Category: Federal Immigration Law

You Can’t Do Indirectly What You Can’t Do Directly

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The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you cant do directly.  Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency.  It didn’t work.

The issue isn’t uncommon.  During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work.  Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or suspect documents.  These employees may be terminated as a result.   When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.

Ive been asked, Can we have these terminated employees go work for a temp agency and come back to work for us?  The answer is, Absolutely not!  The employer already has actual knowledge that these individuals are unauthorized.

The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important.  Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., constructive knowledge) that such individuals are unauthorized.

What should employers do?

  • Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
  • Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.

 

Government Shutdown: Impact to Employers Immigration Compliance Efforts

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The current government shutdown will affect several areas of immigration compliance for employers and individuals. While attempting to be comprehensive, the following post is by no means exhaustive of the shutdowns impact.

First, a quick guide of what we consider to be the most significant disruptions to employers and individuals:

  1. Lack of access to E-Verify
  2. The inability of individuals to apply for visas at U.S. Consulates;
  3. The inability of employers to obtain certified LCAs  for H-1B petitions;  PERM labor certifications and prevailing wage determinations.
  4. The inability of individuals in obtaining replacement Social Security Cards.
  5. ICE will continue to issue Subpoenas and Notices of Inspection to employers, but audit processing may be delayed.

Second, a more detailed list of the impact of the shutdown broken down by the various agencies of the US government that interface with employers in the Immigration arena.

US Department of Homeland Security

USCIS Immigration Benefits

As an agency funded by filing fees, USCIS will continue normal operations with regards to most of its adjudication operations during the shutdown. Any fee for service activities performed by USCIS will not be affected by the shutdown. This means that employers (and beneficiaries) may continue to file petitions for employment visas (temporary or permanent), adjustment of status applications, and other benefits like EADs and advanced parole petitions.   Naturalization ceremonies however appear to have been cancelled. USCIS directs users to report to interviews and appointments as scheduled  and to call 1-800-375-5283 with questions.

E-Verify

Given that E-Verify is a free service, it will be unavailable to users during the shutdown. This means that employers who want to: enroll in E-Verify, query new hires, view or take action on any case, add, delete or edit user IDs, reset passwords will have to wait until operations resume. As well, the E-Verify Customer Support and related services are closed.  In its most recent alert, E-verify provides the following practical guidance:

  • The three-day-rule for new E-verify cases is suspended until further notice.
  • The timeframe for resolving TNC (FAN) will be extended. The days the government is shut down will not count towards the 8 day deadline.
  • Federal contractors need to contact contracting agent to inquire about extending deadline for compliance.
  • Employers should NOT take any adverse action against an employee due to E-Verify interim cases status.

Customs and Border Protection

CBP will continue to operate, as its mandate is deemed an essential function of the US Government. Border security and customs procedures and processes at the various US land and sea ports of entry are expected to remain unchanged and will continue to accept applications for admissions. However, delays may be expected as CBP  is giving a furlough to more than 10 percent of its staff.

US Department of State

At this moment, the Bureau of Consular affairs will continue operations through out its worldwide consular offices until current funding is runs out. Funding is only expected to last a few more days. Fox News Latino reported that after current funding is exhausted consular posts will focus solely on diplomatic services and emergency services for American citizens. Further, visa processing, except in emergency cases, will cease if the shutdown is prolonged. Employers should note that in previous  shutdowns, business reasons have not qualified for emergency visa processing.

US Department of Justice

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any complaints that must be filed to comply with statutory deadlines.

Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, check here.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open (for emergency stay calls only), but all other telephone lines have been switched to closed status.

US Department of Labor

Most of the DOL agencies like Wage and Hour and Occupational Health and Safety, will completely close during the shutdown. Further in the Immigration arena, the DOL has announced that the Employment & Training Administration, which handles Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification will cease operations.

OFLC’s web site, last updated September 26, 2013, announced that OFLC will neither accept nor process any applications or related materials (such as audit responses) LCAs, Prevailing Wage Determinations, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.   OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online account.

This will result in delays and will likely prevent an an employers ability to file petitions with USCIS, or engage in recruitment efforts, when those petitions require an application approved by DOL. The current backlog of adjudications will likely grow during this time.

Social Security Administration

SSA personnel will continue to perform essential services  like issuance of checks for beneficiaries. However, it will not accept applications for new or replacement Social Security cards or issue receipt notices for those that have lost or stolen cards. This may impact an employers ability to complete I-9 forms.

We will continue to update our readers as more information becomes available.

Employers Get Ready, Set, Go . New 2 Page I-9 is HERE

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On March 8, 2013, USCIS will release the much awaited, and somewhat dreaded, two page I-9 Form. Click here to see the advanced Fed. Register Notice.   You’ll see format changes, new fields (some mandatory, some optional), clarified instructions and much more.   Click here to see earlier-proposed versions of the form released on 3/27/2012 and 8/23/2012.   The new, revised Form I-9 will contain a revision date of “(Rev. 03/08/13)N.”  Once available, a copy of the new form will be available on the USCIS webstite. Employers should begin using this new form immediately.

Here are a few key things to know:

By May 8, 2013, employers must be using the new form exclusively.  Using the old form after May 8 will be a basis for penalty assessment.

  • The timeframes for completing  and retaining the I-9 Form remain the same.
    • Section 1 of the Form I-9 must be completed (and signed) by the employee on the first day of work for pay or before the first day of work for pay, if the employer has offered the individual a job and if the prospective employee has accepted it.
    • Section 2 of the I-9 Form must be completed (and signed) by the employer within three business days of the employee’s first day of work for pay.
    • Section 3 of the I-9 Form (if required) must be completed by an employer if an employee’s employment authorization or documentation of employment authorization has expired – re-verification must occur on or before the employee’s work authorization expires.   An employer may choose to complete Section 3 when an employee is rehired (within three years of the date that Form I-9 was originally completed) or when an employee changes his or her name.
    • Just as with the expiring Form, employers must retain the new Forms for three years from date of hire or one year from date of termination whichever is longer.

For employers using an electronic I-9 system, ICE’s position remains: “buyer beware;” each employer is ultimately responsible for ensuring system compliance. Therefore, please ensure your vendor is aware of this new release. Do not be afraid to ask the tough questions to ensure your vendors system is compliant with the regulations. We know that some vendors, including LawLogix, are aware of this development and have been diligently working to make sure the new I-9 Form is timely available on their system.

The Game Immigration – A Long Story of the Process

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The Game Immigration, what is that? This article features a blow-by-blow account and an insider’s view of the attempt to put together comprehensive immigration reform in the early years of the Obama administration, or the game immigration. It all came to naught. But, we hope, this account of how sausages get made is interesting.
On Friday, immigration reform looked good, then came Saturday… The Game Immigration, the beginning …
 
Last week, immigration reform looked possible. The Administration had been giving small bi-partisan groups in the House and Senate room to work on compromise legislation, comments from both sides of the aisle were very positive, and things generally looked good.
That was Friday.
On Saturday, the Administration draft proposal was leaked to the press. On Sunday, Republicans denounced it. Now its Monday, a Federal holiday, the government is shut down, and Congress is in recess for the rest of the week. Where will this go now?
Forget about how or why the Administration proposal was leaked. Yes, its interesting, but not important. It is the substance of the proposal you should examine.
The Presidents proposal would create a new visa entitled Lawful Prospective Immigrant which would allow illegal immigrants to work and travel after paying fees and passing a criminal background check. Immigrants holding the Lawful Prospective Immigrant visa could apply to become a legal permanent resident (green card) after eight years. Current law allows green card holders to apply for full U.S. citizenship after five years.
Some Republicans call this Amnesty and will not support any plan that contains a path to citizenship for undocumented workers, but many seem willing to move forward as long as the borders are secured. Reluctant GOP members point to the last immigration reform legislation in 1986  that granted blanket amnesty to illegal immigrants, and allowed them to cut into line for a green card if they could prove they had been in the U.S. for five years. On top of that, they also argue that it does nothing to address guest workers or future immigration.
There are some things that the Republicans do like – increased funding for Border Patrol, additional immigration judges and expanded use of the E-Verify system for employers to check the immigration status of job applicants. There were other tidbits for the GOP mentioned in the Administration proposal like requiring Lawful Prospective Immigrants to pay back taxes and pass English and civics tests currently only required for citizenship applicants. Nevertheless, this is a draft proposal. Democrats interpret it as a trial balloon while Republicans see it as a veto threat, but I see it as a good sign.
Congress was making progress on the issue, and moving forward quickly. The Administration realized it, and knew that they needed to quickly define its position more clearly than it did in the State of the Union Address. While it was clumsy, putting their unofficial position on the table as Congress left town for a week was probably a good idea. Theyve said their piece, appeased their supporters, ticked off the Republicans, and can now work on other agenda items. When Congress gets back to town next week, the Republicans will have cooled off, the Administration leak will be old news, and the working groups in the House and Senate can get back to work. And, it would be a good idea for the Administration to hold their peace until Congress starts moving legislation.
There is still a very good chance well see something move forward in 2013, but then comes 2014, a mid-term election year
Immigration reform was still hot last week (and this week)

February 25, 2013, The Game Immigration, Round 2

On the good news front, Republicans got over the leaked Obama plan, discussions continued, committee hearings moved forward and legislation is expected before April.

The talks in Congress boil down to two main issues border security and a process for checking the immigration status of workers. The latter is of greatest importance to employers, who will likely bear the responsibility of any new process for ensuring work authorization or immigration status of workers. Securing the borders before allowing the nations illegal immigrants to move toward citizenship is a critical issue for conservatives, while a simplified and cost effective employment verification system is essential to business.

The AFL-CIO and U.S. Chamber of Commerce agreed on basic principles for low-skill workers, this compromise would likely mean that U.S. workers should get the first crack” at jobs, it would also create a new guest worker program process, and establish an oversight office to provide transparent, data-based labor information to Congress.

Now for the not-so-good news. The House Judiciary Committee Chairman said he does not support an eventual path to citizenship for undocumented immigrants. Border State House members voiced opposition to the Senate plan, and a recent Reuters poll shows more than half of U.S. citizens believe that most or all of the countrys 11 million illegal immigrants should be deported. When broken down by party, 75% of Republicans think most undocumented immigrants should be deported, while only 40% of Democrats would send them away. No wonder Republican Members of Congress are reluctant to endorse immigration reform until they see the details.

Some of those Republicans are scarred from the battle in 2007, but most of them have never debated immigration reform. In fact, more than half of Congress has turned over since comprehensive immigration reform legislation was last considered. House leaders have been moving at a deliberate pace so that they can educate more than 100 first and second term members, and Republicans believe the poll numbers can be moved at the grassroots level.

A new GOP super PAC has been created to push for immigration laws supporting a conservative, broad-based approach to immigration reform, funded by a cross-section of industries. The Democratic controlled immigration PACs are far ahead of their Republican counterparts, and although their contributors are different, they are ultimately working together for the same outcome.  Motivations may be different, but these unusual bedfellows both understand, No peso, no say-so.

Although the noise from the sequester debate overshadows these developments, today Republican Senators head over to the White House for a chat with the President, and Congress holds a hearing to define Border Security things are moving and still look good…

A strong, bi-partisan effort continues, The Game Immigration part 3

Last week the President met with GOP Senators to talk about immigration legislation.

According to the Senators the meeting went very well, and they believe that the President will be flexible. While details were not discussed on the record, the talk is that both parties understood the pathway to citizenship will be tied to border security.

A small group of Senators from both parties continues to meet each day to work on comprehensive legislation, and based on comments from participants in both parties, there is strong optimism that an agreement will be reached. The House is a bit different.

The talks there are much more delicate because they have to pass a Republican-controlled chamber where a majority of members represent districts with a Hispanic population of less than 10 percent, and while theyre in safe Republican Districts, they fear a challenge in their primary. This week it was illustrated when a potential 2016 Republican Presidential candidate, Jeb Bush, positioned himself to the right of Marco Rubio, one of the Senators working on the bi-partisan bill.

GOP leaders are engaging in listening sessions to educate members, and will probably approach the overhaul in pieces instead of moving one comprehensive bill, working on the low hanging fruit first, and then working on tougher elements later. The details are being circulated but its hard to tell whats real and whats a trial balloon. One a good note, last week the House Judiciary Chairman said he did not support an eventual path to citizenship for undocumented immigrants, however, this week he seems to be more open to compromise.

This week the Presidents Cabinet Secretary for Homeland Security Secretary said that immigration reform is the top priority for her Department this year, but she also came under fire for releasing immigration detainees due to the budget sequester. Immigration and Customs Enforcement under the Department of Homeland Security will need to release 1,000 detainees a week through March to deal with the budget cuts. Republicans accused Immigration and Customs Enforcement of releasing people charged with serious crimes and are concerned that up to 10,000 detainees could ultimately be released. Some Members of Congress are also accusing the Administration of using the sequester as a way to enact immigration changes that would not get through Congress, and they feel that this illustrates that even with comprehensive immigration reform, the Administration cannot be trusted to enforce the law if passed.

As a footnote, there was also a House Judiciary Committee hearing this week where members of both parties questioned the H-1B visa program. There is concern that some employers have abused the program by hiring people at entry-level wages which ultimately undercuts many American workers. There was an effort last year to categorize 50,000 green cards, that are usually offered as part of a lottery, for graduates in science, technology, engineering and mathematics (STEM). Democrats objected that it favored one group of immigrants over another. Democrats supported simply increasing the number of green cards for the STEM category. This may be one issue that moves early in the House.

What you can take from this weeks activities is that all parties are making a strong effort on this issue. So far there has been minimal political posturing, and its the only issue in Washington where you see cooperation.

The Game Immigration Finale, attached is the Senate immigration reform bill draft (full text):

Senate draft bill

 

Finally, Some Guidance on Electronic I-9s

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Electronic I-9s, thanks to a Freedom of Information Act request from LawLogix, a memorandum from the Executive Associate Director of Homeland Security Investigations (HSI) that provides guidance to all HSI field offices on the collection of electronically generated I-9 forms and the minimum electronic audit trail requirements for use in contemplating civil fines was released to the public.

As background, every electronically generated or stored I-9, electronic I-9s must meet all of the requirements for electronic I-9 found in the regulations. One requirement is the form must be accompanied by an audit trail.   The HSI memorandum states in part that whenever an electronic Form I-9 record is created, completed, updated, modified, altered or corrected, a security and permanent record must be created (audit trail) that establishes the date accessed, who accessed it and what action was taken.  The HSI memorandum attaches a flow chart and example audit trial to illustrate the minimum acceptable standards for electronically generated I-9 forms.

The HSI memorandum also states that, in addition to the audit trail, special agents or auditors must request the name of the software product being utilized and any internal business practices and protocols related to the generation of, use of, storage of, security of, and inspection and quality assurance programs for the electronically generated Forms I-9.

Moreover, the HSI memorandum states that the employer being audited should provide the indexing system identifying how the electronic information contained in the Form I-9 is linked to each employee and documentation of the system used to capture the electronic signature, including the identity and attestation of the individual electronically signing the Form I-9, or electronic I-9s.

Finally, the HSI memorandum recommends that special agents or auditors request access to the electronic system for a demonstration of the generation of an electronic I-9 form.

What is the take away?  Recall that HSI has very clearly stated in the past that it would hold employers responsible for the mistakes and errors of their electronic I-9 vendors, buyer beware.  While HSI agents and auditors may not have dug into the dirty details of these systems during past audits, the days of employers getting a pass due to a lack of guidance or knowledge have past.  If an employer is unsure if its electronic I-9 vendors system is in compliance with this guidance and the applicable regulations, now is the time to find out.

If you would like a copy of this memorandum, please contact us and we will be happy to send it your way.