit into the hiring practices of the employer.

Issuance of New I-9 Form Delayed Employers Will Continue to Use Current I-9 Form Even After August 31 Expiration Date

USCIS recently announced that employers who were eagerly awaiting the release of the new I-9 Form will have to wait a little longer.   But hold on a moment.  The current I-9 Form has an expiration date of 8/31/2012 printed in the upper right hand corner. So, what are employers supposed to do if a new form is not released by August 31, 2012?  Indeed, employers could get into trouble if they use expired I-9 forms.

Per USCIS, even after the current form expires on August 31, 2012, employers should continue to use the current I-9 Form until USCIS instructs otherwise.  USCIS instructions for the Form I-9 currently available on I-9 Central also indicate that the agency will accept the use of the prior version of the Form I-9 that bears a revision date of February 2, 2009.  (The February 2, 2009 I-9 Form has an expiration date of June 30, 2009.)  

Why the delay? As announced in March of 2012, USCIS is in the process of updating and publishing a newly revised two-page Form I-9. When the comment period of the revisions was opened to the public, USCIS received a large number of comments over 3,000.  So, USCIS is taking a little longer than expected to absorb all these insightful comments.

To B-1, Or Not To B-1? Or Is That The Question? Palmer v. Infosys Technologies.

Imagine your worst compliance nightmare, then rest assured that folks (present and former) at Infosys have endured worse in the case of Palmer v. Infosys Technologies Ltd., Inc., M.D. Ala. 2:11-cv-217.  Civil jury selection is set to begin August 20 in U.S. District Judge Myron Thompsons courtroom in Montgomery, Alabama.  Criminal grand jury proceedings are referenced in the civil filings, but the criminal investigation record is not open to the public.  The claimant has asserted, in detail, a massive, corporate-directed visa fraud and tax evasion scheme, the purpose of which, he says, was to run our governments H-1B visa blockade by certifying that Indian software developers, database administrators and other skilled IT professionals, assigned to work on client projects here, were but temporary, B-1 business visitors.   Material differences include the uncertainty, delay and cost of an H-1B visa (months, thousands of dollars, if granted), the ineligibility of a B-1 visa holder to engage in local employment or labor for hire, and their consequent  exclusion from tax-withholding payrolls.  A business visitor is supposed to come to the meeting here, then go home.  According to the whistleblower in this case, Infosys forced him and others to write false, fill-in-the-blank welcome letters affirming B-1 eligibility, to be offered to support B-1 visa issuance.  Perhaps worse, Infosys allegedly coached the visa holders how to conceal and falsify the employment purpose of their travel to the United States.  As the Ginsu knife guy always said, But wait, theres more!

The whistleblower says that corporate HR and legal department managers admitted to him that the scheme existed and that it was illegal.  Initally, they planned to investigate and clean it up.  But they were over-ruled and either quit or fell in line, the whistleblower says.  Some of those who quit are named as witnesses for the whistleblower.  Both inside and outside Infosys counsel have been deposed and may be called to testify at trial.  In short, says the whistleblower, his reports first internally, then to the feds started a battle among executives that the bad guys won.

While generally denying the visa fraud scheme, Infosys lawyers defending the suit are seeking to have it dismissed on grounds irrelevant to the alleged scheme.  They say that, even if all those allegations are true, the whistleblower was not, due to his reports, subjected to sufficient, Infosys-directed retaliation to justify his legal claims.  For example, Infosys says that the evidence fails to prove a material reduction of the whistleblowers compensation or that the threats (including death threats) he received were made by an agent of the company in the course and scope of employment.  Briefing of the defense motion concluded June 15, 2012.   Unless the motion is granted entirely, it seems that Judge Thompson will begin jury selection on August 20.

Infosys, headquartered in Bangalore, India, is a global provider of tech-enabled business solutions.  Many U.S. companies have relied on Infosys to staff critical projects with skilled people who are in very short supply here such as Oracle software developers and database administrators.  This case appears to be a morality tale about the stark, unappealing options of a whistleblowers superior, but it also exposes the broken, dysfunctional H-1B visa program and its potentially catastrophic consequences for U.S. businesses.