Global Immigration Blog

Neufeld "Employer-Employee Relationship" Memorandum Upheld

Harry J. Joe — Thu, 26 Aug 2010 13:40:18 -0800

In a blow to employers, a federal district court has upheld a USCIS memorandum that set out factors to determine whether an employer-employee relationship existed for H-1B nonimmigrant visa petition adjudication purposes.

The case was brought by an IT staffing firm that, along with other IT staffing firms and trade associations, challenged the validity of the USCIS’s January 8, 2010, Memorandum for “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (HQ 70/6.2.8 AD 10-24) (“Neufeld Memo”). The case was dismissed, with prejudice, by the federal district court for the District of Columbia on August 13, 2010. Broadgate Inc. v. U.S. Citizenship and Immigration Services, No. 1:10-cv- 00941-GK, (D. D.C.). The Neufeld Memo set out 11 factors and hypothetical examples for when an employer-employee relationship did and did not exist for H-1B nonimmigrant visa petition adjudication purposes. The plaintiff argued that the Neufeld Memo failed to comply with the Notice of Proposed Rule Making requirements of the Administrative Procedures Act and, therefore, was invalid. Additionally, they argued the memorandum set out new substantive rules that were binding upon USCIS service center adjudicators. Siding with the USCIS, the Court found the Neufeld Memo to be valid as it is “interpretive” in nature and was intended to be used by adjudicators in the application of the five tests set forth in the regulation for determining whether the requisite employer-employee relationship had been satisfied by the petitioner.

It is no secret that with the current recession and corresponding high unemployment rate, there is intense government scrutiny of immigration-related filings by U.S. employers seeking to secure employment work visas for foreign workers. Statutory and regulatory requirements are now being applied strictly, as evidenced by the Neufeld Memo.

What is most troublesome with the Broadgate decision is that the door is now open for the USCIS to create potentially unlawful “interpretive” memorandums for the adjudication of such filings, leaving the employer with the ability to challenge their unlawfulness only when the filing has been erroneously denied. It is not uncommon for 24 or more months to elapse from the time of denial of an application by the Service Center and affirmation by the Administrative Appeals Office before the Petitioner can challenge the legality of the standard in federal district court. In agreeing with the government’s “interpretation defense,” the Court created a Trojan horse for the USCIS and other federal agencies, such as the Office of Foreign Labor Certification at USDOL, to render erroneous decisions that deny immigration benefits to those legally entitled to them.

Major filing fee increases for employers who use substantial H-1B and L-1 visas

Bryant L. Stevenson — Sun, 22 Aug 2010 07:56:22 -0800

Implementing a portion of the Border Security funding bill (Public Law 111-230) signed by President Barack Obama on August 13, USCIS has announced a new fee, in addition to existing fees, for certain H-1B and L-1 petitions. The new fee is $2,000 for certain H-1B and $2,250 for certain L-1 petitions.

The fee applies to petitioners who employ more than 50 workers in the U.S., with more than 50% of them in H-1B or L-1 status. The fee must be paid when an employer seeks an initial grant of H-1B or L-1 status, and when an existing H-1B or L-1 worker is seeking a change of employer.

USCIS notes that Form I-129, and accompanying instructions, will be modified to comply with the new law. In the interim, employers should address the fee requirement with a notation on their H-1B or L-1 applications.

See the USCIS announcement here:
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD

DHS Broadens Definition of Foreign Officials' Dependents

Pamela J. Mak — Thu, 19 Aug 2010 08:50:24 -0800

On August 9, 2010, the U.S. Department of Homeland Security (DHS) amended its regulatory definition of “dependents” for A or G principal aliens to include, in addition to spouses and unmarried sons and daughters, those who are not related to the principal alien by blood, marriage or adoption.
Previously, DHS regulations allowed only the following dependents habitually residing with the A or G principal to apply for employment authorization:

• Spouse;
• Unmarried children under the age of 21;
• Unmarried sons or daughters under the age of 23 who are full-time post-secondary school students;
• Unmarried sons and daughters under the age of 25 who are full-time secondary school students if a formal bilateral agreement permitting their employment in the U.S. was signed prior to November 21, 1988, and if such bilateral agreement does not specify 23 as the maximum age for employment of such sons and daughters; and
• Unmarried sons or daughters who are physically or mentally disabled to the extent that they cannot adequately care for themselves or cannot establish, maintain or re-establish their own households.

The recent DHS change was meant to correspond to last year’s regulatory expansion of the definition of “immediate family” by the U.S. Department of State (DOS) which include those who:

• Are not members of some other household;
• Will reside regularly in the household of the principal alien;
• Are recognized as immediate family members of the principal alien by the sending Government as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
• Are individually authorized by the Department of State.

The regulations controlling the employment of aliens has also been amended to allow these dependents to now file an I-765 Application for Employment Authorization Document (EAD Card) pursuant to 8 CFR 274a.12(c)(1) and (4). Specifically, the amendments replace references to the “spouses” and “children” of A and G principal aliens with “dependent.”

Federal Judge Hears Challenges to Arizona Immigration Law

Jeffrey W Toppel — Mon, 26 Jul 2010 16:05:51 -0800

On July 22, Judge Susan Bolton of the U.S. District Court in Phoenix heard arguments in two of the most highly publicized challenges to Arizona Senate Bill 1070: (1) the lawsuit filed by a coalition of civil rights groups and labor unions; and (2) the lawsuit filed by the U.S. Department of Justice (“DOJ”). The plaintiffs in both seek to enjoin SB 1070 from taking effect on July 29, 2010.

Judge Bolton does not intend to enjoin SB 1070 in its entirety. Stating that she considers SB 1070 to be an “enactment,” combining new laws and amending existing laws, rather than a “statute,” Bolton indicated she was considering whether to block all or parts of certain key provisions of SB 1070 and steered attorneys toward the more questionable portions of those provisions.

Judge Bolton voiced concerns regarding portions of SB 1070, including a provision that allows law enforcement officers to make warrantless arrests of people suspected of committing offenses that make them “removable from the United States.” At the hearing, Judge Bolton asked: “How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?”

Attorneys for the DOJ argued that the provisions of SB 1070 are pre-empted by federal law. The agency’s lawsuit alleges that SB 1070 “will conflict and undermine the federal government’s care balance of immigration-enforcement priorities and objectives.”

Judge Bolton did not make any rulings at the hearings and has not said when she will issue a ruling. With the statute set to take effect in days, it is anticipated that she will rule quickly. Jackson Lewis will continue to monitor the legal developments surrounding SB 1070.

Department of Homeland Security Issues long awaited final Electronic I-9 rules

Sean G. Hanagan — Mon, 26 Jul 2010 09:57:38 -0800

In April 2005 when Public Law 108-390 went into effect allowing for employers to sign and retain I-9 employment eligibility verification forms electronically, employers and immigration practitioners alike may have been justifiably confused as provisional guidance from the Department of Homeland Security’s ICE (Immigration Customs and Enforcement) division on their web page http://www.ice.gov/pi/news/factsheets/i-9employment.htm was introduced. ICE guided employers to “interpret the law”(!), and advised employers to “note that there is no single government-wide electronic signature or record-keeping standard. However, some federal agencies have provided electronic record-keeping standards for their own transactions with the public…[which] may serve as a helpful reference for employers until DHS issues regulations to govern the storage of Forms I-9.” For over a year, employers and their counsel had to guess about what standards would comply with the law and fit within the enforcement agency’s vague guidance. Despite tangible benefits in terms of paperwork reduction, many employers opted to wait for something more concrete before investing in an electronic I-9 program and institutional training.

In June 2006, ICE issued an interim rule which provisionally codified standards that employers wishing to use electronic I-9 completion and storage systems should observe. Building on their initial guidance, most of the standards outlined in the provisional rule reflected IRS electronic recordkeeping guidelines, and covered criteria such as accessibility, accuracy, security, and quality of data being captured and systems being used for electronic storage. http://edocket.access.gpo.gov/2006/E6-9283.htm.

Some four years later, an advance copy of final rules modifying 8 CFR 274a.2 has been issued (http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr22jul10.pdf), so presumably interested parties have had sufficient time to comment on the interim rules prior to finalization, unlike some notorious instances of agency “legislation by decree” in which policy “clarifications” were later deemed to have unlawfully omitted the normal public comment period. http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1579.

The final version of the rule contains standards which will be familiar to employers who currently use electronic I-9 systems and the vendors who market such systems. As before, the final rule “permits employers to complete, sign, scan, and store the Form I-9 electronically, as long as certain performance standards… are met.” Changes in the final rule are relatively minor, amounting in most instances to clarifications:
-employers must complete a Form I-9 within three business (not calendar) days;
-employers may use paper, electronic systems, or a combination of paper and electronic systems;
-employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
-employers need not retain audit trails of each time a Form I-9 is electronically viewed, but only when the Form I-9 is created, completed, updated, modified, altered, or corrected; and
-employers may provide or transmit a confirmation of a Form I-9 transaction, but are not required to do so unless the employee requests a copy.

This rule does not include any changes to I-9 form content or acceptable documents, but an acceptable document change did occur in 2008 (73 FR 76505) and 2009 (72 FR 2838 - correction). Therefore, while there was nothing dramatic or surprising in the final rule, employers can now rest assured that electronic I-9 completion and storage standards appear to be final.

Employers Feeling Heat from ICE

Harry J. Joe — Fri, 23 Jul 2010 14:55:43 -0800

The scorching Texas summer is not the only heat Texas employers are feeling these days. According to a recent article in the Houston Chronicle, the United States Immigration and Customs Enforcement (ICE) has hit 23 Texas companies with civil fines exceeding $600,000 for hiring unauthorized workers, failing to comply with regulatory employment verification requirements, or both. Some of these employers are also facing criminal prosecutions.

It is no secret that the current administration has placed heavy emphasis on enforcing workplace laws and numerous employers have felt the brunt of it. Enforcing immigration laws that prohibit employers from hiring unauthorized workers and that require all employers to verify each new hire for work authorization and completion of the I-9 Employment Eligibility Verification Form is a part of the overall scheme. And, since there are budget deficits that must be made up, hefty fines for violations help.

Under this enforcement regime, employers are cast as the villains of the piece and the cause for the massive influx of illegal workers into this country. Rather than deporting apprehended illegal workers, the government now allows many to remain in the United States, where they are given employment authorization in return for their assistance in the investigation and prosecution of employers.

DOJ Challenges Arizona's Controversial Immigration Law

Bryant L. Stevenson — Thu, 08 Jul 2010 14:49:25 -0800

The U.S. Department of Justice has filed a challenge to the state of Arizona’s recently passed immigration law, S.B. 1070, in federal court.

The Arizona law, called the Support Our Law Enforcement and Safe Neighborhoods Act and scheduled to take effect on July 29, is already the target of at least five other lawsuits filed by civil rights and other groups.

In its suit, filed July 7, the DOJ charges that the Arizona law conflicts with federal law, would disrupt federal immigration enforcement, and would lead to local police harassment of those who cannot prove lawful status. DOJ officials expect a hearing within the next two weeks on their motion for a preliminary injunction blocking the law from going into effect.

The DOJ cites the legal doctrine of "preemption" in its complaint. Preemption is based on the U.S. Constitution's supremacy clause and provides that federal law trumps state statutes. The DOJ argues that because the federal government has "preeminent authority to regulate immigration matters," the Arizona law must be struck down. Additionally, on the more practical side, the DOJ argues that the Arizona law would unduly burden federal agencies charged with immigration enforcement. Enforcement of the Arizona law would result in Arizona referring so many illegal immigrants for deportation, the lawsuit argues, that federal officials would lose focus on top priority targets, such as immigrants involved in terrorism or other crimes. The suit also claims that the Arizona law would overburden local law enforcement officials.

Although the lawsuit mentions potential "detention and harassment" of U.S. citizens and immigrants who do not carry identification documents, it does not argue that the law would lead to racial profiling.

An official press release, along with copies of the complaint and supporting documents, can be found at the Department of Justice website: http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.

Comprehensive Immigration Reform Revival?

David S. Jones — Thu, 01 Jul 2010 02:35:35 -0800

Comprehensive Immigration Reform (CIR) once more may have had new life breathed into it. President Barack Obama on July 1 called on Congress to act on CIR and fix our “broken” immigration system. As a part of this reform, he said that employers who take advantage of the underground labor market should continued to be punish, the estimated 11,000,000 undocumented aliens currently in the U.S. should be allowed a “path” to legal residency, and the delays hindering those pursuing legal immigration should be fixed. The president questioned Congress’ ability to pass such legislation, but indicated that action on CIR was urgent.

CIR has been pronounced dead more times than anyone can remember. Some see legislative priorities like healthcare reform, banking reform, the housing market, job loss and the economy as dominating the legislative agenda in the foreseeable future and CIR’s chances seem a long shot. Even in the wake of Arizona’s controversial immigration law, which many thought would force some sort federal action, reform seemed a long way off. Perhaps now with the Administration’s clear support, we will see progress in CIR.

We will continue to stay on top of developments as they arise.

Working with ICE: Is it worth the IMAGE?

Davis C. Bae — Mon, 24 May 2010 06:00:00 -0800

The U.S. Immigration and Customs Enforcement (ICE) agency is stepping up its program to promote IMAGE (ICE Mutual Agreement between Government and Employers). IMAGE is a voluntary program under which ICE will “partner with companies representing a broad cross section of industries in order that these firms may serve as charter members of IMAGE and liaisons to the larger business community.”

IMAGE subjects a participating employer to standards far higher than normally required by the law that can pose unintended consequences for employers. Improper and inconsistent application of the complicated IMAGE employment-verification system could expose employers to claims of discrimination. Further, while adopting the “best practices” requirements through IMAGE is meant to enhance legal compliance, the additional requirements on participating employers could lead to a heightened risk of technical errors.

The initial steps for IMAGE require a participating employer to:

1) Complete a self-assessment questionnaire
2) Enroll in E-Verify
3) Enroll in the Social Security Number Verification Service (SSNVS)
4) Undergo a Form I-9 audit by ICE
5) Review and sign an official IMAGE partnership agreement with ICE

In addition, employers must take steps to comply with ICE’s “best practices,” which include:

1) Establishing a written hiring- and employment-eligibility verification policy
2) Establishing an internal compliance and training program that includes I-9 training, fraud detection and use of SSNVS and E-Verify
3) Restricting the conducting of I-9 and E-Verify processes to individuals who have received training
4) Arranging for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 and E-Verify processes
5) Establishing a self-reporting procedure to report to ICE violations or discovered deficiencies
6) Establishing a procedure to report to ICE credible information of suspected criminal misconduct in the I-9 process
7) Establishing a program to assess subcontractors’ compliance with employment-eligibility verification requirements, encourage contractors to incorporate IMAGE Best Practices, and, when practicable, incorporate the verification requirements in subcontractor agreements
8) Establishing a tip line mechanism (inbox, e-mail, etc.) for employees to report activity relating to the employment of unauthorized workers and a protocol for responding to employee tips

According to ICE, the benefit to employers is credibility and access to training, including on the latest illegal schemes used to circumvent legal hiring processes. Furthermore, ICE will review the hiring and employment practices of IMAGE partners and “work collaboratively with them to correct isolated, minor compliance issues that are detected.”

While ICE claims that “Image Certified” will become the industry standard as it relates to unauthorized employment verification, since its inception nearly four years ago, adoption of the program by employers remains low (see attached is the list of “IMAGE Certified" Companies). Most companies reject IMAGE because of the many additional burdens it creates, many of which may result in additional costs and unnecessarily high standards.

Is it worthwhile for a company to become IMAGE Certified? Employers must weigh the risks and costs of the compliance obligations against the two primary benefits: (1) the value of the “IMAGE Certified” credential and (2) additional access to training and information. Employers should carefully review the new IMAGE initiative before deciding to participate.

Another Lawsuit Filed Challenging Arizona's Senate Bill 1070

Jeffrey W Toppel — Thu, 20 May 2010 12:00:40 -0800

The list of lawsuits challenging Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070) continues to grow. On May 17, 2010, 14 civil and immigrant-rights groups, along with 10 individuals, filed a lawsuit in U.S. District Court challenging the constitutionality of Senate Bill 1070. At least five separate lawsuits have been filed seeking to prevent the Bill from becoming effective on July 29, 2010. Unlike the others, the most recent lawsuit names Arizona’s county officials as defendants rather than Governor Jan Brewer.

The lawsuit alleges Senate Bill 1070 is unconstitutional on a number of grounds, including:

• The Bill violates the federal Supremacy Clause by attempting to bypass federal immigration law.

• The Bill deprives racial and national origin minorities of their 14th Amendment right to equal protection under the law by subjecting them to stops, detentions, questioning and arrests based on their race or national origin.

• The Bill infringes on the constitutional right to travel without being stopped, interrogated and detained.

• The Bill violates the First Amendment right to freedom of speech because it exposes speakers to scrutiny based on, among other things, an individual’s language or accent.

Several unions, including the UFCW and the SEIU, have signed up as plaintiffs for the most recent lawsuit. Labor unions have been extremely vocal in opposition to Senate Bill 1070 and have been active in calling for boycotts of Arizona businesses. These unions appear to be using opposition to the Bill as a tool to increase their organizing efforts in Arizona.

Jackson Lewis will continue to monitor the various legal challenges to the Senate Bill 1070 and will provide timely updates.

Sheriff Joe Arpaio Rides Again

Jeffrey W Toppel — Wed, 19 May 2010 16:57:00 -0800

While Arizona’s controversial new immigration law, Senate Bill 1070, continues to garner national attention in the months leading up to its July 29 effective date, employers in Arizona must not forget their obligations under the already effective Legal Arizona Workers Act (“LAWA”). LAWA imposes severe penalties on employers who either “knowingly” or “intentionally” hire unauthorized workers.

On May 6, 2010, Maricopa County Sheriff Joe Arpaio raided a Phoenix business, arresting 24 employees suspected of being illegal aliens. Sheriff Arpaio conducted the raid after receiving a tip through his immigration hotline that employees at the business were engaging in identity theft. The recent raid was Sheriff Arpaio’s 32nd workplace raid in the period since LAWA took effect in January 2008.

Until recently, the Sheriff’s raids have focused primarily on the arrests of unauthorized workers and have not resulted in the prosecution of the businesses that employed them. However, that appears to be changing. The Maricopa County Attorney’s Office has initiated at least two cases against employers under LAWA. There are also indications that Arizona’s County Attorneys are gearing up for increased enforcement of LAWA. Senate Bill 1070 adds an “entrapment” defense to LAWA, which suggests that law enforcement will be engaging in more creative investigation techniques in the future. Moreover, the Maricopa County Attorney sought increased subpoena power under LAWA, but this initiative was successfully opposed by business groups and did not make it into the final version of Senate Bill 1070.

Finally, the lawsuit filed by the U.S. Chamber of Commerce and other business groups challenging LAWA has made its way to the U.S. Supreme Court. The U.S. Supreme Court has invited the Solicitor General to file a brief on behalf of the U.S. government. With the recent nomination of Solicitor General Elena Kagan to the Supreme Court, it is not clear when the case will move forward.

Jackson Lewis will continue to follow developments under LAWA.

DOL's New Online H-1B Advisor

Minnie Fu — Wed, 19 May 2010 11:10:52 -0800

The Department of Labor has released a new online tool to help employers and employees understand how to comply with the H-1B visa program. This is part of the agency’s new compliance initiatives.

As background, the H-1B non-immigrant visa classification was created under the Immigration and Nationality Act to help U.S. employers who cannot obtain workers with needed skills from the U.S. workforce by authorizing the employment of qualified foreign workers under the H-1B visa program. The program establishes certain standards to protect similarly employed U.S. workers from being adversely affected by the employment of foreign H-1B workers, as well as to protect H-1B workers themselves. See http://www.dol.gov/whd/immigration/h1b.htm.

DOL’s new online H-1B Advisor addresses solely the Labor Condition Application requirements enforced by the agency’s Wage and Hour Division. This helps employers to determine whether they have complied with the H-1B Wage and Hour requirements and provides all employees and any interested individual detailed information and instructions with regard to filing a complaint against a U.S. employer believed not in compliance with the regulations.

The interactive, online H-1B Advisor describes the program's standards and provides detailed information concerning H-1B employers' and workers' rights and responsibilities. Users can determine if they fulfill the requirements of the visa program by answering questions relevant to specific H-1B classified workers. The H-1B Advisor also outlines the obligations imposed on H-1B employers, including notification requirements, monetary issues (obligation to pay, required wage rates, permissible deductions, benching, credits, termination, early termination penalty/liquidated damages issues), worksite issues, recordkeeping, and worker protections (whistleblower protection and displacement of U.S. workers), enforcement (filing a complaint against an employer, defenses, remedies and appeals process) and other requirements for employers deemed to be H-1B dependent or willful violators.

The H-1B Advisor provides excellent resources to employers and employees in understanding the H-1B employers’ obligations and the workers’ (H-1B or U.S. workers) rights. Of course, given the readily available resources, employers must be vigilant in maintaining consistent and coherent corporate visa-sponsorship policies and procedures to ensure their immigration compliance efforts.

The "Green Card" Is Green Again

Bryant L. Stevenson — Fri, 14 May 2010 14:44:18 -0800

During the I-9 verification process, foreign-born employees often present a variety of Permanent Resident cards, commonly called “Green Cards.” However, for the last few decades, no version of the Permanent Resident card has been the color green.

USCIS announced on May 11 a new version of the Permanent Resident card will be issued. The card will include new, enhanced security features. (See USCIS Press Release, USCIS Q&A.) New, personalized elements of the card will make it more difficult to forge, and each card will contain a Radio Frequency Identification chip. Furthermore, the front of the card contains green-colored features, once again making the “Green Card” green!

The image below, provided by DHS, illustrates the security features on the new Permanent Resident card.

If you have any questions regarding the new Permanent Resident document, document verification, or the I-9 process in general, please let us know.

More Challenges to Arizona Immigration Statute Announced

Jeffrey W Toppel — Thu, 13 May 2010 06:00:00 -0800

The city councils of two major Arizona cities – Tucson and Flagstaff – have announced their intentions to file lawsuits to challenge the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Flagstaff City Council voted unanimously in favor of a resolution authorizing the lawsuit. The Council described the move as an unfunded mandate for the City to carry out the responsibilities of the federal government. The cost to enforce the new immigration law will be overly excessive said Council members in Tucson as they authorized a lawsuit.

Meanwhile, City of Phoenix Mayor Phil Gordon, one of the most vocal opponents of the statute, said he will join with other Arizona mayors in filing a lawsuit seeking to invalidate the statute. Mayor Gordon had been pushing the Phoenix City Council to authorize a lawsuit on the City’s behalf, but was not able to gather sufficient support.

Additionally, both U.S. Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano continue speak critically of the Arizona statute. Testifying before the Senate Judiciary Committee, Secretary Napolitano stated she fears Senate Bill 1070 will force U.S. Immigration and Customs Enforcement (ICE) to use its already stretched resources to deal with those arrested under Arizona’s new law and will siphon federal money and staff away from hunting down dangerous immigrants. Moreover, Attorney General Holder has said that the Department of Justice is reviewing the statute and will consider all of its options, including “the possibility of a court challenge.”

Stay tuned as Jackson Lewis continue to follow the growing number of legal challenges to Arizona Senate Bill 1070.

Opposition to Arizona Immigration Law: It's About Pro-Diversity

Robert C. Seiger — Wed, 12 May 2010 10:37:51 -0800

While the business community has largely attempted to stay out of the debate surrounding Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), professional basketball team Phoenix Suns jumps to the center of the debate over the Bill with the team’s decision to wear “Los Suns” jerseys during its playoff game against the San Antonio Spurs on Cinco de Mayo. Suns’ owner, Robert Sarver, announced his disagreement with the Bill, describing it as “mean-spirited.” All of the Sun’s players were reportedly in favor of the decision to wear the jerseys.

Sarver was quoted as saying, “I thought we need to go on record that we honor our diversity in our team, in the NBA, and we need to show support for that. As for the political part of that, that's my statement." The Suns currently have three foreign-born players on the team.

Groups opposing the Bill have looked to sports teams and leagues to influence the discussion. Some have called on Major League Baseball to move its 2011 All-Star game from Phoenix – just as the Super Bowl was moved 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday. Recent efforts have prompted Arizona Governor Jan Brewer to write ESPN on responding to the sports boycott requests, which she labeled as “misguided.”

Sports in America have become increasingly international, with players coming from around the globe. In fact, it is international players that dominate the roster of some of our major professional sports teams. The National Hockey League, for example, is made up of 80 percent of players who were born and raised outside of the United States. On the University level, a significant number of our colleges and universities actively seek international talent to gain a competitive edge. While these players may initially come to the United States either as a student-athlete or on a P-visa (a visa designated by immigration as a visa for professional athletes), these same athletes often seek permanent residence or citizenship to remain in the United States at the conclusion of their careers. As a result, we may see professional athletes and their teams play a significant role in shaping the immigration debate.

Changes Already Made to Arizona Immigration Statute

Jeffrey W Toppel — Wed, 12 May 2010 10:28:26 -0800

The Arizona legislature has already made several changes to its recently enacted immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). On the legislature’s last day in session, it passed changes to the law, which the Bill’s sponsor, Senator Russell Pearce, stated were intended to clarify that “the bill prohibits racial profiling in any form.”

Opponents of the Bill had expressed concerns about how crime victims or witnesses would be treated in light of the Bill’s requirement that law enforcement question individuals concerning their immigration status during any “lawful contact.” In an attempt to address this issue, the legislature amended the statute to require questioning only where there is a “lawful stop, detention or arrest.” Moreover, the legislature eliminated the word “solely” from the provision in the Bill, stating that law enforcement officials may not “consider race, color or national origin…” in establishing reasonable suspicion that someone is in the country illegally. Finally, the Bill was also amended to clarify that law enforcement officials responding to city-ordinance violations would be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally.

Governor Brewer signed these changes into law on April 30, stating that she believed the new language, combined with the original wording of the Bill, gives the law "maximum ability to withstand legal scrutiny." These changes will become effective with the rest of the Bill on July 29, 2010.

The changes, however, have done nothing to stop the furor over the Bill’s enactment. The calls for boycotts of Arizona and its businesses have continued to increase in the week since the Governor signed the Bill and will undoubtedly have an impact on Arizona employers.

We will continue to follow these breaking developments.

Wild Week for Arizona's New Immigration Statute

Jeffrey W Toppel — Mon, 10 May 2010 15:30:20 -0800

The fervor surrounding Arizona’s new immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), has grown in the days since Governor Jan Brewer signed the Bill into law on April 23, 2010. The Arizona legislature adjourned on April 29, 2010, which means the Act will become effective 90 days later, July 28. The whirlwind of activity will likely increase in the period before the statute is scheduled to take effect.

On April 29, 2010, three separate lawsuits were filed challenging Senate Bill 1070. The first was filed by the National Coalition of Latino Clergy and Christian Leaders in U.S. District Court for the District of Arizona, alleging that the Act “creates state-wide immigration regulations [that are] independent from the existing federal system and clearly conflict[] with federal immigration law.” In addition, a well known Arizona civil rights lawyer filed two separate lawsuits in federal court (one on behalf of a police officer in Tucson and the other on behalf of a police officer in Phoenix) alleging, among other things, that the Act violates the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Leaders of three prominent civil rights groups announced they are planning to file a lawsuit to challenge the Act.

Meanwhile, calls for boycotts of Arizona businesses have spread and even gained momentum. Further, officials in San Francisco and Los Angeles have proposed that their cities not do business with companies in Arizona. Elected officials in other places, including St. Paul, Minnesota, have called for a boycott. Several groups have reportedly cancelled conventions planned for Arizona in opposition to the Act.

We will post updates as warranted.

Arizona Governor Signs Controversial Immigration Bill into Law

Jeffrey W Toppel — Thu, 06 May 2010 08:09:45 -0800

Less than two years after the enactment of the Legal Arizona Workers Act (“LAWA”), Arizona Governor Jan Brewer has signed into law the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The Governor’s decision has thrust Arizona into the spotlight of immigration reform debate.

The controversial statute has attracted both national and international attention since the April 23 signing and has led to daily protests at the Arizona State Capitol in downtown Phoenix, as well as throughout the country. Several public figures have spoken out in opposition to the statute and there have been widespread calls to boycott Arizona businesses. Despite this, Arizona polls show widespread support for the bill among Arizona residents.

While opposition to the bill has focused largely on the new requirement imposed on law enforcement officials, Senate Bill 1070 has two provisions that will impact Arizona employers. The statute includes a provision prohibiting the hiring of day laborers. This same provision makes it a crime for unlawful aliens to “apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Senate Bill 1070 also adds a recordkeeping provision to LAWA that requires employers to maintain E-Verify verifications for each employee hired after January 1, 2008 for the duration of the employment or at least three years, whichever is longer. In addition, it adds a defense of entrapment for employers facing a claim that they either intentionally or knowingly hired an unauthorized alien.

Jackson Lewis will be closely monitoring developments relating to Senate Bill 1070 and the impact it will have on employers in Arizona and will be providing regular updates.

FY 2011 H-1B Petitions Received in First Week: 13,500FY 2011

Bryant L. Stevenson — Mon, 26 Apr 2010 07:01:11 -0800

On April 9, 2010, USCIS announced that in the first week of accepting cap-subject H-1B filings for FY 2011, only 13,500 petitions had been received against the 65,000 regular cap and only 5,600 against the 20,000 master’s cap.

New H-1B visas are generally limited to 65,000 per fiscal year, with an extra 20,000 available to certain individuals with advanced degrees (the master’s cap). The fiscal year begins on October 1, and petitions are accepted beginning April 1.

The first week’s filings represent the fewest H-1B petitions initially filed in several years. In previous years, USCIS had received a substantially greater number of petitions on April 1 than H-1Bs available. Such a situation required lotteries to determine which petitions would be accepted for adjudication. The last lottery was held in 2008, when USCIS received over 160,000 initial H-1B petitions.

No lottery was held last year, where after the first week of filing, USCIS had received over 30,000 regular cap petitions and close to 20,000 master’s cap petitions. USCIS continued to accept applications for new H-1Bs until the limit was reached on December 21, 2009.

It appears that employers now have some flexibility in bringing on new H-1B workers for a start date of October 1, 2010 or later.

Department of Labor to Increase Enforcement Actions

Minnie Fu — Thu, 08 Apr 2010 06:00:00 -0800

On April 1, 2010, Secretary of Labor Hilda L. Solis announced DOL’s “We Can Help” campaign in Chicago, where she told an audience of union leaders and community members that the DOL “will not allow anyone to be denied his or her rightful pay — especially when so many in our nation are working long, hard and often dangerous hours."

The nationwide "We Can Help" campaign, spearheaded by DOL’s Wage and Hour Division (WHD), is an outreach program directed at the nation’s low-wage and “vulnerable” workers, such as workers in construction, janitorial services, hotels, food services and home health care services industries. The program also addresses topics such as rights in the workplace and how to file a complaint with the WHD to recover wages owed. Additionally, the campaign underscores the awareness that wage and hour laws apply to all workers in the U.S. regardless of their immigration status. In conjunction with this enforcement program, DOL has added more than 250 field investigators nationwide to help in this campaign.

Additionally, the inter-governmental agencies’ concerted enforcement efforts should not be overlooked. An immigration worksite visit could potentially involve a concurrent or subsequent DOL WHD audit and vice versa. In DOL’s efforts to protect the “vulnerable” workers in the U.S., it is yet to be seen if DOL will follow the Immigration and Customs Enforcement (ICE)’s lead in potentially offering incentives to undocumented workers in order to gain cooperation from them to detect and determine an employer’s liabilities.