Immigration Issues for Employers:What In-House Counsel and

Human Resources Professionals Need to Know

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© 2009 Employment Law Alliance

INTRODUCTION

Steve HirschfeldModerator

Presenters

• Moderator – Stephen J. HirschfeldCuriale Hirschfeld Kraemer LLPSan Francisco, CAshirschfeld@chklawyers.com

• Robert S. AndersonMiller, Canfield, Paddock and Stone, P.L.C., Ann Arbor, MIandersonr@millercanfield.com

• Melanie Gurley KeeneyTueth Keeney Cooper Mohan & Jackstadt, P.C., St. Louis, MOmkeeney@tuethkeeney.com

• Teri A. SimmonsArnall Golden Gregory LLP, Atlanta, GAteri.simmons@agg.com

• Christopher L. ThomasHolland & Hart LLP, Denver, COcthomas@hollandhart.com

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Non-immigrant Visa Issues

• Non-immigrants defined.• Trends in USCIS and DOS adjudications.• Comprehensive non-immigrant visa reform?

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B-1 Business Visitor / B-2 Visitor of Pleasure

• B-1: Commercial transactions not involving employment.– Negotiating contracts

– Attending business / board meetings, conventions, executive seminars

– Consulting with clients / associates

– Installing equipment pursuant to contract of sale (excluding building / construction work)

– Exploring investment; setting up subsidiary

• B-2: Tourism, amusement, visiting friends/family, medical treatment, non-spouse partners.

• Apply for B-1/B-2 visa at U.S. Consulate abroad; apply for U.S. admission at port of entry.

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Visa Waiver Program (VWP) & Electronic System for Travel

Authorization (ESTA)

• VWP: Allows eligible citizens & nationals of participating countries to travel to U.S. for business or pleasure for up to 90 days without a visa; no change/extension.

• ESTA: Effective 1/12/2009, all VWP non-immigrants must obtain authorization before embarking on travel to U.S.

• Complete ESTA application at: http://esta.cbp.dhs.gov/.

• In most cases, almost immediate eligibility determination.

• Approved ESTA application generally valid for 2 years (or until applicant’s passport expires).

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H-1B Specialty Occupation

• DEADLINE for new H-1B Petitions: April 1, 2009!!

• Bachelor’s degree or higher in specialty (or equivalent).

• Employer and position specific.

• 65,000 H-1B visas / year (less free trade visas); 20,000 additional H-1B visas / year for persons with Master’s degree or higher from U.S. school.

• Process: (1) Obtain USDOL LCA certification; (2) Obtain USCIS approval of H-1B petition; (3) Obtain H-1B visa at U.S. Consulate (if abroad or traveling).

• Admission: 3 years initial; extend to 6 years maximum.

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Intracompany Transferees L-1A (Executives / Managers) L-1B (Specialized Knowledge)

• Employed continuously abroad for 1 of 3 prior years by parent, branch, affiliate, or subsidiary of U.S. company.

• Must be manager, executive, or worked in specialized skill abroad; may be in any of these three in U.S.

• Process: (1) Obtain USCIS approval of L-1 petition; (2) Obtain L-1 visa at U.S. Consulate (if abroad or traveling). (With Blanket L approval, can apply directly at U.S. Consulate without prior USCIS approval.)

• Admission: 3 years initial; extend in 2-year increments to 7-year maximum for L-1A, 5-year maximum for L-1B.

• Heightened scrutiny.8

E-1 Treaty Trader / E-2 Treaty Investor

• E-1: Substantial trade.

• E-2: Substantial investment / employment creation.

• Process: Can apply for visa directly at U.S. Consulate abroad without prior USCIS approval.

• Trends in interpretation at U.S. Consulates abroad.

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O-1 Extraordinary Ability

• Extraordinary ability in the sciences, arts, education, business, or athletics, demonstrated by sustained national or international acclaim.

• Awards; memberships; publications about person; judging work of others; original contributions of major significance; scholarly articles; critical/ essential employment with distinguished organizations; high salary.

• Adjudication trends in light of H-1B cap.

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TN Trade NAFTA

• For Canadians and Mexicans engaged in professional activities in U.S. for specific employer.

• Regulations specify categories of professionals and minimum degree/credential required for each category.

• No prior visa required for Canadians; apply directly at U.S. port of entry.

• Mexicans must obtain visa at U.S. Consulate; no prior petition with USCIS required.

• Port of entry processing trends.

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EB-1 Trends for Multinational

Managers/Executives

• Position (Abroad and U.S.).– Detailed job description.

• Employees supervised– Title/job description of direct reports

• Function/Division/Subdivision manage

– Corporate organizational chart.• All job titles

• Names of employees

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EB-1 Trends for Multinational

Managers/Executives

• Evidence of employment abroad.

– 1 year of pay stubs.

– Employer confirmation letter.

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EB Preference Categories

• EB-2 – Master’s Degree.– Baccalaureate degree plus 5 years of progressive

post-baccalaureate experience in a specialty occupation.

• EB-3– Professionals – Baccalaureate degree.– Skilled Workers – Full-time permanent job requiring at

least 2 years of training or work experience.– Other Workers – Includes foreign nationals with fewer

than 2 years of training or work experience.

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India Degrees

• Baccalaureate Degrees– B.SC/B.A/B.COM are generally a 3-year course

of studies

– B.ENG is a 4-year course of study

• Master Degrees– M.SC/M.A/M.COM are generally a 2-year course

of studies after completion of B.SC/B.A/B.COM

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India Degrees

• Credential evaluation– Specific and meaningful analysis.

– Document qualifying degree equivalent with comparable U.S. degree.

• Higher education systems

http://unesco.org/iau/onlinedatabases/index.html

http://www.aacrao.org/publications/catalog/wes.cfm

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PERM Audits

• Approximately 25% audited– Substantial delay if case is audited (1 year or more)

• Foreign language requirement

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PERM Audits

• Exceeds the “normal” requirements for the occupation.

– Specific vocational preparation (SVP).• Levels of SVP

SVP 1 - Short demonstration onlySVP 2 - Anything beyond short demonstration up to and including 1 monthSVP 3 - Over 1 month up to and including 3 monthsSVP 4 - Over 3 months up to and including 6 monthsSVP 5 - Over 6 months up to and including 1 yearSVP 6 - Over 1 year up to and including 2 yearsSVP 7 - Over 2 years up to and including 4 yearsSVP 8 - Over 4 years up to and including 10 yearsSVP 9 - Over 10 years

• Baccalaureate = 2 years of SVP Masters = 4 years of SVP Ph.D. = 7 years of SVP

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PERM Audits

• Layoffs or reduction in force (RIF)

– Within 6 months of filing PERM.

– In the occupation or a related occupation.

• related occupation = majority of the essential duties are the same

– Must notify “all potentially qualified” laid-off workers in the occupation or related occupation.

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PERM

• iCERT System

– July 1, 2009 - OFLC begins receiving new PERM form for processing.

– July 31, 2009 – OFLC continues receiving existing PERM form through PERM Online System.

– August 1, 2009 – OFLC disables filing of existing PERM form, but keeps PERM System up for case status checks/withdrawals.

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Special Handling Cases for College/

University Professors

• Not filed within 18 months after competitive selection process completed.

– Conduct new competitive selection process

– Use modified PERM recruitment process

- National Print Ad and Posting

- Union might not allow

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Premium Processing for Form I-140

• When available:– Currently in H-1B nonimmigrant status;

– Reach the end of the 6th year within 60 days;

– Only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of AC21; and

– Ineligible to extend H-1B status under section 106(a) of AC21.

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DHS Immigration Enforcement

• Immigration enforcement against employers

• Enforcement history– Civil audits (previous approach)

• Current enforcement activity– Criminal investigations (change in the equation)

“We’re not really doing fines anymore . . . We prefer to conduct criminal investigations.” Marc Raimondi, ICE Spokesman.

“Usually the way it works is we get a couple of hundred administrative or criminal arrests and a few supervisors. Then we work our way up.” Pat Reilly, ICE Spokesman.

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DHS Immigration Enforcement

• What about the new Administration?

• Obama appoints Napolitano, who:• Signed into law an Arizona bill denying business licenses to

firms that knowingly hire illegal aliens.

• Has criticized the federal government for failing to secure the Mexican border and has requested sending national troops to guard the border.

• Called for mandatory participation in E-Verify program.

• President Obama:“We are a nation of laws and a nation of immigrants, and those two things we can join together. We can get serious about our borders and crack down on employers who are taking advantage of undocumented workers and undermining U.S. labor . . . .” (February 19, 2008; Washington Post.)

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• Effective I-9 Compliance Program is Critical

• Employees NOT Covered:

• All employees hired on or before November 6, 1986 (including part-time student workers)

• Casual hires (i.e., workers who fill a “sporadic, irregular, or intermittent domestic needs”).

• Independent contractors/employees of independent contractors (i.e., workers “who carry on independent business and are subject to control only as to results”).

Wal-Mart Exception

• Retention Requirements:

• Three years from the date of hire; or

• One year from the date of termination;

• Whichever of the two dates is later.

I-9 Employment Verification Form

(eligibility to work in U.S.)

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• “Constructive Knowledge” arises where an employer: (1) Fails to complete or improperly completes the Form I-9; or

(2) Has information available to it that would indicate that the alien is not authorized to work.

NOTE: Employee’s foreign appearance or accent is not relevant.

• Examples of Knowledge/Constructive Knowledge:(1) Confession;

(2) DHS Audit;

(3) Unusual Event in the Workplace (e.g., rumor of ICE officers and panicked scattering of employees);

(4) Rumors (?) ;

(5) Mismatch Letter from Social Security (?).

I-9 Employment Verification Form

(eligibility to work in U.S.)

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New Changes in Form I-9 (which must be used beginning on April 3, 2009):

• Narrows the list of acceptable identity documents.• Eliminates Forms I-688, I-688A, and I-688B (older versions of temporary

resident and employment authorization cards) from List A.

• Adds foreign passports with machine-readable immigrant visas to List A.

• Adds to List A valid passports for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands, along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association between the U.S. and FSM and RMI.

• Requires that all documents presented during verification process be unexpired.

• Section 1 allows employee to attest to being either a citizen or noncitizen national of the United States.

• Noncitizen nationals are persons born in American Samoa, certain former citizens of the Trust Territory of the Pacific Islands, and certain children of noncitizen national born abroad.

I-9 Employment Verification Form

(eligibility to work in U.S.)

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Penalties for employers that fail to follow applicable verification requirements (Federal Civil Penalties):

• Cease and Desist Order

• Civil Penalties:

– Knowing Employment of Illegal Aliens ($375 to $3200 per count on first offense—higher [up to $16,000 per count] on subsequent offenses).

Examples (IFCO, Georgia Peach Grower, Wal-Mart)

– Paperwork Violations ($110 to $1100 for each I-9 form in violation).

Examples (Disneyland)

– Debarment from entering Federal Contracts for one year under Executive Order.

I-9 Employment Verification Form

(eligibility to work in U.S.)

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Penalties for employers that fail to follow applicable verification requirements (Federal Criminal Penalties):

• Pattern and practice of hiring illegal aliens (up to 6 months).

• Knowingly hiring 10 unauthorized workers within 12 months (up to 5 years in prison).

• Harboring or inducing (up to 10 years – a government favorite).

• Providing false attestation for purposes of satisfying requirements for I-9 purposes (up to 5 years) or obtaining an immigration benefit (up to 10 years).

I-9 Employment Verification Form

(eligibility to work in U.S.)

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• Employer cannot discriminate against a “protected individual” because of national origin or citizenship in hiring, recruitment, referral, or discharge. 

• Document abuse prohibited – Common Document Abuse Situations:

1) Employer insists on specific documents in the I-9 verification process.

2) Employer requests verification-related documents before hiring the individual. 

Unfair Immigration Employment Practices

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• Penalties for Document Abuse

– Cease and Desist.

– Compliance for 3 years.

– Retain records of people applying for 3 years.

– Back pay and rehire.

– Civil fines ($325 to $3,200 per count).

– Debarment from participating in federal contracts (Executive Order No. 12989 (Feb. 16, 1996)).

Unfair Immigration Employment Practices

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Does E-Verify Apply to You?

• Federal Obligations• Executive Order 13465 and new regulations for

federal contractors.• Is your institution a federal contractor?

• New State Obligations • Many states require employers to participate in E-

Verify? • Public entities, state contractors. • Private employers.

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E-Verify and Federal Contractors

• Executive Order 13465, June 2008.

• Federal Regulations, original effective date – January 15, 2009.

– Pending legislation with DHS and Chamber of Commerce regarding implementation of regulations.

– Delayed effective date to May 21, 2009.

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Applicable Federal Contracts

• Prime contracts over $100,000 are covered.– Note: Prime contracts (over $100,000) with

performance terms less than 120 days are not covered.

• Subcontracts over $3,000 for services or for construction are covered.– Note: Subcontracts over $3,000 with performance

terms less than 30 days are not covered.

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Federal Contractors

• Exemptions:– Commercially available off-the-shelf items (COTS).– Bulk cargo, except agricultural products shipped as

bulk cargo, will be exempt.– Subcontracts for supplies.

• Does not include grants or cooperative agreements.– Exempts many universities and colleges from the

definition of federal contractor.

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States Requiring E-Verify

Public Employers• Arizona • Georgia • Mississippi • Missouri • North Carolina • Oklahoma • South Carolina • Utah

Private Employers• Arizona (now)• Mississippi

(staggered effective dates)

• South Carolina (all private employers effective July 1, 2010)

– NOTE: Prohibition in Illinois36

State Contractors

• California (City of Mission Viejo for contracts exceeding $15,000)

• Colorado • Georgia • Idaho • Minnesota (state contracts exceeding $50,000)• Missouri • Mississippi• Oklahoma • Rhode Island • South Carolina • Utah

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E-Verify Basics

• Works in conjunction with the I-9 process.

• Queries the Social Security and Department of Homeland Security (DHS) databases to determine the employment eligibility of a new hire.

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E-VerifyGetting Started!

• Choose the person in charge.• Register the company

– Corporate administrators– Program administrators– Users, passwords and database interaction.

• Execute the memorandum of understanding.• Mandatory tutorial.• Notice to employees (posters).

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What Happens Next?

• Do E-Verify query after I-9 process and not later than the 3rd day after an employee starts work for pay.

• Cannot E-Verify applicants / prescreening is prohibited!

• Must document reason for failure to timely E-Verify on I-9 Form.

• Case Verification Number - MUST record Case verification number on I-9 Form or print Case Details page and attach to I-9.

• Intermittent employees.40

Documents forE-Verify

• Employee must provide SSN.• When to do query – possible results

– Employment authorized– SSA or DHS tentative non-confirmation• Procedures regarding employee “contest” of TNC• Updating I-9 with required documentation– Final non-confirmations– Case resolution– Penalties

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CONCLUSION

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