The Immigration Compliance Group InFOCUS News and update is available for December 2011.  If you’re not signed up to receive our free news and information, we invite you to do so here.

In this issue we address the Outmoded H-1B Cap, H.R. 3012 that eliminates country limits for skilled worker green-cards that just passed the House, application processing times,  miscellaneous News Bytes, and other new in the immigration community.

Should you wish to contact our office to discuss business immigration or employment eligibility verification issues, we’d be glad to hear from you.

The 2011 California legislative season closed on October 9, 2011, with the Governor signing numerous bills.  We reference in our posts today, the E-Verify and the CA Dream Act Bills (separate post below).

Other Bills that were signed also affect employers and employment law, such as, bills that greatly limit the use of consumer credit reports by employers, expanding the definition of gender under state discrimination laws, requiring employers to pay for health insurance coverage during the entire period of pregnancy disability leave.

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AB 1236 “The Employment Acceleration Act of 2011,” states in part:

Except as required by federal law, or as a condition of receiving federal funds, neither the state nor a city, county, city and county, or special district shall require an employer to use an electronic employment verification system (E-Verify), including under the following circumstances:

1) As a condition of receiving a government contract.

2) As a condition of applying for or maintaining a business

license.

3)  As a penalty for violating licensing or other similar laws.

Article 2.5. Electronic Employment Verification Systems:

2813. For purposes of this article, the following terms have the following meanings:

(a) “Electronic employment verification system” means an employment verification system that allows employers to electronically verify workers’ employment authorization with the federal government. This includes the Basic Pilot Program, enacted by Section 404 of Public Law 104-208 and renamed in 2007 as the E-Verify Program, and other pilot programs for electronic employment eligibility confirmation. The term “electronic employment verification system” does not include the I-9 Employment Eligibility Verification form or any other employment eligibility systems that are required by federal law.

To cite some of the reasons itemized in the preamble of the Bill as the basis for its enactment:

(b)  Mandatory use of an electronic employment verification program would increase the costs of doing business in a difficult economic climate. The United States Chamber of Commerce estimates that the net societal cost of all federal contractors using the E-Verify Program would amount to $10 billion a year, federally.

(c) California businesses would face considerable odds in implementing such a program. Employers using the program report that staff must receive additional training that disrupts normal business operations. If E-Verify had been made mandatory for all employers in 2010, it would have cost businesses $2.7 billion, $2.6 billion of which would have been borne by the small businesses, which drive our economy.

(d) Employers report that the cost, technological demands, and staff time that an electronic employment verification system requires to use and implement come at a time when they are already struggling.

(e) California’s unemployment rate has risen to 11 percent. The state must pursue all avenues in facilitating and incubating job development and economic growth.

(f) It is the intent of the Legislature that the state maintain the intent of federal law by ensuring that private employers retain the ability to choose whether to participate in the electronic verification program.

The Bill will render defunct several city and county ordinances in California.  We link to the bill.  Should you have any questions regarding re-tooling your compliance processes and systems, please do not hesitate to contact our office:  info@immigrationcompliancegroup.com, 562 612.3996.

Gov. Jerry Brown on Saturday granted illegal immigrants access to state financial aid at public universities and community colleges, putting California once again in the center of the nation’s immigration debate.

Under current law, undocumented students pay resident tuition rates if they have graduated from a California high school and affirmed that they are in the  process of applying to legalize their immigration status. Effective January 1, 2013, AB 131 will make this limited pool of students eligible to apply for Cal Grants and other state aid.

The legislation builds on AB 130, authored by Assemblymember Cedillo, signed into law by Governor Brown on July 25, 2011. AB 130 makes financial aid from private sources available to the same pool of students. The two laws are collectively known as the “California Dream Act.”

“After having invested 12 years in the high school education of these young men and women, who are here through no fault of their own,” Cedillo said, “it’s the smartest thing for us to do to permit these students to get scholarships and be treated like every other student.”

The California Department of Finance estimates that 2,500 students will qualify for Cal Grants as a result of AB 131, at a cost of $14.5 million. The overall Cal Grant program is funded at $1.4 billion, meaning that 1 percent of all Cal Grant funds will be potentially impacted by AB 131 when the law goes into effect.  For more:  http://gov.ca.gov/news.php?id=17268

This is the best news we’ve heard in weeks.  As Jack Welch (former CEO of GE) recently stated in a CNN interview with Piers Morgan (to paraphrase)… We must have a compelling mission of innovation through which to filter and shape our decision making and legislative reform.

Compete America,  a coalition dedicated to ensuring that the United States has the highly educated workforce it needs to continue to lead in innovation and job creation, applauded yesterday the House Republican Technology Working Group for committing to review current visa rules that inhibit access to highly educated, innovative foreign workers among its policy priorities for job creation.

Under the section, “Ensure American Access to the Best Workers,” the Working Group committed to “examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.”

The American Council on International Personnel (ACIP) had this to say in their Press Release yesterday:

“…Today we applaud the House Republican Technology Working Group for including among its job creation priorities a commitment to review current education policies and immigration laws to ensure that America has access to the best talent, from America and around the world. In its list of priorities, “A Focus on Technology Policies that Foster Job Creation,” released today, the Working Group states:

Ensure American Access to the Best Workers: We will examine current education programs to make sure they are operating efficiently.  We will also examine current visa and immigration laws to make sure we attract and retain the best and brightest minds from around the world.

The commitment is consistent with several recent calls for reform made by both Democratic and Republican leaders, and is in line with ACIP’s long-held position that improving U.S. STEM education and reforming highly educated employment-based immigration policies to allow access to the world’s best and brightest are both needed for building America’s 21^st century workforce.

We applaud the House Republican Technology Working Group for making a commitment today to review education and visa policies to ensure a strong American workforce, said ACIP Executive Director Lynn Shotwell.  We urge Congress and the Administration to join together and enact bipartisan reform of the high-skilled employment-based immigration system this year.”

US companies have contributed nearly $2 billion in H-1B fees to scholarships and US worker training since 1999.  For a list of companies contributing to education and the future of the American workforce, we link here

For more editorial content on this subject:

CNN:  Fareed Zakaria, How to Innovate

Wall Street Journal

The Washington Post

Forbes

The Watertown Daily Times

USCIS launched the new website today –  here it is.

E-Verify Self Check is the first online E-Verify program offered directly to the U.S. workforce. E-Verify Self Check, a fast, simple, secure and free service, enables individuals to voluntarily check their own employment eligibility status. USCIS is releasing E-Verify Self Check in phases, with the first phase only accessible to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia. Click here to visit the E-Verify Self Check website and check your own employment eligibility status.

Here is a Fact Sheet for more information.  Let us know what you think.

Following through on a campaign promise, Florida Governor Rick Scott signed four executive orders minutes after being sworn in, including one that requires all state agencies to use E-Verify, making it the first state to mandate E-Verify participation in 2011.  Florida joins a list of 13 other states that have mandatory E-Verify laws or executive orders in place.

According to a press release  from the governor’s office:

Executive Order No. 11-02 requires state agencies to use the E-Verify system to verify employment eligibility of state employees and contractors.

• All state agencies under the direction of the Governor must use the E-Verify system to check employment eligibility of their current and prospective employees.
• Requires state agencies under the direction of the Governor to include in all state contracts a requirement that contractors utilize the E-Verify system to verify the employment eligibility of:
  • all persons employed during the contract term by the contractor to perform employment duties within Florida; and
  • all persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract with the state agency…

The Florida State Legislature, which convenes next week, is also expected to consider an Arizona-style immigration enforcement bill that would also require all employers in the state to use E-Verify. The bills are being drafted by Rep. Bill Snyder and Sen. Mike Bennett.  This is fast approaching the Arizona question again… Can the state trump the federal government on immigration requirements?

It is worth noting that, Rhode Island’s Governor, Lincoln Chafee, rescinded Rhode Island Executive Order 08-01 that required the state as well as contractors and vendors doing business with Rhode Island to register and use E-Verify for all new hires. Chafee called the use of E-Verify a “divisive issue.”

So, what does this mean going forward for Florida’s State Agencies and employers, in general? 

Prior to enrolling in E-Verify, you must undergo comprehensive I-9 training by skilled immigration counsel that maintains an active employer compliance practice so that your designated E-verify employees have a solid grounding in the law as it relates to the I-9 form and today’s complex issues concerning employment eligibility verification.  The most well intentioned employees make mistakes and, if you’re like most employers, 30-50% of your I-9 forms may have issues that put you at risk. Half of the companies audited by Immigration and Customs Enforcement (ICE) get fined $110,000 or more.

Employers must recognize that this can mean civil and criminal liability to both themselves and their employers for charging untrained and inexperienced employees with the employment verification process.

You’re probably thinking …this could never happen to me and my company…we’ve reviewed our I-9 forms, done a self-audit and put policies in place for the management of our employment verification program.  This thinking is understandable; however, untrained HR managers and assistants that try to correct or minimize their mistakes to save their jobs can lead to charges of document falsification, perjury and tampering. 

Plainly put, this complicated one-page, poorly designed I-9 form has a 70-page government instruction manual!  Performing a self-audit, with an untrained staff, can likely increase the possibility for penalties and fines.

Please have a look at our I-9 Employer Resource Center:  www.I-9Audits.com , contact our office to discuss your concerns and sign up to receive our news and information.

As previously reported last month in our blog post,  President Obama signed into law Public Law 111-230 on August 13, 2010. The law requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

In our blog post referenced in the above link, USCIS is starting to issue RFE’s to employers who are subject to the new public law fees.

If the employer is subject to P.L. 111-230, the employer should return the RFE along with a statement explaining why it is subject to the fee and include a check for the relevant amount (either $2,000 or $2,250 depending on the type of nonimmigrant petition). If the employer is not subject to P.L. 111-230, the employer may sign an attestation which states why the employer is not subject to the law. The attestation should be placed on the employer’s letterhead, be signed and dated by the employer, and should state:

“[Name of employer] has [number] employees in the United States, of whom fewer than [insert number] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

Employers should be careful to include only the number of employees in the USA and not the world-wide number of employees in the calculation. This number may differ from the “number of employees” question asked on Form I-129, which may include a world-wide employee figure.

For H-1B and L-1 petitions filed on or after August 14, 2010, we would advise that employers draft an addendum to the Form I-129 Data Collection Supplement, which explains why they are not subject to P.L. 111-230.  It has also been recommended that you indicate same on the H-1B cover letter whether or not the petition is subject to P.L. 111-230.

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H-1B/LCA Compliance for Employers

As an employer, are you maintaining best practices and complying with USCIS and DOL regulations with your H-1B program?

We assist our clients with:

• Providing tools to teach compliance to managers in field or remote offices;
• Public Access File retention;
• Practical guidelines for reducing paperwork;
• Practical guidelines for reducing substantive violations and lowering risks of penalties;
• On-site or web seminar training on proper procedures;
• Onsite Public Access File audit services
• Standards for self-audits

1) Prevailing Wage Determinations:   The Department of Labor (DOL) advised today that a prevailing wage determination (PWD) obtained for an H-1B case can be used for a PERM case (and vice versa) if it is still valid and for the same job opportunity.  The announcement was made in the AILA/DOL Stakeholder Telephone Conference of 6/22/10 that can be viewed on the AILA website.  This will be extremely useful and will eliminate the long wait time in obtaining a PWD for DOL National for a PERM case when all information in re the job and its requirements remain identical.

2)  Current H-1B Cap Count as of 6/18/2010:  22,900 cases have been received under the general H-1B cap.  9,700 cases have been received against the advanced US degree cap of 20,000.

3)  CBP Releases Port of Entry Contact information:   http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/

4)  iCERT now posts PERM Processing Times: http://icert.doleta.gov/#fragment-2

5)  Life Along the Mexico-US Border Photo Essay:  http://www.washingtonpost.com/wp-srv/world/interactives/mexicoborder/

6)  DHS Releases Fact Sheet on  Southwest Border “Next Steps”

7)  E-Verify no longer voluntary for Utah Employers:

We will cover these topics and many more in greater detail in our free July newsletter.  If you haven’t signed up to receive it, you can do so here

The importance of having a strategy and planning ahead for visas to the USA cannot be stressed enough – we have a more complex system and it just simply takes longer than other countries.

Under the Bush administration, Cuban nationals were not granted US visas. This article cites unfortunate timing issues that prevented the Cuban group Buena Vista Social Club from entering the USA in time for their 3 scheduled US concerts.

Plan ahead as best as you can and work with providers who will go the extra mile on your behalf and make it happen.

In a Press Release today, DHS Secretary Janet Napolitano, announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from nations participating in the Visa Waiver Program (VWP).

The elimination of the paper I-94W form enables travelers to provide basic biographical, travel and eligibility information automatically through ESTA prior to departure for the United States —reducing redundancy and enhancing the security of sensitive personal information, as CBP stores and protects all VWP data electronically on secure servers.

CBP recommends that travelers submit ESTA applications as soon as an applicant begins making travel plans. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for two years or until the applicant’s passport expires. To date, CBP has received more than 19 million ESTA applications from citizens of VWP countries—applications that will now automatically cover I-94W submission.

For more information about ESTA, please visit www.cbp.gov