April 10, 2014

H-1B Cap Met in a Quick 5 Days

This year’s H-1B cap was reached in a mere 5 days, a rate rapid enough to aggravate members of the Silicon Valley tech industry. The speed at which the cap was met indicates the great need for skilled foreign workers, especially software engineers and the like in Silicon Valley. Tech companies well as companies in numerous other industries readily use H-1B visas and are frustrated that the number given out is capped at 85,000 (including the 20,000 reserved for applicants with a U.S. Master’s degree). USCIS has stated that it received a total of 172,500 H-1B petitions this year.

Industry representatives have for years pushed Congress to increase the quota. A bill already passed by the Senate, though waiting on a vote from the House of Representatives, would increase the number of visas to somewhere between 115,000 and 180,000 per year. However, immigration reform has been met with strong resistance by lawmakers, especially in the Republican-controlled House.

Critics of raising the quota believe an increase would undermine the U.S. workforce. They argue that work visas such as the H-1B allow U.S. employers to hire foreign workers and pay them less than what they would pay U.S. workers. Additionally, the tech industry has been further criticized for its support of “stand-alone” legislation, which would increase the H-1B quota without addressing other issues embedded in immigration reform.

Nonetheless, representatives from tech leaders such as Yahoo!, Cisco Systems, NetApp, and Hewlett-Packard recently met with 65 members of Congress to discuss the H-1B cap. Tech industry officials state that if Congress does not address the H-1B issue this year, they fear the United States will be confronted with the debilitating reality of losing out on highly skilled professional foreign workers that are vital to economic progress, innovation, and job creation. Still, many remain hopeful and are gearing up for this summer, which will likely see increased efforts to raise the quota.

For more information, please see San Jose Mercury News article “H-1B visa cap reached after just five days as valley executives lobby to expand the program” and USCIS’s press release “USCIS Reaches FY 2015 H-1B Cap."

March 3, 2014

How to Update or Correct Your Immigration Records

USCIS identifies 5 ways to update or correct immigration records, depending on which document must be changed. Employees should be aware of each of these ways, especially after the resolution of an E-Verify Tentative Nonconfirmation (TNC). E-Verify is an online database that employers can use to confirm the employment eligibility of newly hired employees. The employer representative submits information provided on the Form I-9 to compare with government databases. A mismatch of information results in a TNC, of which the employer must alert the employee to take steps to resolve. Notably, the employee is allowed to work until the TNC is resolved.

TNCs may be issued because the employee’s immigration records themselves are inaccurate. Correcting these inaccuracies can prevent future TNCs and other employment and immigration-related issues down the road. After resolving a TNC, USCIS recommends to the employee the following methods to correct any inaccuracies in his or her immigration records:

(1) Contact USCIS to correct Form I-551 (Lawful Permanent Resident card) or Form I-766 (EAD card). The employee may schedule an appointment for an in-person interview at a local USCIS office on the Infopass website or call 1-800-375-5283.

(2) Submit a Privacy Act Amendment Request in writing. The written request should include (a) the reason the employee is submitting the request; (b) the information that is inaccurate; (c) proposed changes to the record; (d) date and place of birth; (e) a return address; (f) copies of the inaccurate immigration or citizenship document; (g) reason it is inaccurate; (g) A-File number and/or the full name; (h) notarized signature of the applicant; and (i) other information that may help locating the record. The request is submitted to the Freedom of Information Act/Privacy Act (FOIA/PA) office:

Privacy Act Amendment
USCIS
National Records Center
FOIA/PA Office
P.O. Box 648010
Lee’s Summit, MO 64064-8010

If the employee does not know the information that needs to be corrected, he or she may submit Form G-639, FOIA/PA request, to obtain his or her records. The Form can be downloaded off the USCIS website. The Form should be sent to the address above and the envelope marked with “Privacy Act Request” rather than “Privacy Act Amendment.”

(3) Contact USCIS or CBP to correct a Form I-94. If the inaccuracy is on an USCIS-issued I-94, the employee can call 1-800-375-5283. If it is on a CBP-issued I-94 (i.e., one issued when the employee entered the US), the employee must visit a local CBP Deferred Inspection Site, Port of Entry, or Port of Admission. A list of these locations is available online at the CBP website (click the “Ports” link at the bottom of the page).

(4) Visit the USCIS website for information on how to renew or replace an immigration document.

(5) Contact the Student and Exchange Visitor Program (SEVP). If the employee is a student or exchange visitor, he or she can visit the ICE website for information on how to update records for students or exchange visitors.

For more information, please read through USCIS’s Fact Sheet on the topic.

February 28, 2014

March 2014 Department of State Visa Bulletin

The new visa bulletin is out at this link: March 2014 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (November 15, 2004) and China (February 15, 2009); EB-3 is at September 1, 2012 for all countries, except India (September 15, 2003) and Philippines (May 1, 2007); EB-3 other workers is at September 1, 2012 for all countries, except India (September 15, 2003) and Philippines (May 1, 2007); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at September 8, 2013 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of September 1, 1990.

February 26, 2014

DOL Can Investigate All H-1B Employees Based on a Single Aggrieved Party Complaint

On January 29, 2014, the Administrative Review Board (the “Board”) decided Administrator, Wage and Hour Div. v. Greater Missouri Medical Pro-Care Providers, Inc., in which it addressed two issues related to the scope of an H-1B investigation by the DOL Wage and Hour Administrator (ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014)). The Board upheld the ALJ’s finding that the Administrator has authority on the basis of a single aggrieved party complaint to investigate potential INA violations of H-1B workers of the same employer who have not filed an H-1B complaint. However, Board reversed the ALJ’s finding that the INA allows the Administrator to investigate H-1B violations that occurred more than twelve months prior to the filing of the compliant that serves as the basis of the investigation.

Investigation of employees not party to the complaint

The Board held that the Administrator can conduct an investigation of all H-1B employees based on a single aggrieved party complaint against the employer. Alena Gay Arat, an H-1B employee of Greater Missouri Medical Pro-Care Providers filed a single aggrieved party complaint alleging that Greater Missouri had (1) failed to pay her the wages required under her LCA, (2) illegally made deductions from her wages, and (3) required her to pay an illegal penalty for ceasing employment prior to the previously agreed upon date.

The Administrator notified Greater Missouri that it was initiating an investigation and would need to review “all public access documentation required by the Federal Regulations, Part 655.760,” including the LCAs for all H-1B employees (Greater Missouri, ARB No. 12-015 at 7). After its investigation, the Administrator found that Greater Missouri had committed numerous violations, not only related to Arat’s complaint but also to over forty other H-1B employees and included additional violations such as (1) failing to maintain documentation as required by the regulations and (2) liability for ongoing violations.

After a hearing before the ALJ, at which the ALJ confirmed the Administrator’s authority to investigate all H-1B employees, Greater Missouri requested a hearing before the Board, arguing that “there is no statutory or regulatory authority for this matter to extend beyond the specific aggrieved complaint here,” and that “the Administrator and ALJ only had the authority to address the specific matters raised by Arat in her complaint” (Greater Missouri, ARB No. 12-015 at 6) (citing D. & O. at 94).

The Board rejected Greater Missouri’s argument and agreed with the ALJ. It based its ruling on the fact that the INA provides LCA investigations to be conducted in a number of ways including (1) receipt of an aggrieved party complaint, (2) receipt of credible information from a source likely to have information under 8 U.S.C.A. § 1182(n)(2)(G)(ii),(iv), (3) reasonable cause, and (4) random investigation of a willful violator of 8 U.S.C.A. § 1182(n)(2)(F).

The Board’s holding effectively states that the receipt of a single aggrieved party complaint equates to “reasonable cause,” allowing for a full-scope H-1B investigation. It stated that the “statutory provisions nowhere restrict the scope of H-1B investigations to allegations contained in a single aggrieved-party complaint. Nor do the Secretary’s implementing regulations dictate the scope of an investigation by the Wage and Hour Division determines that reasonable cause exists to initiate such an investigation” (Greater Missouri, ARB No. 12-015 at 8).

Twelve month statute of limitations on violations

The Board however reversed the ALJ’s holding that the Administrator can investigate alleged INA violations that occurred more than twelve months prior to the filing of the complaint on which the investigation is based. In Greater Missouri, the Administrator investigated H-1B matters well over a year before Arat filed her complaint.

The Board found that the INA strictly limits investigations to a twelve month time frame and therefore LCA violations that occurred more than one year before the complaint was filed are not actionable. It states that “[n]o investigation or hearing shall be conducted on a complaint concerning such a failure or misrepresentation unless the complaint was filed not later than 12 months after the date of the failure or misrepresentation, respectively” (id. at 15 (see8 U.S.C.A. § 1182(n)(2)(A)). The Board also noted that it has upheld the 12-month time frame in case law precedent.

Takeaway points

Greater Missouri indicates that employers should review their H-1B policies and ensure compliance with regulations. It is a harsh reminder to employers that even a single individual complaint could spur an all-encompassing H-1B investigation. However, this case also serves as a reminder to the Administrator that violations are subjected to a twelve-month statute of limitations.

February 19, 2014

Important I-9 Issues Covered in a Meeting with USCIS and ICE

On February 18, 2014, unofficial minutes were published from a November 19, 2013 meeting with USCIS and ICE regarding Form I-9. One of the most important matters discussed in the meeting was the inability of an employee to provide his or her I-94 number on the first day of employment due to technical issues within the CBP’s online I-94 system. USCIS rejected suggestions that would allow for employment without providing the I-94 number (e.g., implementing a procedure comparable to the Receipt Rule used in Section 2). USCIS stated that adopting such suggestions would constitute rulemaking. USCIS instead relied heavily on CBP’s statement that it neither has nor ever had glitches in its system. USCIS emphasized the regulation that if the employee’s I-94 number is required to complete Section 1 and the number is not known, then the employee cannot work for pay as the Form I-9 cannot be completed. This also means that the employer cannot open an E-Verify case for that individual.

A second important issue discussed was whether birth certificates issued by hospitals are acceptable List C documents. The Form I-9 Manual (M-274) reads that only birth certificates issued by government authorities are acceptable. USCIS's I-9 Central guidance on the matter states that USCIS cannot comment on state law or whether a hospital may have the authority to issue birth certificates under that state law. USCIS was asked revise and clarify the guidance to recognize that state laws may have changed in the decades between birth certificate issuance and presentation to complete the Form I-9. USCIS refused this suggestion and in response repeated the I-9 Central guidance language on the issue.

February 14, 2014

Remember That OSC Can Investigate U.S. Employers for Immigration-Related Violations

Recently blogs and the media have focused in the increase of ICE I-9 audits of U.S. employers. Meanwhile, many companies remain unaware that the Justice Department’s Office of Special Counsel (OSC) is another key player in ensuring I-9 compliance. OSC falls within the Justice Department’s Civil Rights Division and investigates discrimination charges alleging immigration-related violations, including the way an employer has managed its I-9 and E-Verify procedures.

Charges can be filed with OSC by federal agencies such as USCIS or the injured party (e.g., employees, former employees, and job applicants) within 180 days of the alleged act of discrimination. OSC has 210 days to investigate. During the final 90-day period, OSC and/or the injured party can file an administrative complaint against the employer. Complaints are then tried before an Administrative Law Judge.

In FY2012, OSC made 192 informal phone “interventions” with employers. Sometimes the phone call was all it took to resolve the charges. Other times, an actual investigation was deemed necessary, which means that OSC conducted a more formal inquiry. This included contacting the employer in writing and requesting a review of certain documents. When the charges had merit, OSC filed an official complaint against the employer.

When charges are found to be valid, employers are subjected to remedial measures. For example, where the complaints are from injured parties such as employees or former employees, employers are often ordered to pay back wages and reinstate workers if the workers agree to be reinstated. Additionally, OSC can impose fines on employers that are found to have violated the law. Violations within OSC’s penalizing discretion include Form I-9 errors, which coincides with ICE’s authority over the same.

Even where charges are found to be without merit, employers may still be required to undergo training and subjected to certain remedial measures such as OSC webinar trainings and/or E-Verify tutorial trainings. This is because a primary goal and purpose of OSC is to better educate employers of the law. As such, OSC has numerous free online trainings for employers. Oftentimes, violations can occur because an employer was unaware of or unclear about what the law actually required.

Employers are encouraged to take efforts to ensure I-9 compliance to avoid ICE and OSC investigations. Best practices include (1) internal and/or third party audits; (2) regular review and revision of I-9 corporate policies; and (3) seeking I-9 specialist legal counsel.

February 10, 2014

What To Do If Your I-94 Reads "Not Found"

If you tried to retrieve your I-94 from the cbp.gov online system at:

https://i94.cbp.dhs.gov/I94/request.html

and you receive a response that your I-94 is "Not Found," please review the following checklist to help you check for mistakes and try to enter the information again:

1. Did you enter your first and last name the same way it appears on your Passport? (Do not use dashes or titles.)
2. Did you enter the correct number as your Passport number? (The number is on the upper right hand side of your Passport.)
3. Did you enter your country of citizenship? (The country that issued the Passport, not where you currently live.)
4. Under Class of Admission, did you enter the Visa classification that appears on your U.S. Visa OR if you are traveling under the Visa Waiver program (VWP) enter WT/WB?
5. If you entered your first and middle name and it's not found, try one name or the other. Also try entering your first and middle name in the first name box.
6. Try entering either your most recent date of entry or your original date of entry into the United States.
If you still cannot find your I-94, please contact your nearest Customs and Border Protection Deferred Inspection Site – CBP.gov -- and a CBP Officer will assist you. When you open the link to the Deferred Inspection Site, you will find an alphabetical list of locations within the United States.

Please Note: Asylees and refugees should have received a handwritten or stamped I-94 upon entering the United States and will not be able to retrieve I-94 information online.

-- USCIS website

February 10, 2014

Boehner Darkens Horizon on Immigration Reform

Just days after releasing the House GOP’s draft of principles for immigration reform, House GOP Speaker John Boehner told reporters on February 6 that its chances of passing anytime soon were in mortal peril. Boehner said he and his members “by and large support” the immigration reform framework he and his leadership team had released. But he added, “I’ve never underestimated the difficulty in moving forward this year” and suggested that because of his own party’s complaints about working with the Obama administration, the issue might prove too much to overcome.

President Obama had praised House Republicans for moving forward on immigration this month and has said he’s willing to accept their demands that legislation be broken into a series of smaller parts. But he also hinted that he might consider further executive action, perhaps even expanding an existing White House order deferring deportations for young undocumented immigrants, if Congress fails to act.

White House Press Secretary Jay Carney told reporters that the president was “optimistic about the prospects for comprehensive immigration reform in 2014” despite Boehner’s latest comments. As for whether Obama might resort to executive action to bypass Congress on the issue, Carney downplayed the idea. “There’s no alternative to comprehensive immigration reform passing through Congress,” he said. “It requires legislation.”

Regardless of Boehner’s long-term plan, his remarks reflect real concerns within his caucus that passing immigration reform in 2014 is a bad idea either on the policy merits or the politics.
-- MSNBC

February 3, 2014

When On-Site Inspections Cross the Line

Should you have an immigration fraud inspector visit your work site for any H-1B or L employee, please ask him or her to wait before you answer any questions until you have contacted your attorney. USCIS site inspectors are asking questions that are inappropriate to the non-immigrant Visa process. It is recommended that you do not answer any questions and contact your attorney instead. We at Cornerstone Law Group would be happy to assist you to ensure proper protocol is followed.

February 3, 2014

GOP Drafts Immigration Reform Principles

House Republicans released a draft of principles on immigration reform as House GOP members gathered for their retreat to discuss their position on a range of issues.
Here is a synopsis of the draft on Immigration Reform:

Reforms to Employment-Based Immigration
The draft emphasizes the importance of employment-based immigration reform. Stating that each year thousands of foreign nationals pursue degrees at U.S. colleges and universities, particularly in high-skilled fields, the draft states that because of current laws, their expertise doesn’t spur economic growth or create jobs for Americans. The GOP’s draft calls for Visa and Green Card allocations that reflect the needs of employers and the need for these individuals to help the U.S. economy.
The draft states that the goal of any temporary worker program should be to address the economic needs of the country and to strengthen national security by creating realistic, enforceable, usable, legal paths for entry into the United States. Of particular concern are the needs of the agricultural industry. It is imperative, the draft states, that these temporary workers are able to meet U.S. economic needs and do not displace or disadvantage U.S. workers.
Employment Verification and Workplace Enforcement
Full implementation of a workable electronic employment verification system.
Border Security and Interior Enforcement
First on the GOP agenda is securing the U.S. borders. In addition, once immigration reform is enacted, the draft emphasizes zero tolerance policy for those who cross the border illegally or overstay their Visas in the future.
Implement Entry-Exit Visa Tracking System
The Republicans want a fully functioning Entry-Exit system, which has been mandated by eight separate statutes over the past 17 years. At least three of these laws call for this system to be biometric, using technology to verify identity and prevent fraud. The Republicans want to implement this system to identify and track down visitors who abuse U.S. laws.
Youth
The draft outlines provisions for legal residence and citizenship for those who were brought to the United States as children once they meet certain eligibility standards, serve honorably in the U.S. military or attain a college degree.
Individuals Living Outside the Rule of Law
The draft outlines a national and economic security policy that will require people living and working in the U.S. illegally to come forward – offering them the opportunity to live in the U.S. if they are willing “to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits).” Criminal aliens, gang members, sex offenders, and those who do not meet the above requirements will not be eligible for this program.

January 27, 2014

SERIES: Lessons Learned from OCAHO’s 2013 Decisions—U.S. v. Occupational Resource Management, Inc.

In U.S. v. Occupational Resource Management, Inc., OCAHO addresses key issues in the adjudication of I-9 violations allegations, 10 OCAHO no. 1166 (2013). We discuss below two of these important matters and how they emphasize the importance of employers’ use of E-Verify.

1) Constructive knowledge

Federal regulations prohibit hiring a foreign national worker knowing that he or she is unauthorized to work in the United States. Regulations define “knowing” as including both actual and constructive knowledge. However, OCAHO admits in Occupational Resource Management (ORM), that its “case law respecting constructive knowledge has not been fully developed.” On one hand, OCAHO case law does show that an employer cannot cultivate “conscious disregard” or “deliberate ignorance” with regards to employees’ employment eligibility. Generally, when an employer receives specific information that casts doubt on an employee’s work authorization and continues to employ the individual without taking adequate steps to reverify his or her employment eligibility, OCAHO may find the employer had constructive knowledge.

On the other hand, ORM acknowledges that courts have warned that the doctrine of constructive knowledge must be “sparingly applied” in order to preserve Congressional intent. In the regulations, employers are only required to ensure that work authorization documents presented appear to be valid on their face; and if so, the employer is not obligated to investigate further.

Ultimately, it appears that an employer must accept documents that appear to be valid on its face and has no obligation to investigate further. However, an employer does have the obligation to properly review those documents as well as Section 1 (which is filled out and signed by the employee) to ensure that the information provided makes sense to a reasonable person. For example, in ORM, the employer ignored the fact that an employee entered in Section 1 information from an expired work authorization document. OCAHO determined that when “an employer is put on notice of circumstances that would cause a reasonable person to make timely and specific inquiry [e.g., information from an expired document in Section 1] but fails to take any steps to investigate or inquire further, that employer acts in reckless disregard of the facts and consequences. The employer is chargeable with such knowledge as reasonable inquiry would have revealed.”

We at Cornerstone recommend that all employers contact their legal counsel to help determine whether to enroll in E-Verify. Use of E-Verify can avoid this constructive knowledge quagmire. Upon completing the Form I-9, the E-Verified employer then submits the information from the employee’s work authorization documents for verification with federal databases. Instituting this practice in an employer’s I-9 procedure sidesteps the constructive knowledge issue because E-Verify will automatically provide actual knowledge of each employee’s employment eligibility and specific instructions on how to proceed if the finding is negative.

2) Government’s burden

ORM clarifies that the government’s burden on a count for unauthorized employment is preponderance of the evidence. This means that ICE does not have to present “conclusive evidence” of the unauthorized status of an employee in question. OCAHO states that when “the government makes a prima facie case showing that a document is false based on a computer search of its records system, and the employer fails to provide any evidence to the contrary, substantial evidence supports a finding of a lack of authorization.”

Again, use of E-Verify can help any employer avoid this situation because E-Verify checks the validity of the documents against the same government systems.

(This post is part of a larger series on 2013 OCAHO decisions. Please also see the previous post on U.S. v. Super 8.)

January 24, 2014

500,000 Employers Now Use E-Verify

E-Verify is a predominantly voluntary online service for U.S. employers to confirm new employees’ eligibility to work. More than 500,000 companies are now enrolled, according to a USCIS Press Release on January 23, 2014. This is a large milestone for the service, which was established in 1996.

“Since it was established, E-Verify has experienced exponential growth, increased accuracy and high customer-satisfaction ratings,” said Lori Scialabba, Acting Director of USCIS. “Participation in E-Verify is largely voluntary, so the fact that half a million companies have signed up demonstrates significant confidence in the program. Employers using E-Verify find it helps them maintain a legal workforce in a quick, secure and accurate way.”

USCIS boasts that 98.8% of work-authorized employees are confirmed instantly or within 24 hours, requiring no further action from the employer or employee.

Users gave E-Verify a score of 86 out of 100 on the 2012 American Customer Satisfaction Index (ACSI) survey. This is significantly higher than the average score for all government agencies, which was 67.

USCIS works hard to gain and maintain customer satisfaction. It has made agreements with select State DMVs to verify the authenticity of driver’s licenses used as identity documents. It introduced Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment. Recently, it established a program that combats identity fraud by locking Social Security numbers suspected of being misused for employment eligibility verification. USCIS also redesigned its website to make it more user-friendly by adding more plain language content and easy-to-follow graphics.

Talk of making E-Verify mandatory has been circulating for a while and has even surfaced in Immigration Reform bills. If enrolling in E-Verify does in fact become mandatory, unenrolled U.S. employers will have several years (depending on the size of the company) to enroll after publication of the mandating law.

Use of E-Verify is becoming more strongly encouraged in the employment and immigration realms. Not only does it verify work authorization documents against federal databases, as intended, but it also shows clear intent to be compliant with federal employment eligibility regulations.