August 9th, 2012 by Matthew Galati
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.
July 26th, 2012 by William Stock
Editor’s Note: Amanda Ketchum, a Senior Paralegal at the firm, is on leave for an internship this summer. Below is a guest post about her recent activities.
I can’t believe that my time in Rwanda is more than halfway over! Here’s what I’ve been up to:
Things have been falling into a pretty steady routine in terms of attending meetings and writing reports, but I occasionally get the odd assignment here and there. As this past week was a holiday for both the U.S. and Rwanda (who celebrates their Liberation Day on July 4th), I was tasked with various party-planning duties. Last week I called about 70 different people (including the President’s and Prime Minister’s offices!) to confirm whether or not they’d be attending the Embassy’s official (formal) celebration. At the actual event, my job was to greet arriving guests and show them around the compound (basically, point them in the direction of the refreshments!). I actually got to greet the Foreign Minister of Rwanda (equivalent to our Secretary of State) which was really exciting.
With the Pennsylvania Flag at the Embassy party
This afternoon is the Embassy’s “unofficial” Independence Day celebration, and they’re inviting all U.S. citizens who are currently in Rwanda to come to the Embassy for food, games, and fun. My only job will be to supervise some children’s games for about an hour, but the rest of the time I’ll get to enjoy the event, so I’m excited! Right now I’m working on compiling biographies of important Rwandan ministers and officials that will be put into a binder for the new Deputy Chief of Mission (“DCM” – the person next in line under the Ambassador), who will be arriving at Post in a couple of weeks. The new DCM will use these biographies before making courtesy calls to these influential Rwandans at their respective ministries/organizations.
On weekends I’ve been able to do some exciting things. A few weeks ago I camped out overnight at Akagera National Park – a safari park in the eastern part of Rwanda, near the Tanzania border. That was my first time that I’d ever been camping, and (aside from accidentally pitching our tent on a slight hill and waking up all scrunched onto one side of the tent), it actually wasn’t bad! We got to see some really cool including baboons, zebras, and giraffes. The best part was that you could get pretty close to the animals – like the pictured giraffe – and they didn’t run away! This coming weekend is the Kigali Music Festival, and some friends and I are planning on picnicking and attending some of the concerts throughout the weekend.
June 27th, 2012 by H. Ronald Klasko
The regional center EB-5, or Immigrant Investor, program enables businesses and real estate developers seeking capital apply to U.S. Citizenship and Immigration Services to become approved to accept investments from foreign investors. Each foreign investor, upon proving that his investment will create full-time jobs for ten U.S. workers, is able to apply for green cards for himself and his immediate family members.
The EB-5 program is a great example of a Congressionally-created win-win-win program. Communities, real estate developers and businesses win because EB-5 capital enables buildings to be built and businesses to expand that otherwise would not happen because of unavailability of capital from traditional sources. The U.S. labor market wins because hundreds of thousands of new jobs are created for U.S. workers. Eligible and worthy immigrants win by being able to immigrate to the U.S. and contribute to our economy.
Unfortunately, as currently administered by USCIS, the program is not realizing its full potential. The investment and job-creating purposes that Congress had in mind, and that the Administration fully supports, are being thwarted by ever longer USCIS processing delays and rules that change in the middle of the process with no notice, creating unpredictability and soaring denial rates. This is having a serious chilling effect on foreign investors who are otherwise ready, willing and able to put millions of dollars to work in communities around the country.
Currently, 60% to 65% of the regional center applications are denied. This statistic, in and of itself, is an indication that the program is clearly not functioning as it should. The relatively small percentage that are approved are often approved either too late to enable the project to go forward or long after the project has already commenced. Moreover, the frequency of requests for additional evidence (“RFE’s”)—sometimes several successive requests on the same case—shows that USCIS has been less than clear with stakeholders with respect to what it is looking for in an approvable case. This is just not the result that Congress intended when it created this promising program.
AILA’s EB-5 Committee has spent a great deal of time studying the problems that are endemic to the EB-5 program and prevent the program from achieving its Congressionally-mandated goals. The Committee suggests that the following “10 Point Program” could be implemented rather easily and could ultimately save the EB-5 program and maximize its job-creating potential:
- Provide a forum whereby USCIS representatives on a quarterly basis can advise regional center stakeholders of the issues it is seeing in applications that are producing the largest numbers of RFEs and denials. At the same forum, allow regional center stakeholders to provide lists of adjudicatory issues on which there is a lack of clarity.
- When new standards are going to be implemented that will affect large numbers of applications (whether it involves the methodology for the counting of jobs that will be created, or the structure of bridge financing, or any other aspect of an EB-5 transaction), provide notice to stakeholders in advance rather than issuing large numbers of RFEs on issues that were not issues at the time of filing.
- Implement USCIS Director Mayorkas’ idea of a Decision Board as promptly as possible. This Decision Board would be made up of economists and business analysts and would meet or conference with regional center applicants to discuss any issues that need to be resolved before a project can be approved.
- Hire a sufficient number of examiners to bring processing times to levels that make some sense in a time-sensitive, job-creating program such as EB-5.
- Instruct examiners that, except in rare instances, multiple RFEs should not be issued.
- Publish meaningful guidelines on what adjudicators want to see when adjudicating a regional center application. Most denials and RFEs are based on often-changing policies that are not contained in any regulation or even any government-issued memorandum.
- Make the regional center amendment process workable. Regional Centers are approved for specific geographical areas, specific industry codes and specific economic methodologies for counting job creation. Right now, if a regional center wants to amend its geography, economic methodology or industry code, the published processing time is 8 months – longer than filing a new regional center application. This is unworkable.
- USCIS has created a process – the exemplar I-526 – that enables a regional center to have a project approved for EB-5 investment prior to receiving investments. The problem is that, despite a $6,230 fee and an 8 month processing time, USCIS does not consider itself bound by any approval. USCIS must make this process meaningful as a way of saving time and adjudicatory resources. If it is not meaningful, stakeholders should not be expected to pay large filing fees and wait long periods of time; and the process should be eliminated.
- Provide substantive responses to inquiries sent to USCIS’s EB-5 mailbox.
- Last, but by no means least, increase the monitoring of approved regional centers. We all agree that if there are any non-compliant regional centers or project developers, they do harm to the program and should be eliminated.
Developers who invest hundreds of thousands of dollars putting together projects to present to USCIS deserve clarity and consistency. These prescriptions could be implemented immediately. The result would be not only a benefit to developers but also to the country, which would attract greater amounts of foreign direct investment and create more jobs for U.S. workers. We hope that USCIS will look favorably upon these constructive suggestions.
June 25th, 2012 by William Stock
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).
June 11th, 2012 by William Stock
Editor’s Note: Amanda Ketchum, a Senior Paralegal at the firm, is on leave for an internship this summer. Below is a guest post about her activities so far.
My First Three Weeks
At the top of Mt Kigali, Rwanda
In connection with my graduate studies, I recently received an opportunity to spend the summer interning with the U.S. State Department. Specifically, I’m spending ten weeks working in the Political & Economic section of the U.S. Embassy in Kigali, Rwanda. This section is responsible for analyzing and reporting on the full range of political activities in Rwanda, including the government, foreign affairs, human rights, the judiciary, political-military issues, and social and religious affairs. The section also provides Washington and Embassy officials with reporting and analysis of significant economic and financial developments in Rwanda in order to advance U.S. economic and commercial policies. Although I’ve only been here for just over three weeks, I have already had a lot of fantastic experiences – both in and outside of work. I’ve also been able to meet some really wonderful people who have gone out of their way to make sure that I’m settling in and having a good time. Here’s what I’ve been up to so far:
Work – My first assignment was to develop a new “Business” section of the Kigali Embassy’s website, which includes information on doing business in Rwanda (for U.S. companies), doing business in the U.S. (for Rwandan companies), and key business links and economic reports for those looking to brush up on their U.S.-Rwandan bilateral investment treaties. Here’s the link to the section of the site that I helped develop with the Embassy’s Economic/Commercial Officer, Joe Palombo.
On a more day-to-day basis, I’ve been attending meetings at various Rwandan ministries and judicial offices and drafting summaries of these meetings that are turned into cables (memos) and distributed to officials in D.C. and to other Embassies worldwide. I’ve also been attending various Embassy meetings to be briefed on the current state of affairs from a variety of different intra-post departments, including the Consular (yay!) and Public Diplomacy sections of the Embassy, as well as the CDC, USAID, and Peace Corps, which all have a strong presence here.
Fun –As I’m here during the dry season (sunny with highs in the 70’s/80’s every day), it means that there are plenty of outdoorsy activities to keep me occupied on the weekends. Two weekends ago I ran in the Kigali Peace Marathon (not the actual marathon – but the 5K portion of the run!) which was really great. After the race, one of the Consular officers hosted a barbeque at his house, so I more than made up for all the calories I burned off during the run. There was also a volleyball game that turned into a pretty intense (but fun!) tournament, however, so I was able to re-burn off my grilled goat kabobs. Last weekend, a group of friends and I went hiking on Mt. Kigali, which (I just found out thanks to Wikipedia) is 6,075 feet above sea level. The picture above shows of all of us who made the hike, as well as some local children that decided to follow us on our trip. The picture was taken by a Rwandan that said he never used a camera before, so it’s a little off-center, but you get the idea! Next weekend I’ll be camping in Akagera National Park in the eastern part of Rwanda, and will be able to get up close to some wild animals. I’ll be sure to send updates and pictures along!
April 26th, 2012 by Matthew Galati
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.
April 4th, 2012 by Matthew Galati
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.
March 23rd, 2012 by William Stock
Late today, USCIS posted an announcement on its website that nationals of Syria will be eligible to apply for Temporary Protected Status (TPS) in the near future. USCIS indicated that Syrians would be designated for an 18-month period of protection, and that details of how and when to apply would be forthcoming in the Federal Register next week.
TPS is a temporary form of permission to remain in the United States for humanitarian reasons. TPS prevents the removal of nationals of countries undergoing civil strife, natural disasters, and similar country conditions. It provides work authorization during the period of TPS, but does not provide for any long-term status or permanent residence after the government decides TPS is no longer warranted.
Nationals of Syria eligible for TPS should consult an attorney about the advantages and disadvantages of applying before seeking TPS, particularly if they currently hold a lawful nonimmigrant status. In addition, Syrian nationals who fear to return to Syria should consult an attorney to discuss other possible forms of relief from removal.
March 21st, 2012 by H. Ronald Klasko
I recently returned from a two week trip to China, which included a presentation at the International EB-5 Summit in Shanghai. I left with two distinct and related impressions:
The first impression is that there are far more interested EB-5 investors than there are investment projects that are considered to be low risk for immigration purposes (particularly condition removal) and high probability for the investor getting his money back in a definable period of time.
Second, and related, is the difficulty that agents who promote the projects to investors have in performing both the immigration due diligence and the financial due diligence that is necessary to advise investors.
The lack of good projects is, in part, a function of the USCIS long hold on I-924 adjudications pending resolution of its new position on the economic methodology to be used in tenant occupancy projects. Perhaps with RFEs being issued on all of those projects, some of the RFE responses will result in approved projects that can be made available to investors.
It is difficult to understand how overseas migration agents can be expected to perform the required immigration due diligence necessary to properly advise investors. Immigration due diligence of projects is both complex and ever-changing. Complicating matters is the fact that the Service steadfastly sticks to its position that it is not bound by an approval of an exemplar I-526 petition. Migration agents should certainly seek the counsel of experienced EB-5 immigration lawyers to perform immigration due diligence prior to making a decision to promote a particular project to investors. Failure to do so has resulted in some significant losses by investors and by their agents.
March 16th, 2012 by William Stock
The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. Klasko, Rulon, Stock and Seltzer has also learned that the Visa Control Office of the State Department is predicting a retrogression of priority dates in the India and China EB-2 category, effective in the May or June Visa Bulletin, to a 2007 priority date. It is not expected that the EB-2 category for natives of “All Other” countries will be affected.
Applicants for adjustment of status must have a priority date earlier than the priority date listed as “available” in the Visa Bulletin each month in order for their application to be filed, or for a pending application to be approved. As of March 1, 2012, that priority date has been set at cases with a labor certification (or EB-2 I-140 not requiring a labor certification) filed prior to May 1, 2010 for natives of India and China. The Visa Control Office rapidly advanced the priority dates in order to build an “inventory” of cases ready to be approved at the USCIS offices, and those cases will now be processed by USCIS between now and the end of the government’s fiscal year, September 30.
For the month of April, the Visa Bulletin holds the priority date for India and China EB-2 steady at May 1, 2010. For May, the Visa Control Office recently announced that they expect the priority date will “retrogress” or be set earlier, possibly as early as August of 2007. This retrogression will mean that new applications for adjustment of status will not be able to be filed after April 30, 2012 for cases with priority dates in 2008, 2009 and early 2010. Priority dates are not expected to advance again until October 1, 2012, at least, when the government’s new fiscal year begins.
It is very important to note that if an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again. Since the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, during the time the priority date is retrogressed.
Due to this recent announcement, we recommend that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so by late April, as their opportunity to file the application will likely end as of May 1, 2012, and will not return until at least October 1, 2012 (and likely much later).