USCIS announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The H-1B program is used to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:

• Institutions of higher education or related or affiliated nonprofit entities;
• Nonprofit research organizations; or
• Governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition.

Should you wish to discuss your case or become a client of our firm, please contact us at info@immigrationsolution.net or call 562 612.3996.

The USCIS Verification Division and the Office of Public Engagement invite any interested parties to participate in a webinar either tomorrow or Thursday on E-Verify Self Check. E-Verify Self Check, the first service offered directly to individuals by E-Verify, is a simple online service that allows an individual to check his or her own employment eligibility in the United States.   If you missed our previous article on E-Verify and how it functions, you can access it here.

E-Verify Self Check will initially be available in the following locations as of March 21, 2011: Colorado, Idaho, Mississippi, Arizona, Virginia and the District of Columbia. USCIS will be hosting webinars to provide an overview of E-Verify Self Check on the following dates:

• Wednesday, March 16, 2011 @ 1:00pm (EDT): Click here to Register

• Thursday, March 17, 2011 @ 3:30pm (EDT): Click here to Register

Once your registration has been confirmed, you will receive an email with instructions on how to join the webinar.

On the day of the webinar: Please note that on the day of the webinar, you will need to take the following steps:

1. Login to the webinar using the instructions provided to you in the registration email

2. Call the toll-free number provided to you in the registration email

** Please note that space is limited to accommodate 100 participants per session. **

The owner of a Southern California furniture manufacturing company, Brownwood Furniture located in Rancho Cucamonga, has been sentenced to 10 months in federal prison for knowingly hiring illegal immigrants and six months for continuing to employ illegal aliens.  The sentences will be served concurrently.  In addition to the prison terms, he was ordered to pay a $15,000 fine.

Prosecutors say 57-year-old Brownwood Furniture owner Rick Vartanian was told earlier that 61 of his 73 workers at the facility were illegal immigrants and had submitted invalid documents to obtain their jobs.  In November 2009, Vartanian told U.S. Immigration and Customs Enforcement agents that the illegal immigrants no longer worked for Brownwood Furniture, but investigators discovered 18 illegal immigrants were still working for him.  Vartanian, who was convicted of obstruction of justice and employing illegal immigrants, was sentenced Monday by a Los Angeles federal judge.

Brownwood Furniture vice president Michael Patrick Eberly pleaded guilty to employing illegal immigrants and he was placed on a years’ probation and fined $10,000.

The charges against the defendants stem from an investigation that began after ICE HSI received an anonymous tip that Brownwood furniture was using unauthorized labor. An audit of the company’s hiring records in July 2009 revealed that 61 of the firm’s 73 employees had submitted invalid documents to obtain their jobs. After ICE HSI notified the company about the discrepancies, the executives told investigators the unauthorized workers had been terminated. However, when ICE HSI agents executed a search warrant at the business in Dec. 2009, they encountered 30 unauthorized workers, 18 of whom had purportedly been terminated following the July audit.

These sentences make very clear that employers who knowingly hire unauthorized workers, face seriously dire consequences.

Should you require the services of an expert team of employer compliance specialists, please contact our office to discuss your situation and visit our I-9 Employer Compliance Resource Center:  www.I-9Audits.com

Our March 2011 news is now available.  You can access our Immigration News here and our I-9 Compliance Newsletter here.  Should you wish to discuss your immigration case with us, we can be contacted at info@immigrationsolution.net or by phone at 562 612.3996.

We have a volume of free information on our websites that includes newsletters, news flashes, podcasts, blog, and articles.  Please feel free to sign up on our website:  www.immigrationsolution.net to receive our information through email or iTUNES.

Bloomberg News on 1/27/2011 released the findings of its report on a proposal to require every U.S. employer to use E-Verify to confirm the legal status of all new hires.  The report  revealed that businesses with less than 500 employees would undoubtedly bear the greatest burden, spending about $2.6 billion a year to use the government’s “free” web-based program, compared with less than $100 million for the 4% that used it in 2010.

A study conducted in December 2010 by Westat that was commissioned by the government as part of a multi-year evaluation of the E-Verify program represents the result of their 2009 findings of a nationwide survey of 511 respondents that encompassed nonusers (companies that have never signed a Memorandum of Understanding) to participate in E-Verify, focus groups of nonusers, surveys of users, and interviews with employees that received TNC’s (Tentative Non-Confirmations).

The primary finding of the survey and the principal barrier to participation in E-Verify appears to be a lack of awareness of the Program. Among the case study participants, 63 percent were not familiar with E-Verify. Case study participants were often positive about the characteristics of E-Verify, and among the 101 who answered a question concerning their future plans, 23 percent definitely planned to participate in E-Verify in the future (while 32 percent would not participate unless mandated to do so).

For those employers who have heard of E-Verify, the information often came from professional associations, media outlets and government materials or publications.

The other primary reasons for not participating were not perceiving a benefit from participating, and thinking it would be too costly or time-consuming to participate.  The perception of burden is based in part on employers’ negative experiences with other government Internet-based programs (such as the Social Security Administration/Business Services Online Website).

Large employers were much more likely to be familiar with E-Verify than small employers. A majority of large employers in the case study (56 percent) were familiar with E-Verify, compared with 29 percent of medium-sized employers and 17 percent of small employers.

The case study participants supported many program changes to E-Verify, with the most popular including the increased use of technology to identify fraudulent documents and to verify identity, allowing a formal appeal by an employer and/or employee of a final case finding, and allowing verification of job applicants before a job decision is made.

Some participants who decided not to use the program did so because they did not perceive any benefit in using it compared to the cost, the manpower, training and the logistics required to use the program.  Others were not using it because they felt that it was a government priority rather than a business priority.  Some felt that it wasn’t their responsibility to control illegal immigration and that it should be the government’s responsibility.

One insightful response came from a business owner who stated, “Hold me, personally, and my company harmless from any loopholes in the system that become exploited by the undocumented population . . . bottom line . . . I don’t want to make the 5 o’clock news by complying with a broken system.”

In summary, E-Verify is not perfect – it doesn’t identify identity theft issues, but it is immigration compliance best practice and should carefully be considered and the pro’s and con’s discussed with an immigration attorney that is informed and specializes in employer compliance issues prior to enrollment.

We link to the Westat Study here.  More on E-Verify Strengths and Weaknesses

We link to our I-9 Employer Compliance Resource Center here.

ICE and HSI worksite enforcement activities strike again – this time it’s temp agencies!

In an ICE Press Release today, it was announced that during an ICE and HSI investigation, it was found that a 2-location temp agency was knowingly supplying undocumented unskilled and skilled warehouse and janitorial workers to their clients as a part of their labor pool.

Clinton Roy Perkins, the owner of Can Do It Inc. in Bensenville, IL, was sentenced on February 16th to 18 months in prison, to be followed by three years of supervised release, for knowingly hiring illegal aliens at the staffing companies. He pleaded guilty in September 2010. On Feb. 25th, U.S. District Judge Joan B. Gottschall also ordered the forfeiture of $465,178 in proceeds obtained as a result of the criminal activity.

Perkins admitted to knowingly hiring more than 10 illegal aliens from Mexico between October 2006 and October 2007.  Perkins did not require the workers to provide documents establishing their immigration status or lawful right to work in the United States.

Perkins and his son-in-law, Chrispher Reindl, paid the illegal workers’ wages in cash; did not deduct payroll taxes or other withholdings. Perkins and Reindl directed low-level supervisory employees to transport illegal workers back and forth between locations near the aliens’ residences in Chicago and work sites in the suburbs. Both also provided bogus six-digit numbers – purporting to be the last six digits of the aliens’ Social Security numbers – to a company, knowing that their workers were in the country illegally and did not possess valid Social Security numbers.

In a quote from special agent in charge of ICE HSI in Chicago:  “We will hold employers accountable for their actions.  Mr. Perkins knowingly hired an illegal workforce and circumvented our nation’s immigration laws for financial gain. The goal of our enforcement efforts is two-fold – reduce the demand for illegal employment and protect job opportunities for the nation’s lawful workforce.”

ICE was assisted in the investigation by the U.S. Department of Labor’s Office of Inspector General in Chicago. Assistant U.S. Attorneys Christopher R. McFadden and Daniel May, Northern District of Illinois, prosecuted the case.

One of Mississippi’s most successful and largest private employers pled guilty in federal court last week to knowingly violating federal criminal conspiracy laws in its employment of illegal aliens at the company’s electrical transformer plant in Laurel, MS following an investigation by ICE and Homeland Security Investigations (HSI).  The company agreed to pay a $2.5 million fine, which is larger than normal for such a conviction, the U.S. Justice Department said in a news release.

Immigration agents detained more than 600 illegal immigrants at Howard Industries’ electrical transformer plant during a massive raid on Aug. 25, 2008. Those detained in the raid came from countries including Brazil, El Salvador, Germany, Guatemala, Honduras, Mexico, Panama and Peru, and most of them were deported, though a few were convicted on identity theft charges for using fraudulent documents and providing fake papers to other workers.

The company said in a statement that it was pleased to resolve the investigation “based on the actions of its former human resources manager Jose Humberto Gonzalez.”  Gonzalez is the only company executive who has been charged in the case. He pled guilty in December 2009 to conspiracy and admitted that he hired hundreds of people who he knew were in the country illegally.  

The company had repeatedly denied allegations that it had knowingly hired individuals without work authorization, putting all of the blame on its HR manager, Jose Humberto Gonzalez, who was charged in a 25-count indictment with conspiracy and employee verification fraud.   He faces a maximum of 5 years of imprisonment on the conspiracy charge and on each employee verification fraud count. He also faces a minimum of 2 years imprisonment for the aggravated identity theft charge and possible fines up to $250,000.

Howard Industries was charged with knowingly and willfully conspiring to encourage and induce undocumented workers to reside in the US, and knowingly conspiring to conceal, harbor and shield from detection such workers.  As it turned out, Howard Industries waived indictment and agreed to plead guilty to the one-count felony of  conspiracy to commit offense or to defraud the United States which calls for a term of not less than one and not more than 5 years of probation and a fine of up to $500,000. However, this fine was substantially enhanced to $2.5 million due to the nature of the crime (harboring), the number of workers involved (100 or more), and the size of the company.

Apparently Gonzalez would routinely hire unauthorized workers who presented false identity documents, including green-cards and Social Security cards, and then would complete the I-9 with the fake information.  Gonzalez was also accused of submitting SSNs to the Social Security Administration to verify their numbers and then disregarding the results if they came back as invalid.

E-Verify doesn’t protect against identify fraud: Howard Industries was using E-Verify and ran every applicant through the system, but E-Verify doesn’t detect identify fraud and shouldn’t be used as a substitute for I-9 compliance.  The case at hand teaches a lesson about the E-Verify program, in that using E-Verify doesn’t insulate an employer against penalties and doesn’t provide a safe harbor against worksite enforcement.

So what’s an employer to do?

If you are contemplating ‘going electronic’, whether that be an electronic I-9 system or enrolling in the E-Verify program, it is imperative that you find out what condition your I-9’s are in.  This is done by having a qualified immigration attorney that specializes in compliance issues perform either a partial or full audit on your I-9’s so that the reoccurring errors and violations buried in your paperwork can be identified, corrected, and your staff properly trained.  We additionally encourage our clients to work with us in establishing policies and guidelines as to how they want to process and manage the I-9 function at their organization and document this, and make sure that everyone involved with the process is trained and fully understands your internal policies.

We link to the ICE press release

For more information on our employer compliance services and solutions

If you’d like to listen to this news Blog via podcast, you can do so here:

E-Verify Self Check

The USCIS Self-Check Initiative will go into effect on March 18, 2011 and will permit individuals to check their work authorization status prior to being hired and to enter data into the E-Verify system that might be reflected in federal databases to ensure that the information relating to their eligibility to work is correct and up to date.  This will lead to a more  reliable and accurate E-Verify system that works better for both employers and employees.

How does Self-Check work?

E-Verify self check uses a Web-based interface that will be accessible to all individuals and is a free, voluntary service offered by the government to provide information to the user about his/her employment eligibility in the USA.  The user will not need to register or open an account, but will be required to agree to the “Terms of Use” and restrictions on usage (you may only run a self check on your own information) detailed on the E-Verify Self-Check website before granted access.

The information collected will only be used to:

• Confirm the identity of the user and
• Confirmation of work authorization

The user will be asked to confirm their current work authorization status and to enter minimal biographic information (name, address, date of birth, the social security number is optional).

After the information is submitted it is authenticated by a 3^rd party Identify Assurance Service that will generate 2 and 4 questions that only the user can answer.  If the user is unable to answer a question or the databases of available information from public records, financial institutions and other available records are insufficient, the user’s identify will not be authenticated and the user will be unable to advance to the next step and complete usage of the system. In this event, none of the information entered is provided to or retained by E-Verify Self-Check.  The system does retain, however, a transaction number, the reason for failure, the date and time of the transaction and the error code.

Once the user’s identity has been authenticated, they can then run an employment eligibility query to determine their work eligibility status.  The biographic information that was provided will pre-populate (and cannot be changed) and additional information will be requested that is identical to the information and documentation required for the I-9 form. Following this step, one of three results can occur:

1)  Confirmation of Work Authorization

2)   Possible SSA mis-match information; and

3)  Possible immigration information mis-match

The user is then asked if they wish to resolve the issue if 2 & 3 above are received.  With an SSA mis-match, the system generates a form with their name and biographic information along with the E-Verify Case Number with detailed instructions as to how to resolve the issue  If the issue is immigration related, the system provides instructions to contact E-Verify Customer Service to assist in the correction of their immigration records within 72 hours after the inquiry to speak with a status verification representative.  If the user’s record cannot be corrected by the representative, the user will be advised of further actions required to resolve their immigration mis-match.

Confirming Work Authorization Without Identity

If an individual is unable to authenticate through the IdP but wants to determine work authorization status prior to hire, USCIS will provide information on how to visit a Social Security Administration field office, access Social Security yearly statements, call USCIS, or submit a Freedom of Information Act/ Privacy Act request to access work authorization records. The individual will also be advised to check the information at the various credit bureaus and through a free credit check website.

Conclusion

With the self check program, workers will be able to use E-Verify in much the same way as employers, except that workers will need to take extra steps to verify their own identity.  It will alleviate much of the administrative burdens that fall on employers who receive an E-Verify non-tentative confirmation of an employee’s work eligibility, since the new tool should allow employees to identify and resolve verification problems before they begin a new job.

Resources

For more information on E-Verify, visit USCIS’  E-Verify homepage.

E-Verify Employee Rights and  Responsibilities

The USCIS held a public engagement stakeholder conference on February 2, 2011 where Director Mayorkas announced several new initiatives that they would be launching. We’ll address a few of them, as follows:

1. A partnership with DMV so that they have the capability of accessing the DMV database.  More on this to follow
2. USCIS “Mobile”:  A program that will enable mobile units to access areas within communities that are not being served by pro bono organizations
3. The Secure Mail Initiative:  A partnership with the US Postal Service to ensure that important mail is forwarded and involves sending the secure documents using   Priority Mail with Delivery Confirmation. Using this process allows them to track each individual piece of mail electronically through the U.S. Postal Service and speeds our delivery time while enhancing accountability.  Unfortunately this does not include at this time the mailing of receipt or appointment notices.  Although no plan is perfect, it seems like this new method of mailing important immigration documentation will ensure document receipt in most cases as the recipient, or someone in the same household, will be required to confirm delivery of this documentation.
4. The VIBE Program:  USCIS first announced VIBE back in May 2010 and apparently the beta testing that was supposed to start in June has been delayed until now.  Petitioning employers could possibly begin to see more questions from USCIS about their business operations, commercial activities, structure and employee population.  The program will use Dun & Bradstreet (D&B) databases to verify employer information that is required in certain employment-based petitions. The program is supposedly designed to reduce the documentation that employers are now required to submit with each filing.  VIBE will be used to confirm a petitioner’s ownership, date of establishment, current address, financial information and their relationship with other entities, to name a few.  We highly advise employers to be proactive and update their D&B information and correct any errors.  VIBE will be used to verify I-129 nonimmigrant petitions for E, H-1B, L-1, L blanket, and TN classification, among others.  The I-140 immigrant petitions in the employment-based first preference (EB-1) subcategories for outstanding professors and researchers and multinational managers will also be verified through VIBE, as will EB-2 advanced-degree professional and exceptional ability cases and EB-3 professional, skilled and unskilled worker petitions. VIBE will not be used in for EB-1 extraordinary ability, EB-2 national interest waiver or EB-5 immigrant investor classification, or for O and P nonimmigrant petitions.  The VIBE Program could mean that employers may receive more USCIS requests for evidence (RFEs) and notices of intent to deny (NOIDs)  on immigration petitions, which could cause delays in processing. Be alert to the fact that USCIS plans to issue RFEs or NOIDs when the information provided in an employment-based petition conflicts with the Dun & Bradstreet databases that appear to be the program’s significant resource.
5. “I-9 Cental”  Website:   USCIS will be announcing a new I-9 form compliance website that’s supposed to be available in the Spring of 2011.  The website will provide detailed guidance on how to complete the I-9 form.  The website is supposed to offer smart features such help text, drop down boxes and other interactive tools to help guide the employer and to prevent some of the most comon errors from occurring. 

 We will continue to update on VIBE and I-9 Central as well as other USCIS new initiatives as we hear about them.

For those of you who might like to listen to the news rather than read it, we invite you to tune into “InFOCUS” – immigration news and updates to listen to our podcast on the above-captioned topic.  Should you wish to contact our office to discuss your particular immigration needs, please feel free to do so here.