Archive for the ‘Hot Questions’ Category
Wednesday, April 3rd, 2013
When considering the prospects of new immigration legislation from Congress aimed to modernize the system or address legalizing the millions of individuals out of status over the past few years, many of us have felt like Charlie Brown trying to kick a field goal. Time and time again we’ve been disappointed when Lucy pulled the ball away.
Discussion of immigration reform has been incessant since the last “major” revision to the Immigration and Nationality Act in 1996. The first version of the DREAM Act was introduced in Congress in 2001, but despite reintroductions and revisions, it has never made it to the Oval Office for signature. Six years later, the Comprehensive Immigration Reform Act of 2007 was introduced in the Senate but failed to materialize support to bring about an up-or-down vote. Indeed, for the past decade, only relatively minor piecemeal legislation and Executive Branch policies revising enforcement priorities have been the headline-grabbing changes to the system.
But this year (and this Congress) is shaping to be quite different.
News broke Friday night that the AFL-CIO and the Chamber of Commerce reached a deal on a new relatively lower-skill “guest worker” visa, presumptively dubbed the W-visa. Led by the so-called Senate bipartisan “Gang of Eight,” the two constituent groups have reached a preliminary deal which allows workers the opportunity to receive employment-authorized visas without depressing U.S. workers’ wages. For years the lack of a consensus as to a visa category which allows those to take jobs in the service industries and agriculture – which some say is a major driver of illegal immigration – has stymied comprehensive reforms notwithstanding a broader consensus on legalization and increased enforcement.
The agreement reached by the two groups sets forth the following general provisions:
- The volume of W-visas will be capped, yet fluctuate from year to year in response to the economy. The first year, slated to begin in 2015, will cap W-visas at 20,000. The numbers will then increase to 35,000 in the second year, 55,000 in the third, and 75,000 in the fourth.
- In the fifth year, the number of W-visas will be capped at a maximum of 200,000 but the actual number available to employers will be determined by a new Bureau of Immigration and Labor Market Conditions, relying upon on labor market data. For instance, if economic indicators are weak, there could be as few as 20,000 W-visas in any given cycle.
- Similar to the H-1B, W-visa employers will need to comply with wage restrictions that require them to pay the greater of 1) the actual wages paid by an employer to U.S. workers with similar levels of experience in similar positions, or 2) the “prevailing wage” determined by the Department of Labor for the occupational category in question.
- However, unlike the H-1B, the W-visa is not temporary, but transitional. Beneficiaries will have the ability to self-petition for Green Cards after a year. Furthermore, the W-visa will not be tied to a single, discrete employer, allowing workers to leave abusive businesses.
- W-visa workers will be protected by state and federal employment laws. W-visa beneficiaries cannot be used by employers who have laid off workers within the preceding 90 days, and those enduring a strike or lockout.
This new agreement, forged in principle between two groups which historically have not seen-eye-to-eye, evidences a strong break in past failures to bridge the gap between organized labor and business on this hot-button issue.
Politicians from both sides of the aisle have expressed optimism that comprehensive legislation will soon be introduced. On Sunday, Senator Chuck Schumer (D-NY) told NBC’s Meet the Press that he is “very, very optimistic” that the group of lawmakers will have a deal this week and that legislation could be introduced as early as the next. Another Member of the Gang of Eight, Senator Lindsey Graham (R-SC), told CNN’s State of the Union that “[C]onceptually, we have an agreement between business and labor, between ourselves.”
But don’t pop the champagne quite just yet. Members have cautioned that while there may be an emerging agreement for the basic principles behind Comprehensive Immigration Reform, legislation has still yet to be drafted. Senator Marco Rubio (R-FL) cautioned to the Associated Press that “[A]rriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 43 states that weren’t part of this initial drafting process.”
Tuesday, August 14th, 2012
Human Resources personnel possessing that keen eye for detail required for properly completing Form I-9 might have taken note that the current version of the form (Rev. 08/07/09 Y) contains an Office of Management and Budget control number expiration date of August 31, 2012. Yet to date, the Department of Homeland Security has not finalized a replacement form. In an announcement made yesterday on I-9 Central, USCIS has directed all employers to continue using the current version “until further notice.”
USCIS has directed employers to continue to use the Rev. 08/07/09 Y version even after the OMB control number expiration date of August 31, 2012 has passed, signaling that a new form will probably not be available for public consumption within the next two weeks. Back in March, the government proposed changes to the I-9 and created a draft two-page document with expanded instructions, subject to notice and comment from the general public. As we await the government to review its feedback and weigh its options for revision, yesterday’s announcement clarifies that employers should continue to use the current form and follow the current instructions until a new version is finalized.
We will continue our coverage of this issue as it unfolds. In the meantime, you can head over to our Worksite Compliance web site for our coverage involving issues relating to employment of work-authorized individuals, the latest developments in I-9 audits, E-Verify, and general immigration-related employment guidance.
If you have any questions regarding your company’s Form I-9 procedures, contact your Klasko Law attorney for specific guidance.
Thursday, August 9th, 2012
In a decision dated June 7, 2012, the Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (“OCAHO”) handed down a substantial fine against a small business employer for failure to properly complete Form I-9.
In particular, Administrative Law Judge Ellen K. Thomas ruled that failure to complete Form I-9 Section 2 by reporting only List B on the I-9 constitutes a “substantive violation” of federal employment verification laws, even if photocopies of List A and/or C documents are kept in employee files. This finding is opposed to a ruling that such a failure to complete Section 2 would constitute a mere “technical violation” were lesser fines would have been imposed.
In U.S. v. Four Seasons Earthworks, the 22-person employer was served with a Notice of Inspection and Administrative Subpoena by Immigration and Customs Enforcement (“ICE”). Upon review of I-9s relating to 19 employees – including several family members of the family-owned business – ICE found that the employer entered information in Form I-9 Section 2 corresponding only to a List B document. Under the I-9 regulations and instructions, an employer must verify employment eligibility by inspecting a List A document (substantiating both identity and employment authorization, such as a U.S. passport) or by inspecting a List B (substantiating identity, such as a state driver’s license) and List C document (substantiating employment authorization, such as a social security card). The employer must then use those documents to fill out the form properly.
The employer argued that because it made photocopies of List A or List B and List C documents, it nonetheless complied with the regulations and any such violations should be considered to be merely technical. However, the OCAHO ruled that the regulations specifically provide that photocopying does not relieve the employer from the requirement to fully complete Section 2.
This case should serve as a warning to other employers to ensure that I-9s are properly completed and that Human Resources personnel are properly trained. It is important to note that both ICE and the employer were in agreement that each worker for the company was authorized to accept employment. Nonetheless, because the employer failed to properly complete Section 2, the violations were ruled to be substantive. Under the law, employers can face penalties ranging from $110 to $1,100 for each Form I-9 substantive violation.
In determining the level of the penalties, the ALJ found that there were mitigating factors that warranted a reduction in penalties including the following: 1) the employer was a small business; 2) it suffered an economic downturn and a related business went bankrupt; 3) it acted in good faith; and 4) its violations were not as serious as the total failure to complete an I-9 or obtain an employee signature. As such, the ALJ imposed a fine of $500 for each violation. Indeed, the employer could be considered to be fortunate to an extent considering that it could have faced a fine of $20,900 had these factors not been in its favor. Other companies in this situation might not have been so “lucky.” The case is important as it shows that even small employers with a legal workforce can face substantial fines simply because their I-9s are not properly completed.
Contact your Klasko Law attorney for guidance regarding federally mandated Form I-9 for employers and other issues relating to employment verification and worksite compliance.
Monday, June 25th, 2012
Today, the Supreme Court issued a 5-3 decision in Arizona v. United States, the Obama Administration’s challenge to Arizona’s controversial immigration-related enforcement provision.
The Court ruled, generally, that it is the Federal Government, and not the states, which regulate immigration matters, and that three of four provisions that were the subject of the suit were “preempted,” or were so inconsistent with the federal regulation of immigration that they could not stand. The three provisions struck down were Arizona’s attempt to a) create its own requirement for foreign nationals to register with the immigration authorities and carry proof of such registration; b) criminalize the act of working without authorization in the United States, which federal law does not; and c) authorize state and local police to arrest people the police suspect of being removable from the United States.
The Supreme Court did not hear the challenge to the final provision, which allows Arizona police to question the immigration status of any person they have a “reasonable suspicion” to believe is in the United States unlawfully. The Court held it was too early to determine whether that provision, as enforced, unlawfully subjects some citizens and permanent residents to unconstitutional detention while their immigration status is verified.
The Court’s decision is a blow to those who would have states attempt to make their own laws and “attrition through enforcement” efforts except in the narrow area of business licensing recognized last year in the court’s Whiting decision.
It is also interesting to note that the Court incidentally validated the President’s authority to defer enforcement action for DREAMers:
“Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.”
Arizona et al. v. United States, 567 U.S. ___ (2012) (slip op. at 4-5) (citations omitted, emphasis added).
Thursday, April 26th, 2012
In the wake of the Supreme Court’s decision upholding Arizona’s legislation mandating the use of E-Verify for its in-state employers last year, several other states have followed suit and enacted their own E-Verify provisions.
In order to make some sense of these disparate laws, our team has updated and reorganized our informational State-by-State Legislation Survey which can be found on our Worksite Compliance web site. We have summarized employer E-Verify obligations when conducting business in, or contracting with entities of, the 50 states and D.C.
E-Verify laws are in a near-constant state of change and the question of whether your organization is required to enroll depends upon federal, state, and local laws. For more information on how E-Verify might impact your business, contact your Klasko Law attorney.
Wednesday, April 4th, 2012
As Bill Stock mentioned in a client alert last month, the Department of State has halted the dramatic acceleration of India and China’s EB-2 priority dates which we had observed throughout much of 2011. Instead, the Visa Control Office of the State Department predicted significant retrogression in these two categories, walking back priority dates approximately three years from May 1, 2010 to August 2007.
In response to questions from the immigration law community last week, Department of State Chief of Immigrant Visa Control and Reporting Charlie Oppenheim provided an updated forecast of employment-based visa date movements for the months of May through July:
Employment-Based Priority Dates (May-July 2012)
Projected Movement from April 2012 Visa Bulletin
||Expected to stay current
|Second – Worldwide
||Expected to stay current
|Second – India & China
||Retrogression to August 15, 2007 (now May 1, 2010)
||Three to five weeks forward (now April 8, 2006)
|Third – India
||Two weeks forward (now September 1, 2002)
|Third – China
||Up to six weeks forward (now March 1, 2005)
||Expected to stay current
||Expected to stay current
Mr. Oppenheim has confirmed that, effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007 or later. Mr. Oppenheim stated that visa applicants processing in April at consulates abroad will still receive visas, as those numbers were allocated before the cut-off date was established.
We have recommended that any EB-2 adjustment applicant with a priority date before March 2010 file immediately, so that his or her application is received at USCIS on or before April 30, 2012. USCIS will continue to accept for processing those applications for adjustment of status for individuals with priority dates prior to the date established in the April 2012 Visa Bulletin until the end of this month. Those cases with priority dates of August 15, 2007 or later will be forwarded to and held by Visa Control at the Department of State in a “pending” file until new visas are available on October 1, 2012, the beginning of the 2013 fiscal year. Applicants will still be eligible for employment authorization and advance parole travel authorization. The May Visa Bulletin is expected to address the EB-2 movement.
Contact your Klasko Law attorney if you have specific questions regarding eligibility for filing of adjustment of status and other benefits.
Wednesday, July 20th, 2011
USCIS Director Ali Mayorkas’ proposal for reforming and improving the EB-5 process has the potential to be a major step forward in making the EB-5 program more user friendly for real estate developers and other businesses seeking foreign investment capital.
Director Mayorkas’ proposal has three major elements.
One element of great importance is providing for accelerated processing (target two months) and premium processing (15 day processing) for “shovel ready” projects. This would apply to the regional center designation application, the exemplar I-526 project preapproval and the petitions of the investors in these projects. Although the definition of “shovel ready” is ambiguous and might better be defined as a project for which the developer is ready to seek investment capital, the concept is a very important one. Present processing times are unrealistic, and developers cannot be expected to wait the 12 to 18 months necessary for a regional center to be approved, a project to be approved, and an investor’s petition to be approved.
The second key component of the Mayorkas proposal involves the hiring of qualified expert personnel to adjudicate regional center designation applications and project pre-approval applications. Director Mayorkas proposes to add economists and business analysts for this purpose. Economic development specialists might also be added to the USCIS staff. The issues to be adjudicated in these applications are both complex and technical, and the Immigration Service needs to bring to the task professionals experienced in dealing with these issues.
The third major component of the Mayorkas proposal is to change the regional center and project pre-approval process from an adversarial to a consultative process. The Director proposes to change the present petition filing/RFE/RFE response process into one where the developer would have the right to a hearing with the expert professionals described above in order for the Service to articulate any questions or concerns and for the developer and his team of professionals to provide answers. This should result in faster, better and more informed adjudications.
The public has had an opportunity to comment on the proposal. Although commenters no doubt suggested improvements to the proposal, there is no question that implementation of the proposal, with whatever changes are deemed appropriate, will be a major step forward in making the EB-5 program more attractive for businesses seeking capital. This would be consistent with President Obama’s Select USA Initiative to attract more foreign direct investment into the U.S.
Although the proposal is a major step forward, it means nothing unless and until it is actually adopted by USCIS. The public eagerly awaits notification of its implementation.
Tuesday, June 7th, 2011
Yesterday, the Supreme Court of the United States vacated an order ruling unconstitutional the Illegal Immigration Relief Act ordinance of Hazelton, Pennsylvania. At issue is the local law that would penalize landlords who knowingly or with reckless disregard rent to an “illegal alien”, which is defined as “an alien who is not lawfully present in the United States” according to federal law. Separate provisions penalize employers hiring aliens without work authorization.
The Court remanded the case to the Third Circuit for further consideration in light of its rationale in Chamber of Commerce of the United States v. Whiting. As we mentioned last month, the Court’s ruling in Whiting will have nationwide effects and may lead to varying state law approaches to immigration-related laws and penalties.
It is important to note, however, that while the law at issue in Whiting and that enacted by Hazleton have some similarities, the Supreme Court has only upheld non-federal laws dealing with employment eligibility and the corresponding penalties for noncompliance. It remains to be seen how the Third Circuit will reconsider the legal issues presented by the Hazelton ordinance.
Thursday, May 26th, 2011
The U.S. Supreme Court today issued an opinion upholding the “Legal Arizona Workers Act” which mandates private employers’ use of E-Verify and supplies state-law sanctions against those who knowingly or intentionally employ aliens without work authorization.
The decision has far-reaching effects outside of Arizona. By upholding the law, the Supreme Court has cleared the way for 50 different state laws regarding employment eligibility verification and the penalties for noncompliance. As such, employers need to be aware of the laws in their state when hiring new personnel. For further information regarding E-Verify, visit our Worksite Compliance web site. Contact your Klasko Law attorney if you have specific questions regarding employment eligibility verification for your company or organization.
Friday, April 1st, 2011
While the USCIS numbers of pending I-485 make me relatively pessimistic on movement for India and China EB-2, the State Department’s internal case management staff are feeling more optimistic. In fact, we are seeing the National Visa Center issue fee bills for EB-2 India immigrant visa files with priority dates as late as November 2007, which would seem to indicate that NVC, at least, thinks the visa numbers will move at least that far ahead this year.
A caveat against reading too much into the NVC action: recall that it was imperfect information-sharing between USCIS and the State Department that led to the July 2007 “Visagate” debacle, and NVC likely has a small minority of the overall number of visa petitions with India and China EB priority dates in 2006 and early 2007, since so many of those beneficiaries could file for adjustment of status in July of 2007.
It’s also possible that NVC is simply trying to get cases set up with fees paid and documents submitted in case the numbers stay current for the rest of the fiscal year – but applicants would lose their filing fees if the numbers retrogress later this year.
We will have to wait for the May Visa Bulletin from the State Department, likely released by April 13 or so, for more detailed information on the State Department’s thinking.