As USCIS continues its H-1B enforcement efforts, the Department of Labor announced last week its latest case – a computer consulting company in New Jersey – that was fined $638,449 in back wages and interest and $126,778 in civil penalties.  The company was also barred form using the H-1B program for one year.  DOL additionally reported in its announcement that their investigations since 2005 have resulted in $5.6 million in back wages and $300,000 in civil monetary penalties in New Jersey alone.

The most common violations include:

1. Failing to pay the required wage on the H-1B petition
2. Failing to post the Internal Job Posting Notice of the filing of a labor condition application at every worksite where H-1B workers are employed, and
3. Failing to pay nonimmigrant workers the required wage for all non-productive time caused by conditions related to employment.  This includes lack of assigned work between projects and non-employment because of a lack of a permit or license or studying for a license exam.

Immigration Solutions provides comprehensive assistance to our clients in developing and maintaining best practices necessary to assure compliance with USCIS and Department of Labor regulations.  We have extensive knowledge of the H-1B and LCA regulations and provide our clients with the tools necessary to run a successful H-1B program, including the preparation of Public Access Files and the set-up and maintenance of LCA tracking systems.

It is common knowledge that the U.S. government has been performing widespread investigations and audits of employers cracking down on the employment of undocumented workers.  Immigration and Customs Enforcement (“ICE”) recently reported record-breaking figures citing the highest deportation numbers and the most employer audits in our nation’s history.

Because of this, employer compliance is becoming more complex and enforcement activities are increasing at a record rate. The days of thinking that immigration enforcement is only targeting industries that employ a diverse workforce, such as health care, hospitality, restaurant, garment and the construction business, are long gone. Every employer must be aware of immigration laws as they relate to the processing and management of their I-9 forms and other compliance programs.  Many audits have resulted in fines for well known and respectable employers, large organizations and those that employ foreign workers, as well as small businesses that unintentionally filled out I-9 forms incorrectly.  Document mistakes – missing signatures, dates, over-documentation problems on I-9’s, have resulted in fines from $110 to $1,100 per mistake.

A recent examples of an I-9 document violation is a Colorado restaurant franchise that was fined $32K after an ICE inspection – not for hiring any illegal workers, but for I-9 document errors.

Chipotle Restaurant chain in Minnesota has recently been in the news for hiring illegal employees.  Pursuant to an ICE I-9 audit, Chipotle was forced to terminate some 50 workers.  There appears to be widespread I-9 restaurant investigations taking place in Minnesota.  Other restaurant chains in the area such as McDonald’s and Sizzler are concerned and have begun to proactively look into E-verify, the Internet-based system operated by USCIS in partnership with the Social Security Administration (SSA) that is free to employers and available in all 50 states.

The key to I-9 compliance for most organizations starts with a thorough self-examination of existing paper I-9’s, E-Verify submissions (if applicable), standard operating procedures, and past practices.   It is recommended that you consult with a licensed immigration or employment attorney who is knowledgeable in the practice of  employer compliance, specifically I-9 audits, training and policy development that can possibly save you thousands of dollars in fines and penalties.

Visit our new I-9 Employer Resource Center for helpful information and for our services and solutions.

USCIS has posted an Executive Summary of a listening session it hosted on November 2, 2010 regarding the Form I-9. The summary presents stakeholder comments, suggestions and concerns for how to improve the form itself and the overall I-9 process. There were many worthwhile suggestions that we hope USCIS will strongly consider.

In this climate of excessive worksite enforcement, we note that there was particular emphasis on USCIS providing better, more clear I-9 employer tools and support. Employers were also confused as to how to correct the I-9 form and who corrects what (which is covered in audits and training performed by qualified attorneys skilled in the area of employer compliance).

Should you wish to discuss your compliance concerns and issues, please contact our office. We also have an excellent employer compliance resource center that you can access at www.I-9Audits.com.

USCIS has released FAQs on PL 111-230 that requires certain employers to pay additional fees for L-1 and H-1B initial and change of employer filings if the employer has 50 or more US employees with at least 50% of whom are in H-1B, L-1A or L-1B status.

The additional fee for an H-1Bs is $2,000 and $2,250 for L-1A and L-1B employees.  The fee does not apply to extension requests filed by the same employer for the same employee.

The term “employer” for purposes of implementing PL 111-230 is found at 8 CFR 214.2(h)(4)(ii) and states…A person firm or corporation, contractor or other association or organization in the USA which:

1. engages a person to work within the USA
2. has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee; and
3. has an Internal Revenue Service Tax ID #

Note that the employer definition above does not extend or authorize its application beyond PL 1111-230 and the H-1B rules and regulations.  Additionally, all employees, whether full-time or part-time, will count towards the  calculation of whether an employer is subject to the new fee.  This fee does not apply to dependents in H-4 and L-2 classification.

We link to the FAQs

Should you have any questions concerning this or wish to retain our office or request a proposal, please contact us.

Employers can no longer afford to think that because they don’t hire foreign nationals, they don’t have any I-9 issues or need to comply with I-9 immigration regulations. The I-9 form is required documentation for all US citizens and non-citizens …every single employee must fill out an I-9 Form.

In our employer compliance audit practice, we find that every employer has I-9 violations, from minor clerical errors and unintentional mistakes, to document discrimination issues due to lack of training on I-9 regulations and document requirements.

Immigration attorneys, HR professionals, auditing firms and other professionals, if skilled in the practice area of employer compliance audits, could qualify as a viable vendor in handling I-9 audits, training and policy development.

There are a lot of do and don’t lists, blog postings, podcasts, free seminars and more on this topic which is why you should most particularly pay close attention as to whether or not the provider has a broad understanding of employer immigration compliance law and policy.  Discuss with them their previous and current experience, can they answer your questions, what services do they provide, what solutions are they proposing to suit your specific needs, and what type of follow-up consultation do they provide post-I-9 project completion.

Immigration Solutions regularly represents clients from all industries in developing effective I-9 policies and compliance programs. We assist our clients proactively in establishing and maintaining effective corporate policies and procedures, before one of the five government agencies involved with enforcement knocks on your door.

Not only do several immigration fees increase as of 11/23/2010, but a revised I-129 (Petition for Nonimmigrant Worker) will make its debut on 11/23/2010 as well, and will become mandatory beginning December 22nd.  USCIS will accept previous editions of the form for 30 days or until December 21, 2010.

The new I-129 petition has been months in the making, and is the first major overhaul of the petition in years. When it is implemented, employers will see new questions and compliance issues, particularly for H-1B and L-1 filings.  The petition is used for temporary workers in a variety of nonimmigrant visa classifications.

The revised form will be available on 11/23/2010 on www.uscis.gov

Our November Special Edition Newsletter on Employer Compliance is now available.  We reference what employers need to be aware of in light of the results of the mid-term elections, the increase in enforcement that is predicted to continue and how best to protect  yourself in this business climate.

Check out our new I-9 website and take the free Survey.

There’s a big shift that’s taken place with immigration policy with the GOP at the helm in the House; namely John Boehner (R-Ohio) and extremist Steve King (R-Iowa), who will likely chair the House Subcommittee on Immigration.  It has been speculated, in the new Congress, that Lamar Smith (R-TX) the current Ranking Member of the House Judiciary Committee will be named chair of that committee.

House Republications have already said that they will focus on border security and immigration enforcement over any future immigration reform. King favors changes to birthright citizenship to keep US-born children of illegal immigrants from receiving citizenship and argues more states should pass immigration crackdowns like Arizona’s SB 1070.  He has also pushed for more border enforcement and an electrified fence along the border to keep illegal immigrants out and has stated, “We do that with livestock all the time”.  Boehner will set a good deal of the agenda, and is likely to follow some of the plans mentioned in the Pledge to America that was released in September.

This most certainly will be a challenging shift from how current Speaker Nancy Pelosi (D-CA), and how other leading Democrats handled immigration issues.  Particularly, we can expect proposals that increase penalties for immigration-related crimes and make the removal of immigrants with criminal convictions easier.  Add to this the fact that both Smith and King have supported proposals that authorize state and local law enforcement officers to enforce immigration laws; and lastly, it’s been said that we can expect increased scrutiny of DHS enforcement practices by Congress and increases in funding for both border and interior enforcement.

For more on this, we link to the AILA Advocacy article released today.

Through a recently leaked memorandum to the public, it was revealed that  Immigration Services fraud prevention officers have been urged to check social networking websites such as MySpace, Facebook, Classmates, amongst others, when investigating cases.

The memo is directed at officers of USCIS’ Fraud Detection and National Security Directorate (FDNS), a unit of the agency that investigates pending and approved immigration petitions to verify the information in those petitions.

The memo suggests that its agents attempt to “friend” citizenship petitioners and their beneficiaries on social networks in the hope that these users allow agents to monitor their activities for evidence of suspected fraud, including evidence that their relationships might not live up to the USCIS’ standard of a legitimate marriage.

The presumptions in the memorandum concerning those that participate in social networking websites are quite disconcerting.  Additionally, there is no mention whether or not DHS agents are required to reveal their government affiliation or their real name during the friend request while monitoring activities, leaving open the possibility that agents could actively deceive online users wile monitoring the websites.

A word to the wise should be sufficient. We urge those who are going through the immigration process to use discretion in what they share about their particular situations in chat rooms and social networking websites.

Immigration officials, in an effort to deter fraud, will unveil today a new naturalization certificate for people who become U.S. citizens.

The new certificates, used to obtain passports and other legal documents, come after USCIS unveiled a new green card — the ID card for immigrants with permanent residency status — this year that had improved security features to prevent forgery and tampering.

The old Naturalization Certificates were filled in manually and the person’s photograph was just attached to it. The new computerized certificates will have all that information embedded in the document and also will have ink patterns that are harder to duplicate.

It’s important to note that  previously issued certificates remain valid.

If you haven’t seen the new USCIS Naturalization Resource Center, take a look.  It’s very informative, easy to navigate and an excellelnt addition to their website.