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.

Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.”  The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”).  The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).

What Are the EAR and ITAR Regulations?

The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.  An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship.  More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page.  The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States. 

Which Employers Are Likely to Require Licenses?

Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129.  In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available.  However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.

What Additional Responsibilities Are Required Now of All Petitioning Employers?

With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared.  Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies.  For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary. 

Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations .  Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary.  If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.

The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested.  Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance. 

The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129.    If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.

Government agencies have joined together to create the perfect worksite enforcement storm.  Immigration Customs and Enforcement (ICE) has engaged in a record breaking number of I-9 audits and inspections.  Audits have resulted in more than $50 million in total sanctions with average penalties for each company of $110,000.  Not to be outdone, USCIS, the Department of Labor and the Fraud Detection and National Security Unit are also conducting investigations and worksite enforcement activities.  At the same time, the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices (“OSC”) has launched a record number of claims alleging discrimination in the I-9 and E-Verify process.

Klasko, Rulon, Stock & Seltzer, LLPis holding a free webinar on Wednesday, December 15, 2010 at 2:30 pm EST to discuss developments and provide proactive strategies and solutions so that your company can successfully weather the storm.  There is a great deal you can do to protect your business and stay in compliance.

Topics will include:

       *  Increased I-9 Enforcement and Penalties
       *  Criminal Enforcement and ICE: Managers and HR at Risk
       *  Fraud Detection and National Security (FDNS) Investigations
       *  E-Verify and Data Mining: What Are They Looking For?
       *  Information Sharing Agreements Between USCIS, ICE and OSC
       *  OSC Discrimination Claims
       *  Practical Strategies and Best Practices to Protect your Company NOW

Don’t miss this opportunity to learn from Elise A. Fialkowski and Kate Kalmykov, two of the nation’s leading attorneys on worksite compliance.  Register here.

Please feel free to forward this invitation to colleagues and others that may be interested.

Title:     Increased Immigration & Worksite Enforcement: Strategies and Solutions to Weather the Perfect Storm
Date:    Wednesday, December 15, 2010
Time:    2:30 PM – 4:00 PM EST

Space is limited.  Register now!

ICE announced that since January 2009, it has conducted I-9 audits of more than 3,200 US employers, more than ever before. By comparison, in fiscal year 2009—itself a banner year for I-9 audits–ICE conducted approximately 1400 audits. The audits conducted since January 2009 also resulted in record breaking penalties–ICE debarred 225 companies and individuals from doing business with the federal government and imposed approximately $50 million in sanctions for worksite enforcement violations. The increase in audits and sanctions is dramatic–ICE explained that the figures for just this year are higher than the total amount of audits and debarments for the entire Bush administration.

ICE also actively pursued criminal enforcement of employers–in fiscal year 2010, ICE charged 180 business owners, employers, managers, or supervisors with hiring illegal aliens, up from 135 in fiscal 2008 and 114 in fiscal 2009.

ICE pledged to continue aggressive enforcement against employers stating “enforcing worksite laws not only promotes fairness in the workplace, but it also substantially reduces the incentive for aliens to enter the United States illegally.”

These record breaking numbers reflect implementation of a new worksite enforcement strategy first announced by the Obama administration in April 2009. Rather than large scale raids, the new focus is on employers. As part of this strategy, ICE identified I-9 audits as an important administrative tool in building criminal cases, issuing civil penalties such as fines and bringing employers into compliance with the law. Not only will ICE use traditional criminal enforcement methods, but the guidance to the field emphasizes that administrative tools will be used “to advance criminal cases, and in the absence of criminal charges, to support the imposition of civil fines and other available penalties.” Indeed, the guidance makes clear that the “the most important administrative tool is the Notice of Inspection (NOI) and the resulting Form I-9 audit” as it will not only support the imposition of civil fines and other available penalties, but it “will often serve as an important first step in the criminal investigation and prosecution of employers.”

Consistent with this use of I-9 audits as the key administrative tool, ICE announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. As part of this initiative, in the first week of July 2009 alone, ICE issued Notices of Inspection (NOI) to over 650 employers across the country. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008. As explained in earlier postings, ICE continued such widespread audits throughout the year, ultimately resulting in over 3200 audits. This widespread enforcement initiative is much different than any in the past. In the past, initiatives often focused on the most likely offenders—employers in industries such as meat-packing, construction, landscaping and manufacturing—commonly believed to regularly hire unauthorized workers. While these businesses were included within the I-9 audits, the reach was much broader to include a wide variety of businesses throughout the entire country. The message is clear—no employer is safe from an I-9 audit and investigation.

In order to avoid potential liability, employers are well advised to develop and implement detailed I-9 policies and practices. ICE recommends that employers, at a minimum, establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process; permit the I-9 and any E-Verify process to be conducted only by individuals who have received training; and include a review of the completed I-9 and documents by a second person as part of each employee’s verification to minimize the potential for a single individual to subvert the process. Regular audits–conducted before ICE comes knocking on the door– are also key to obtain compliance and limit liability.

For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com

Abercrombie & Fitch used electronic software to complete the I-9 forms and retain the appropriate records as required by the Immigration & Nationality Act.  The audit revealed numerous deficiencies in the I-9 software that the company had selected.  Since the initial investigation, Abercrombie & Fitch has taken steps to cure the deficiencies in its I-9 procedures to ensure that future violations do not occur. 

In its press release about the settlement, Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan, stated that, “Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance…We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.”  The I-9 regulations provide that if the employer uses an electronic I-9 system and that system does not meet the standards for data capture and record-keeping, ICE may invalidate the I-9s, leaving employers like Abercrombie vulnerable to expansive fines.

Klasko reminds employers that selecting an appropriate software platform is essential for those companies making the transition to electronic completion and storage of the Form I-9.  If an employer chooses to move to an electronic I-9 compliance system, the software must meet certain standards to capture the required data and retain the same content as the paper I-9.  Your Klasko Law attorney is integral in both sending requests for proposals to electronic I-9 vendors and determining whether all of the elements of the paper I-9 are present in the software platform.  For more information, visit our Worksite Compliance website and contact your Klasko Law attorney.

One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship.  Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.

In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions.  He  requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status.  Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.

OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.”  Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.

OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision.  OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship.  OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:

1.  Are you legally authorized to work in the United States?   _____ Yes _____ No

For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.”  (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)

2.  Will you now or in the future require “sponsorship for an immigration-related employment benefit?”  _____ Yes _____ No

This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers.  If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.

The redesigned card will offer a more secure format.  USCIS encourages anyone who holds a permanent resident card without an expiration date to apply to replace their cards with the redesigned version.

Employers should also ensure that they are familiar with the new card as employees may be presenting this version as evidence of identity and employment authorization in relation to the Form I-9 and/or E-Verify.

• Employer Compliance Update – Site Visits, I-9 / LCA Inspection and E-Verify (MP3)
• New Systems at DOL – iCert and Prevailing Wages (MP3)
• H-1B – New Developments(MP3)
• PERM / EB-2 and 3 Quota Update (MP3)
• EB-1 2010 (MP3)
• Visa Application and CBP Update (MP3)

Seminar webpage: KRSS Spring Training: How to Win When the Government is Playing Hardball

E-Verify is a free, Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA).  It allows employers to verify the employment authorization of newly hired employees.  Based on the information provided by the employee on his or her Form I-9, E-Verify checks this information electronically against records contained in USCIS and SSA databases.

On June 11, 2008, President George W. Bush amended Executive Order 12989 to direct all Federal departments and agencies to require Federal contractors with a Federal contract that contains the FAR E-Verify clause, to use E-Verify to verify the employment eligibility of employees performing work under a qualifying Federal contract. On November 14, 2008, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council published the FAR final rule. 

 
For more information on E-Verify and FAR please visit our website www.worksite-compliance.com or contact a Klasko Law attorney.