Global Immigration Blog

Immigrant Visa Numbers for China and India Employment-Based Second Preference Unavailable

David S. Jones — Fri, 11 May 2012 11:30:07 -0800

In November of last year, the cut-off dates for China and India Employment-based Second Preference Category (EB2) were at November 1, 2007. This meant that Chinese and Indian national with priority dates of November 1, 2007, or earlier are eligible to file their I-485, Application for Adjustment of Status. Unexpectedly, over the course of a few months, the dates shot up to May 1, 2010. This rapid acceleration led to a significant increase in visa usage and the Department of State retrogressed the cut-off dates all the way back to August 15, 2007. Despite this adjustment, the demand for visa numbers by applicants did not decrease sufficiently. Thus, the Department of State has made the China and India EB2 category completely “unavailable.” Absent any recalculations, visa numbers will continue to be unavailable for Chinese and Indian EB2 applicants until October 1, 2012, when the next fiscal year begins. Further, the Department of State has advised that current indications are that the China and India EB2 categories will not return to the May 1, 2010, cut-off date before spring 2013.

USCIS Reports Latest Count of H-1B Petitions Received Toward Cap

Robert C. Seiger — Thu, 26 Apr 2012 12:03:19 -0800

USCIS began to accept petitions for H-1B visas that are subject to the Fiscal Year 2013 Cap on April 2, 2012. The current annual Cap on available visas is 65,000. Some petitions are exempt from the Cap under the advanced degree exemption. The first 20,000 petitions received and filed for a beneficiary who has obtained a U.S. Master's Degree or higher are exempt from the Cap.

As of April 20, 2012, USCIS reports receiving 25,000 eligible Regular Cap petitions against the 65,000 available visas.

Additionally, USCIS reported that as of the same date, 10,900 eligible Master's Degree Exempt petitions had been received against the 20,000 available.

Supreme Court Hears Challenge To Arizona's Controversial Immigration Statute

Jeffrey W Toppel — Thu, 26 Apr 2012 10:25:56 -0800

The U.S. Supreme Court (with just eight justices sitting) has held oral argument on the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”) in Arizona v. U.S., No. 11-182. Justice Elena Kagan is not participating in the case because she was the Solicitor General and involved with the DOJ’s initial challenge to the Act.

The DOJ’s lawsuit challenges the following four key provisions of S.B. 1070:

• A provision that makes it a crime for an occupant of a car stopped on a street to hire and pick up (or attempt to hire and pick up) passengers for a different location if the vehicle blocks or impedes the normal movement of traffic.

• A requirement that law enforcement officers check a person's immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally.

• A provision authorizing police to arrest immigrants without a warrant where "probable cause" exists that they committed any public offense making them removable from the country.

• A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government-issued identification.

The Ninth Circuit of Appeals sided with the DOJ and affirmed an Arizona federal district court’s decision to block enforcement of these provisions days before they were set to go into effect.

The Justices spent a significant portion of the 70-minute oral argument questioning the Solicitor General on the DOJ’s position that the statute is preempted by federal law. One of Justice Antonin Scalia’s quips may tip the direction of the Court: "If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?"

This is the second time in two years that the Court has been asked to decide the validity of an Arizona immigration statute. In May 2011, it upheld the Legal Arizona Workers Act, which requires Arizona employers use E-Verify for new employees and imposes significant sanctions on employers that knowingly or intentionally hire unauthorized workers.

A ruling is expected sometime in early summer. If the Court splits 4-4, the challenged provisions of S.B. 1070 will not take effect; however, the constitutional issues facing other recently enacted state immigration statutes throughout the U.S. may go unanswered for the time being.

Jackson Lewis will continue to follow this case.

Document Fraud in Workplace Gets A Congressional Hearing

Kevin Lashus — Thu, 19 Apr 2012 07:35:16 -0800

The prevalence of document fraud in the workplace was the subject of Immigration and Customs Enforcement Deputy Assistant Director Waldemar Rodriguez’s testimony yesterday before the U.S. House of Representatives House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement. She noted that because immigration-related crime poses a significant threat to national security and public safety, ICE continues to prioritize investigation of identity fraud.

Identity fraud is regularly found in investigations involving critical infrastructure protection, worksite enforcement, visa compliance enforcement, and national security. “While commonly used by aliens attempting to enter or remain in the United States typically to obtain work, document and benefit fraud have also been used by terrorists and other criminal organizations to facilitate illicit activity,” she said. To address the risk and thwart the activity, ICE created Document and Benefit Fraud Task Forces (DBFTFs)—19 in all throughout the United States. The DBFTFs work hand-in-hand with the U.S. Attorney’s Office, U.S. Citizenship and Immigration Services, U.S. Department of Labor, U.S. Department of State, and the Social Security Administration.

Since 2009, ICE Worksite and DBFTF teams have audited more than 7,000 employers suspected of hiring illegal labor, debarred nearly 600 companies and individuals from federal contracts, and imposed over $80 million in civil penalties. Rather than comment on the prevalence of fraudulent document usage, DAD Rodriguez instead advised that employers—concerned that they might be the subject of an I-9 inspection that results in civil fines, debarment, and, ultimately, criminal prosecution—should turn to the ICE IMAGE program to protect themselves from identity thieves.

Two elements of the IMAGE program are:

(1) participating in the E-Verify program to take advantage of its Photo Tool for new hires that present U.S. Passports, Lawful Permanent Resident Cards, Employment Authorization Documents, and, for the time being, Mississippi driver’s licenses; and
(2) providing forensic document training to hiring managers and HR staff that may involve the use of blue light devices and magnifying lenses.

Participating in IMAGE presents challenges. Employers need to educate themselves about the risks. Each I-9 audit brings with it the potential for a criminal investigation. So, prior to heeding DAD Rodriguez’s advice, employers should take a long look at their internal compliance strategy and partner with specialized immigration counsel for advice.

USCIS Releases Information on Filed H-1B Petitions

David S. Jones — Mon, 09 Apr 2012 14:33:46 -0800

As of April 4, 2012, USCIS has received 22,500 H-1B non-immigrant visa petitions needed to meet the regular and master’s degree caps, according to information released by the agency on H-1B non-immigrant visa petitions for Fiscal Year 2013. Approximately one-third of the petitions received are counted toward the 20,000 master’s degree cap. The H-1B regular cap is 65,000. The rate of petitions so far represents a 50% increase over FY2012, when the cap was not reached until November 21, 2012. If this pace continues, it is unlikely that H-1Bs will be available beyond this summer.Employers should file any needed H-1Bs as early as possible.

Jackson Lewis will continue to provide updates on the cap numbers as they become available.

ICE In The Easter Basket

Kevin Lashus — Wed, 04 Apr 2012 09:08:27 -0800

The Obama administration is launching another round of worksite investigations. ICE officials indicate approximately 500 employers have been visited during the past couple of days by Special Agents who have requested not only the employment verification forms (Forms I-9), but also evidence of the corporate structure, contracts with subcontractors and temporary employment agencies, and payroll records. Generally, businesses are required to make sure they are hiring only people who can legally work in the U.S.

As previously noted, the Obama administration's worksite strategy differs from that of the Bush administration, which focused on high-profile raids that led to arrests of hundreds of workers at a single work site. ICE still conducts raids—they’re just “silent” now; requiring employers to terminate significant portions of their workforce without the grand mass arrests or flashy news releases. Because of criticism that the Administration was auditing only small businesses, larger employers that are being re-inspected have the most to lose.

Notices of Inspection (NOIs) instruct companies that they have three (3) days to present the Forms I-9 of their employees for inspection. ICE will review companies’ hiring records to determine whether they are complying with the Immigration Reform and Control Act of 1986 (IRCA). ICE continues to consider these inspections an important enforcement tool enforcement —especially in light of recent critical comments from Lamar Smith (R-San Antonio), the current Chairman of the House Judiciary Committee . This initiative continues reflect a renewed department-wide focus in targeting employers involved in the hiring of unauthorized workers and related criminal activity.

What to do if you receive a Notice of Inspection (NOI)?

Receipt of a NOI should be taken very seriously without regard to the size of your company— especially if you have been targeted on more than one occasion. It is critical that you act immediately to secure a team of experienced compliance experts to guide you through the ICE inspection process. We recommend taking the following steps immediately upon receiving an NOI:

• Notify your management and executive teams
• Retain experienced immigration counsel
• Gather I-9s and supporting documentation
• Consider proactive compliance planning, where appropriate

Diligent employers must redouble their compliance efforts, and those who have not yet instituted compliance initiatives must undertake a comprehensive review of their records, policies and protocols.

USCIS Seeks Public Comment on New I-9 Form

Kevin Lashus — Wed, 28 Mar 2012 10:11:25 -0800

AUTHORS: Kevin Lashus and Robert Seiger

USCIS is seeking public comments on its proposed revised Form I-9 (Employment Eligibility Verification form). As all employers in the United States are aware, employers must complete the Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

Highlights of the proposed changes include:
• The 5-page form and instructions would expand to 9 pages, with nearly 6 pages of instructions
• “Employers” is defined in the instructions
• “Time of hire” is redefined as “no later than the first day of work for pay”
• Last name has been clarified to include “two last names or a hyphenated last name”
• Employees are instruction to note, “N/A” if they have no maiden name
• P.O. boxes are no longer acceptable in the address field
• An email and telephone number field has been added (to assist DHS in contacting the employee)
• The citizenship or immigration status boxes have been defined
• A new set of instructions for minors and certain disabled employees
• The Thursday Rule (providing for completion of section 2 prior to close of business on the Thursday after a Monday hire) is identified and authorized
• Specific instructions are provided to employers hiring foreign students
• Employers are authorized to receive expired documents and receipt notices is certain instances
• Attempts by employers to use section 3 to reverify U.S. citizens and Lawful Permanent Residents is strictly prohibited
• The election as an “alien authorized to work” has been greatly expanded to include separate sections for alien registration/USCIS number identification (limited to 9 digits) AND for aliens presenting an I-94 (expanded to 11 digits)
• An alien authorized to work utilizing an I-94 is also required to include his/her foreign passport number and country of issuance
• The list of acceptable documents has two significant changes: the List A foreign passport/I-94 combination is divided into subparts, and the List C Social Security Card section now provides examples of the annotations that make the card invalid for I-9 purposes

The current I-9 form and instructions are accompanied by a 63-page manual. The new form and instructions likely will come with a longer manual, which has yet to be released.

Employers interested in providing comments are encouraged to contact counsel to discuss how to effectively express how the proposal will affect their ability to conduct profitable business. Comments must be submitted by May 29, 2012.

Employment-Based Immigrant Visa Category EB-2 Going to Retrogress?

Robert C. Seiger — Fri, 23 Mar 2012 10:54:13 -0800

The tide seems to be turning and the EB-2 immigrant visa numbers may again retrogress for nationals of India and China. Charlie Oppenheim, Chief, Visa Control and Reporting at the Department of State, speaking at the recent AILA Midwest Regional Conference in Chicago, advised American Immigration Lawyers Association Members that he will likely retrogress India and China-Mainland born Employment-Based Second Preference (EB-2) priority dates back to August 2007. The April 2012 Visa Bulletin reports priority dates of May 1, 2010 for this immigrant visa category. This retrogression will likely be effective with the May or June 2012 Visa Bulletin. The EB-2 immigrant visa category is the route to Permanent Residence (a “Green Card”) for employer sponsored applicants who possess an advanced degree. The Visa Bulletin generally controls when these applicants are permitted to apply for the final stage and receive their Green Cards based upon their priority date (the date their applications were filed) matching the dates reported by the Visa Bulletin.

This proposed retrogression will end the dramatic advancements of that green card category over the past months. The implications for this retrogression for employers is that employees who were ready to file their final stage of their Green Card and receive that card, may again be subject to a significant wait.

DOL H-2B Rule Modifies Application Process, Strengthens Worker Protection; Effective April 23, 2012

Otieno B. Ombok — Wed, 14 Mar 2012 12:45:25 -0800

Reversing many of the critical reforms initiated in 2009 that streamlined the H-2B application process, the U.S. Department of Labor has amended its regulations governing the certification of the employment of foreign workers performing temporary or seasonal non-agricultural labor or services under the H-2B visa program. The Final Rule will take effect on April 23, 2012. The H-2B visa program allows up to 66,000 visas each year for the entry of low-skilled, non-agricultural guestworkers.

The Final Rule significantly and fundamentally changes the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers. The changes mirror those introduced to the H-2A agricultural worker visa program in 2010. Major features of the Final Rule include the establishment of a national electronic job registry for all H-2B jobs to improve U.S. worker access to these temporary jobs, extension of H-2B worker protections to corresponding U.S. workers, and the “three-fourths guarantee” (employers must guarantee employment and wage payment for a certain period of time).

The Final Rule makes participation in the H-2B visa program more burdensome. These changes, in particular the “three-fourths guarantee” and extension of worker protections to corresponding workers, taken with the new prevailing wage determination methodology rule introduced in 2011, may lead some employers to consider abandoning the H-2B program for other options. As with many burdensome regulations, talented immigration counsel can make the difference between the seemingly impossible and the probable.

Prior to the April 23, 2012, implementation date, employers should consider taking the following steps:

1. File any “ready” H-2B labor applications under the current regulations;
2. Educate staff about the new rules and timelines involved so they can plan for filings once the changes take effect. Under the new bifurcated application process, employers will be required to begin the H-2B application process approximately seven months before the date when new H-2B workers are needed;
3. Develop a uniform H-2B policy that takes account of all financial arrangements with H-2B workers, such as employee relocation expenses and deductions for housing, and contains mechanisms for payment or reimbursement of transportation expenses and visa fees;
4. Review contracts or agreements with all staffing and recruitment companies to ensure they can pass muster or scrutiny under the new regulations with regard to prohibited payments by H-2B workers; and
5. Update document retention policies and procedures to ensure compliance with the proposed document retention requirements.

H-1B Employers: Prepare For Site Visits From USCIS

Kelsey E. O'Keefe — Fri, 09 Mar 2012 08:38:46 -0800

At a time of increasingly aggressive enforcement of immigration laws, the California Service Center of the U.S. Citizenship and Immigration Service has notified certain stakeholders that the USCIS will be ramping up “administrative site visits” in connection with H-1B petitions filed by U.S. employers. This is an effort at enhanced enforcement in response to the H-1B Benefit Fraud Analysis report released in September 2008. While thus far, this is the agenda of the California Service Center, we can expect to see similar moves from other service centers. Employers should take the opportunity to prepare for what to expect of a site visit.

The USCIS advised that petitioners should be prepared for administrative site inspectors to ask questions that pertain to any aspect related to the terms and conditions of employment, including job duties, salary, work location, and work hours. Further, inspectors regularly would ask whether the employee has paid any fees in association with the filing of the H-1B petition. There are specific requirements regarding who may legally pay H-1B fees.

Site inspections typically occur at the work location listed on the Form I-129 petition. If an employee will be working anywhere else, the employer should include an itinerary for all worksites and ensure the Labor Condition Application corresponds to all locations as necessary.

Inspectors typically will request to speak to a company representative (i.e., the signatory of the petition or the listed contact person) and the beneficiary employee. The inspector also may ask to review documentation related to the petition, as well as to visit the employee’s desk or workspace.

Site inspections are made on a random basis and may occur more than once. Employers should prepare in advance by having on hand relevant information, such as where the employee works, where the petition documents are located and, of course, how to get in touch with counsel, if necessary.

Department of Homeland Security Strategic Plan Released

Kevin Lashus — Tue, 14 Feb 2012 07:46:59 -0800

Secretary Janet Napolitano has released the U.S. Department of Homeland Security’s Strategic Plan for Fiscal years 2012-2016. The plan, released on February 13, outlines broadly the Department’s missions and goals to align program activity to better serve the public. More importantly, the plan revisits mission performance benchmarks and projects how those benchmarks will change as the Department “successfully” implements its objectives.

Employers should be interested especially in the third “primary” mission of the Department: Enforcing and Administering Our Immigration Laws. The Department emphasizes its commitment to reducing the demand for illegal immigration by eliminating conditions that encourage unauthorized employment. In order to meet that objective, the Department predicts that over the course of the next four fiscal years, it will initiate nearly double the number of criminal prosecutions of employers for criminally hiring unauthorized employees—from 296 this past fiscal year to 478 employers arrested or sanctioned in the current fiscal year (through nearly 600 employers by the end of FY 2016). It will do so by increasing the number of administrative I-9 audits, by further perfecting the intelligence sharing capability of its member bureaus, and by continuing to support the roll-out of E-Verify and IMAGE initiatives that encourage employers to transmit sensitive employee information to government databases. Thus, the risks of faulty compliance have never been greater.

Employers should consult with compliance counsel to review the protocols and to sample I-9s to ensure any compliance failures are quickly remedied. They should not trust to chance that systems they have instituted will work as planned. The best defense to allegations of criminal violations is a robust internal (attorney-supervised) audit. The government credits employers who pro-actively address failures and institute compliance protocols. In other words, an employer need not be perfect to protect against criminal investigation, but needs to know enough to seek assistance.

L-1 Specialized Knowledge - Where Do We Go From "If Everyone Is Special Then No One Is Special?

Minnie Fu — Tue, 14 Feb 2012 07:36:48 -0800

Co-Author : Michael Neifach

Many multinational companies with global operations use L-1 visas to facilitate the transfer of their executives, managers and specialized knowledge personnel into the U.S. for temporary assignments. In the last couple of years, these companies have experienced extreme backlogs, denials and inconsistent challenges by U.S. Citizenship and Immigration Service and Consular Offices.

The U.S. Chamber of Commerce recently hosted a business community discussion on L-1 legal and policy issues with Director Alejandro Mayorkas, Director of USCIS, Donald Neufeld, Associate Director for USCIS’s Service Center Operations, Robert Silvers, Senior Counselor to the Director, and David Donahue, Assistant Deputy Secretary for Visa Service.

The Chamber noted that in the last few years, L-1B visa denials and processing delays have increased by 200 to 300 percent . These denials and delays have caused tremendous loss of business opportunities for the affected companies due to the inability to timely transfer critical specialists to the U.S. Companies and practitioners know that certain consular offices are more likely than others to deny L-1 petitions. In addition, the U.S. government has begun to take a more restrictive view as to what constitutes specialized knowledge, indicating that if a significant proportion of a company’s personnel possessed specialized knowledge, then none of them could be deemed specialized.

During the Chamber meeting, representatives from multinational companies reported that extensive follow-up documentation requests from Consulates or denials of petitions outright have cause them delays of seven to eight months, or more, in bringing essential specialized knowledge employees, particularly those who possess critical technology expertise, to the U.S. In a much-welcomed statement, Director Mayorkas confirmed that the government agencies recognized the importance of providing clarity to the L-1 specialized knowledge standard and are committed to providing updated policy guidance to the public. In response to a question about denials based upon the number of specialized knowledge employees within a company and an earlier agency interpretation that if everyone is special, no one is special, Director Mayorkas confirmed that during the USCIS’s November 2011 training, field adjudicators and officers were instructed that the number of specialized knowledge employees in a company should not be a basis in determining if an L-1B specialized knowledge petition would be approvable. Director Mayorkas indicated that further guidance on this would be available soon.

Practitioners and employers who rely on intracompany transfers as an important part of overall staffing strategies welcome the USCIS’s willingness to clarify this issue. Facilitating the transfer of workers with needed specialized skills to the United States is consistent with the intent of Congress in enacting the L-1B specialized knowledge regulations and helps American businesses to operate more competitively in the global economy.

Significant Increases In H-1B And L-1 Visa Denials By USCIS

Robert C. Seiger — Fri, 10 Feb 2012 13:09:23 -0800

Author - Sujata Ajmera

The National Foundation for American Policy (NFAP), a non-profit, non-partisan public policy research organization, recently released an analysis of U.S. Citizenship and Immigration Services (USCIS) data on the number of H-1B and L-1 petition denials issued by the Agency in each fiscal year from 2003 to 2011. The results reveal a significant increase in the number of H-1B and L-1 denials beginning in FY2008 and continuous increase through FY2011, with a significant spike in FY2009, during which every visa category had a dramatic increase in denials.

The denial rate for L-1B visa petitions increased from 9% in FY2003 to 27% in FY2011. The denial rate for H-1B visa petitions increased from 12% in FY2003 to 17% in FY2011, peaking at 29% in FY2009. The data also shows that if a company received approval of its visa petition, it likely had to first overcome a Request for Evidence (RFE). In the past, RFEs were issued when USCIS case officers needed clarification or additional information to adjudicate a petition. Based on the statistics, it appears either the majority of employers have abruptly stopped filing complete petitions, or, more likely, USCIS has decided that they require more information than actually set forth in the regulations to adjudicate a case.

Most alarming is the increase in the number of RFEs issued for L-1B and L-1A cases, in particular. RFEs for L-1B cases more than tripled from FY2003 to FY2011, from 16% to 63%. Similarly, RFEs for L-1A cases went from 12% to 51% over the same period. Employers now are statistically guaranteed that one in every two L-1 petitions they file will be issued an RFE.

As there has been no significant change in the regulatory criteria for H-1B and L-1 status approval, this increase in petition denials and RFE issuance is an indication that USCIS adjudicators have changed their internal standards of review to make it more difficult for skilled foreign nationals to obtain work authorization in the United States.

The data also shows that USCIS denies more L-1B petitions for Indian nationals than any other country. Whether this is indicative that the Agency has targeted Indian nationals is unclear; however, employers who seek skilled Indian employees should be prepared for additional scrutiny. L-1 visa issuance declined at U.S. Consulates in India in FY2011, but actually rose overall for the rest of the world.

The NFAP study confirms what many U.S. employers already know: it is now more difficult than ever to hire or transfer critical foreign national employees whose presence is required to ensure continued product development and profitability. Jackson Lewis attorneys have experience in addressing and overcoming RFEs and visa denials on behalf of U.S. employers. We will continue to monitor and report USCIS trends and policy changes.

Worksite Enforcement Update - Employers Revisited by ICE?

Kevin Lashus — Wed, 01 Feb 2012 09:08:57 -0800

“Hi, this is Kevin."

“Hi Kevin, it’s Sally at ABC Company. We need your help again. ICE Special Agents came by the worksite again today and delivered a Notice of Inspection for our Forms I-9 and supporting documents. They limited the inspection to the I-9s for active AND separated employees hired after their last inspection, but were sure to mention that they’re taking a look at our old mistakes to see if we’ve learned from the last time we were inspected . . .”

“Sure Sally. You’re not the first of our clients to be revisited by ICE. We’ve got the team in place, and we’re ready to get to work.”

Calls like this one will be increasing for immigration lawyers. The Obama administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to ICE.

Obviously, ICE offices has kept track of employers targeted for re-evaluation. ICE has not discussed any plans for the NOIs, but has confirmed that “the agency continues to be interested in egregious employers as they tend to break other laws in addition to immigration…including paying employees under the table, avoiding taxes and ignoring employee protections.” You do not need to have run afoul of the law before to feel ICE’s heat. The Obama administration has reimposed civil fines for paperwork and substantive violations, making Form I-9 errors an expensive problem even for first time infractions.

We expect additional ICE initiatives to continue throughout 2012 (it is an election year). Employers may consider contacting their Congressional representatives to revive interest in comprehensive immigration reform, to temper the need for tough enforcement efforts . For now,, diligent employers must redouble their compliance efforts, and those who have not yet started must focus their efforts on a comprehensive review of their records, policies and protocols.

Obama Announces Commitment to Expanding Global Entry

Kevin Lashus — Tue, 24 Jan 2012 08:38:23 -0800

Speaking before the American public (and Snow White, the Seven Dwarfs, and Mickey Mouse at Disney World), President Barrack Obama announced an expansion of the Global Entry program, including the easing of B1/B2 tourist processing times at consular posts around the globe, among other things.

Global Entry is a U.S. Customs and Border Protection program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. The program is intended for frequent international travelers—mainly executives and managers for multinational corporations. Those approved for the program enjoy a streamlined admission process at U.S. airports after international travel into the United States. There is no minimum number of trips to qualify for the program.

By executive order, the President ordered the Secretaries of State and Department of Homeland Security to submit jointly a report describing the progress of achieving the goal of expanding Global Entry. The initiative seeks to ensure that the country remains secure while increasing travel and easing transactions costs (e.g., time during inspection) into the United States. The Jackson Lewis Global Immigration Group anticipates that the report will request finalization of regulation ending the current pilot program, making it permanent for additional U.S. international airports, and reducing average wait times at primary inspection to fewer than five minutes.

Multinational employers should contact their counsel to discuss how they may take advantage of the program for their frequent flyers—executives, management, and highly-skilled labor.

Employers Responsible For Wages For Non-Productive Employment Attributable To Social Security Card Requirement

Kevin Lashus — Fri, 13 Jan 2012 08:47:54 -0800

Co-Author: Maggie Murphy

The DOL Administrative Review Board has decided that employers are responsible for paying wages to H-1B foreign nationals who—but for a delay in the Social Security Account enumeration and card issuance process—would be actively employed. The same rule likely will be applied to other nonimmigrant workers who experience delays in Social Security number processing.

The Board held the employer must pay the H-1B worker for her nonproductive activity during the time she was awaiting the delivery of her Social Security Card. Under 20 C.F.R. § 655.731(c)(7)(i), if the H-1B nonimmigrant is not performing work due to the employer’s requirement that she obtain a Social Security Card before commencing employment with the employer, the employer must pay the employee at the required wage for the occupation listed on the Labor Condition Application filed with the DOL. USDOL & Wirth v. University of Miami Sch. of Med., ARB Case No. 10-090, 10-093, ALJ Case No. 2009-LCA-026 (Dec. 20, 2011).

A Social Security Number is not required for employment verification (I-9) purposes, but many employers require it for payroll processing. H-1B employees are authorized to work upon lawful admission to the United States. Accordingly, to the extent that an employer requires a Social Security Number as part of payroll processing, it must be prepared to pay the employee if it elects to delay employment during the SSA enumeration process.

The DOL likely will apply this rule to other nonimmigrant categories, including the L-1, H-3, E-3, and O-1. Therefore, employers should consider practices that will allow these authorized workers to start employment while waiting for Social Security enumeration. Such practices include setting up a temporary payroll profile with a “dummy” number and updating the profile once the number is issued.

An employer that participates in E-Verify must verify its employees’ Social Security Numbers through the free federal program. Thus, such an employer needs the employee Social Security Numbers and should set a projected start date that allows enough time for Social Security processing.

Whatever the case, employers must now be mindful of payment responsibilities for foreign nationals sponsored to work for the employer in the U.S. Once the approved start date hits, so does the wage/payment requirement, requiring that employers who insist on Social Security Numbers from all employees take a more active role in tracking and advising employees how and when they should apply.

Study Counters Perceptions, Finds Immigrants Boost Employment for U.S. Natives

Robert C. Seiger — Fri, 23 Dec 2011 12:04:14 -0800

Author : Sujata Ajmera

The American Enterprise Institute (AEI) and The Partnership For A New American Economy have released a study that found that immigrants boost employment for U.S. natives. The purpose and goal of the study, by Madeline Zavodny and entitled “Immigration and American Jobs,” was to explore the effect foreign-born employees have on the overall U.S. job market and to identify ways in which immigration policy and reform can affect innovation and job growth in the United States. Using data from the U.S. Census Bureau and other sources, the study concludes that immigration policy can and should be a significant component of America’s economic recovery.

The study found that immigrants with advanced degrees, specifically, in science, technology, engineering, and mathematics (STEM), boost employment for U.S. natives. In fact, between 2000 and 2007, employment of an additional 100 foreign-born workers in STEM fields with advanced degrees from U.S. universities was associated with an increase of 262 jobs for U.S. natives.

Additionally, according to the study, temporary foreign workers, both skilled and less skilled, also boosted U.S. employment over the same period. Adding 100 H-1B skilled workers to the U.S. workforce resulted in an additional 183 jobs among U.S. natives. Even more notable was that adding 100 H-2B (less-skilled) workers to the overall workforce resulted in an additional 464 jobs for U.S. natives; an impressive statistic that seems to counter the mainstream perception that less-skilled immigrant workers have a negative impact on the U.S. job market and “steal” jobs from U.S. workers.

To illustrate this in a real-world context, the study provides the following example: If an employer is able to hire more foreign-born roofers, American contractor can ultimately build more houses and hire more U.S. workers. This can include U.S. workers in both skilled and less-skilled positions, such as workers for the “front office” and “foremen” to supervise workers.

The study found no evidence that foreign-born workers, in the aggregate, hurt U.S. employment. The empirical data demonstrated that immigration policy actually was a growth factor for the U.S. economy. Therefore, the study suggests, policy reform should be a significant component of America’s economic recovery.

While the most recent bi-partisan federal legislative effort to enact immigration policy reform appears to be stalled in committee, studies like this may yet restart the movement for comprehensive reform by correcting perceptions and identifying the positive benefits the right legislation can have on the U.S. job market.

Jackson Lewis will continue to monitor both state and federal legislative activity and will keep you updated on policy changes that may impact employers and their foreign national workers.

Key Provisions of Arizona's Controversial Immigration Law Will Come under U.S. Supreme Court Scrutiny

Jeffrey W Toppel — Thu, 15 Dec 2011 11:54:47 -0800

The U.S. Supreme Court has agreed to hear the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). Last year, the DOJ filed a lawsuit challenging several of the Act’s provisions on federal preemption grounds, arguing the federal government has exclusive authority to address immigrations issues and policy. A federal district court in Phoenix blocked enforcement of the Act’s most controversial provisions days before they were scheduled to go into effect. On April 11, the Ninth Circuit Court of Appeals sided with the DOJ, affirming the lower court’s decision.

The case could be heard by the Supreme Court as early as April of 2012. Only eight of the justices will hear the case, Justice Elena Kagan recused herself because she was the Solicitor General involved with the Obama Administration’s initial legal opposition to S.B. 1070. Therefore, if the Court splits 4-4 on the legal challenge, the provisions will not take effect. Such a the decision, however, will not settle the larger constitutional issues at stake in the case. Since the Arizona statute was enacted, at least four other states (Georgia, Alabama, Utah, and South Carolina) have enacted similar legislation, which are currently facing challenges in the lower courts.

This will be the second case challenging an Arizona immigration statute to go up to the Supreme Court in as many years. In May 2011, the U.S. Supreme Court, upholding the statute, rejected arguments that Arizona’s Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program. In the months since the Supreme Court’s decision, there has been an increase in the number of LAWA investigations by law enforcement officials. That trend is expected to continue.

We will continue to monitor these legal developments. Jackson Lewis attorneys are available to answer any questions concerning compliance with the growing number of state immigration statutes.

The Goldilocks Principle - The Dangers of Overzealous I-9 Employment Eligibility Verification

Sean G. Hanagan — Thu, 08 Dec 2011 10:28:08 -0800

Employers navigating the I-9 employment eligibility verification process for new hires are confronted with a gauntlet of confusing rules, standards, and exceptions to the rules that some have opined are deliberately designed to make the innocuous looking one-page form a magnet for errors. Such cynics cite the year-over-year increases in civil fines being levied by ICE on employers through the continuing national workplace audit campaign the agency is prosecuting as proof of a fatally flawed system.

While the social security number is an optional field on the form according to the latest M-274 Handbook for Employers, the forms will be considered deficient and employers may be subject to fines based on a variety of issues which may appear to be “harmless error” from a common sense perspective, including among others: missing date, signature on the wrong line, notation to “see attached” copies of identification, correct ID data listed in under the wrong list, etc. Employers who have been through the experience of an I-9 audit have become sensitive to the precision required in completing the forms fully, and ICE’s audit and public relations campaigns have conditioned employers to err on the side of completeness in this arena for fear of being heavily fined.

Unfortunately, rules governing I-9 form practice and fines do not focus exclusively on the issue of incompleteness. Employers who fail to walk the legal tightrope of “just enough, but not too much” risk incurring the wrath of the Department of Justice’s Civil Rights Division Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The DOJ has announced that a public employer has been sued for alleged Immigration–Related Employment Discrimination for too zealously checking the work authorization of foreign employees. The employer allegedly discriminated by dictating what documents a foreign employee must present at hire, contrary to the I-9 rule which mandates that the employee be given a choice of what to present. Similarly, lawful permanent residents were allegedly required to bring in updated work authorization documents when their current “green card” documents expired or they would risk termination, contrary to I-9 work authorization re-verification rules.

The bottom line for employers is that in their management of I-9 employment eligibility verification, keeping the “Goldilocks principle” in mind and treating all employees the same regardless of their citizenship or national origin is key to avoiding liability with either ICE on the one hand, or OSC on the other hand.

The Politics of Wage Rate Determinations For Temporary Foreign Workers

Kevin Lashus — Thu, 01 Dec 2011 13:59:41 -0800

The Department of Labor’s Employment and Training Administration has issued a final rule delaying the effective date of a new H-2B wage calculation regulation.

Throughout 2011, the DOL and the Small Business Association (among other interested groups) have been at odds over the proposed change to the way prevailing wages are calculated for H-2B workers.

Rather than use the traditional wage calculation (from a market survey), the proposal calls for employers to pay H-2B (and U.S. workers recruited in connection with a temporary labor certification application) a “wage that meets or exceeds the highest of the following: the prevailing (market) wage, the federal minimum wage, the state minimum wage or the local minimum wage.”

Thus, as successfully argued by challengers of the proposed rule, DOL would be artificially inflating the prevailing wage assessments by relying upon the federal minimum wage (which is usually higher) for most temporary jobs. The determinations being made by DOL at the end of this year have been onerously high—such that the H-2B program was no longer economically viable.

Most employers would prefer to rely upon the market wage rather than the wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment,

Mounting political pressure from the agricultural, hospitality, travel, and landscape-maintenance industries, among others, has prompted President Barack Obama to include a prohibition to the Government’s provision of funding to the DOL to administer the proposed rule in the continuing appropriation resolution.

Bottom line: it appears that the business community was able to sway the White House to help prevent the DOL from effectively shutting down the H-2B program. At the DOL’s artificially inflated wage rates, an employer would be hard pressed to find a way to make the program work. When competitors are able to pay the lower market wage for employees, it makes no sense for an employer to apply for an H-2B certification, at a much higher wage.

For now, the H-2B guestworker program is still viable for employers looking to fill peakload or seasonal positions with foreign workers. But it’s only a matter of time before DOL takes another crack at shutting-down the H-2B process.