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.

February 16, 2011, Brett Dreyer, Chief of the Worksite Enforcement, Unit of Homeland Security Investigations, verified on 2/16/2011 that ICE continues to focus its investigations both on businesses that were brought to their attention by tips and leads, and on those that work in areas of national security and critical infrastructure. Mr. Dreyer further confirmed: “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. The inspections will touch on employers of all sizes and in every state in the nation — no one industry is being targeted nor is any one industry immune from scrutiny.”

Confirmation has been publicized that NOI’s were indeed served throughout the USA on February 17^th.  The audits are expected to be completed within the next 2-3 months. We link here for more on this story.

This is a good time to review what you should do if you are served with a Notice of Inspection (NOI):

• Immediately contact Immigration Solutions and company management
• Employers are allowed by law 3 days notice to respond by producing the I-9 records of their active as well as terminated employees within a particular period of time

The NOI will be most probably be accompanied by a very invasive Document Subpoena that might ask for all of some of the below items:  

• A copy of your I-9 Policy and Procedures Statement or Manual
• I-9 forms for current employees hired after 11/6/1986
• I-9 forms for terminated employees within the required retention period
• Complete employee lists of current and terminated employees
• Quarterly Wage and hour reports
• Payroll Summaries
• SSA Mismatch correspondence
• E-Verify and/or SSNVS documents
• Business information such as:  Employer ID number, owner’s SSN/address, business license, etc.

We work with our clients to create compliant workforces, and now is the time to be proactive if you absolutely know that you have problems with your I-9 forms; and, by the way, most employers do.  We encourage you to be proactive and take action now before you pay the high price of being put in a position where your options have diminished.

We are happy to hear from you and are very flexible with our package of compliance services and solutions.  Our talented team is read to assist you with whatever you’d like to accomplish with your compliance programs.  Visit our I-9 Resource Center here.

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.

#1: The Job Description and Degree Requirement

The job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.  What is the definition of a specialty occupation?  A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its equivalent. For example, information technology, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

Small to medium-size companies are being asked to justify why the position requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, classified ads for the position, and educational information pertaining to existing or previous employees in the same position, why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience to 1 year of university level education (this requires an expert credential evaluation by a service that is authorized to evaluate work experience).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for your green-card sponsorship (permanent residency), it is essential that your degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which you will be filing your PERM labor certification and green-card case.

USCIS now requires very detailed job descriptions that contain the position summary, duties and responsibilities, as well as the percentage of time spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET and the OOH which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework and work with an immigration attorney that is well versed in handling H-1Bs as well as PERM labor certifications.

#2:  Plan Ahead and File Early

When should I start my case? Immigration Solutions accepts H-1B cap-subject cases well in advance of April 1st to avoid the rush that normally occurs when employers become aware of cap deadlines and when foreign workers obtain job offers that require cap subject visa numbers. Bottom line, cap-subject cases should be started ASAP.  We advise employers to assess their hiring needs for FY 2012 and contact their immigration attorney to discuss timing issues.

How long does it take to prepare an H-1B Case? We do not recommend waiting until the last minute because of the various government agencies that are involved in the process. With good front-end case strategy, consulting with an attorney that has a depth of experience with H-1Bs with and a streamlined case process – the many steps involved in preparing an H-1B requiring the cooperation of all parties, can go very smooth and an approvable petition can be filed with all necessary supporting documentation.  An approval requires that a case be prepared correctly from the start.  It is often not possible to reverse strategy after the case is filed.  Planning ahead is crucial to flush out any issues that need to be overcome, particularly when working with IT and healthcare consultants and staffing agencies that have 3^rd party jobsite issues.

In summary, the demand for H-1B visas, although not as high in this economy, have tougher documentation standards and Department of Labor delays sometimes for several weeks with employer EIN# verification issues. By understanding the issues involved in the H-1B process, one can take a proactive approach to assure that the needs of all parties are addressed early.

#3:  When the Occupation Requires a License

USCIS’ approval of an H-1B petition that requires a license, is not authorization for the employee to practice his or her profession without the required license. This is particularly prevalent when processing H-1Bs for teachers and healthcare professionals.  USCIS regulation provides that if an occupation requires a state or local license to fully perform the duties of the occupation, the foreign worker must have the license prior to the approval of the petition.

This can be a Catch 22….Some states will not issue a state license unless the individual worker presents evidence to the State Board that they are legally authorized to be employed in the USA. Some State Boards require the worker to establish to the State Board that they have been granted H-1B status as a prerequisite to issuing the license. For example, certain State Boards of Pharmacy will not issue a pharmacist license until the worker presents evidence of work authorization. Teachers and registered nurses have been unable to obtain licensure until they obtain social security numbers which cannot be achieved until one is authorized to work in the USA.

With the above being said, USCIS adjudicators have been instructed to approve H-1B petitions for a one-year period if a State or local license to engage in the profession is required, and the appropriate licensing authority will not provide such license to the worker without evidence that that they have been granted H-1B status. At the end of the one-year period, the employer is required to file another petition with a request for extension and also present evidence at that time that state licensure has been obtained.

As a condition to approving petitions involving state or local licensure, the worker must demonstrate that they have filed an application for the license according to the State or local rules and procedures, provide evidence that they are qualified to receive the license, and that all educational, training experience and other requirements are met, including healthcare certification, at the time of filing the petition. For instance, Physical Therapists must provide a letter or statement signed by an authorized state physical therapy licensing official in the state of intended employment, indicating that the PT is qualified to take the state’s written licensing examination for physical therapists and thereafter obtain state licensure.

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If you are not a client of our firm and would like to discuss H-1Bs as well as any other immigration matters, we invite you to contact us at info@immigrationsolution.net | telephone 562 612.3996 to set up a consutation.

USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000.  Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked.  USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

Extensions of stay and portability H-1B cases (transferring to a new employer) can still be filed and so can cases for H-1B exempt employers.

As of April 1, 2011, we can start filing new H-1B cases with USCIS to commence employment October 1, 2011.  This is a good time for employers to begin to assess their H-1B hiring reqirements for FY 2012 and plan in advance.

Contact our office should you wish to consult with us and retain us to handle your H-1B immigration cases.

We reference below what’s new with E-Verify for those of our readers who are enrolled in the system.

E-Verify Has Expanded Photo Matching!

E-Verify has launched a new U.S. Passport photo matching capability. Employers using E-Verify can now view photos to help confirm the validity of identity documents. Available documents include:

U.S. Passports and Passport Cards

• Permanent Resident Cards (Green Cards)
• Employment Authorization Documents

Visit here for more information about Photo Matching.

Did You Hear About the I E-Verify Seal?

Employers who use E-Verify can now prominently display the official I E-Verify™ seal at their workplace—on bulletin boards, doors or windows. E-Verify enrollees who would like a seal can send a request to uscis.verlogo@dhs.gov.

Designated Agents Get a New Name

The name “E-Verify Employer Agent” has replaced “Designated Agent” to refer to businesses that use E-Verify to confirm the employment eligibility of another company’s employees.

Puerto Rico Birth Certificate Guidance

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure, certified copies of birth certificates to U.S. citizens born in Puerto Rico. After Oct. 30, 2010, all certified copies of birth certificates issued prior to July 1, 2010, became invalid. This new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. See the USCIS Update for more information.

New on the E-Verify Website

Updated Manuals are now available

The latest E-Verify guidance can be easily downloaded or viewed online. E-Verify User Manuals, Quick Reference and Supplemental Guides for Employers, Federal Contractors, and E-Verify Employer Agents (formally Designated Agents) were all updated in September and are available on the Publications web page.

How Well is E-Verify Performing?

E-Verify recently updated the Statistics and Reports page on the web site. The updated statistics are based on E-Verify cases in Fiscal Year 2009 (October 2008 through September 2009).

History and Milestones

Check out the history of E-Verify—from the original legislation (1986 Immigration Reform and Control Act) to present-day major milestones. Visit the updated History and Milestones web page for more information.

E-Verify Outreach

E-Verify Offers Free Webinars!  Go to the E-Verify website and click on Sign Up for a Webinar for a complete schedule.

E-Verify Overview

• E-Verify for Existing Users
• E-Verify for Federal Contractors
• Form I-9, Employment Eligibility Verification

E-Verify gives live presentations and workshops, and participates in conferences and exhibits. If you would like a speaker for an event or conference, please e-mail us at E-Verify@dhs.gov or call 1-888-464-4218.

E-Verify in the Community

• Small, Minority, Women and Veterans Business Owners
  San Antonio, Texas                December 8, 2010
• 29th Annual Government Contract Management Conference
  Arlington, Virginia                    December 9-10, 2010
• The Agriculture Employer Forum
  Provo, Utah                             December 15, 2010
• The West Valley Chamber of Commerce
  Salt Lake City, Utah                December 16, 2010
• Human Resource Council of the Manufacturers Association of Central New York
  Syracuse, New York               December 21, 2010

Here’s the link to the new E-Verify Newsletter

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.

LONG BEACH, CA, October 22, 2010. Immigration Solutions, a leading full service consulting, immigration, and employer compliance organization, announces its new I-9 Employer Resource Center that is uniquely designed to assist businesses in developing and maintaining compliant employment practices.

Reputable industry leaders are being audited, as employer compliance becomes more complex and enforcement (investigations and audits) increase. In order to effectively deal with these issues and avoid the very severe consequences of fines and penalties for non-compliance, employers must take the time to develop a strategy and be prepared in advance with a Compliance Program.

Many companies struggle with determining who to turn to for their I-9 compliance needs. Immigration Solutions approaches its Employer Compliance practice with the same exceptional service level clients have experienced from their other practice areas. Their talented and experienced team offers onsite or offsite in-depth I-9 audits, compliance training, assistance with the development of training manuals and compliance policies and procedures, and on-call consulting services. They additionally assist their clients in responding to government Notices of Inspection and audit requests.

With pricing that is cost-efficient and tailored to the needs of their clients, Immigration Solutions is positioned to offer high touch services and solutions to their clients at affordable prices.

Websites: www.I-9Audits.com
www.immigrationsolution.net

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About Immigration Solutions

Immigration Solutions provides US and Canadian immigration services to individuals and employers throughout the USA and abroad. They specialize in business immigration and have a depth of experience in the IT, health care, arts & entertainment, and sports industries, amongst others. Their services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment. They additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with their clients to develop compliant immigration policies and procedures. They offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

Senate Dems Robert Menendez (NJ) and Patrick Leahy (VT) introduced the CIR Act of 2010 that proposes major  overhaul to the immigration system, making changes in employment and family-based programs with enhancements to I-9 (employment eligibility verification) employer obligations.  Most feel that this will not be the avenue by which CIR is accomplished, but that many of its ideas, including those int the CIR ASAP Bill that was introduced by Luis Gutierrez (D/IL) and the REPAIR proposal introduced by Senators Schumer (D-NY) and Lindsey Graham (R-SC) earlier this year, will all be considered when Congress decides to get serious about tackling immigration reform and actually start debating the issues.

The Bill does propose the creation of an Immigration Commission that would have authority to recommend yearly NIV and IV numerical limits.

The Bill proposes changes to the H-1B program by requiring employers to post the job opening on a new DOL website.  Employer with 50 or more employees would be prohibited from petitioning for additional H-1B workers if their workforce was comprised of more than 50% H-1B and L-1 workers, excluding those who are the beneficiaries of a pending or approved labor certification or employer-based immigrant petition.  Additionally, employers would be prohibited from placing H-1B workers at a 3rd party site, unless the worker was primarily supervised and controlled by the petitioner/employer.

DOL would be charged with additional authority to review LCA’s for fraud or misrepresentation and would have up to 14 days to certify an LCA (makes one wonder if we’d ever get a case out the door!)  with additional authority to investigate complaints against H-1B employers and to conduct employer H-1B compliance audits.  This is yet another reminder to employers to make sure that their Public Access Files are in order and that they are working with immigration attorneys who provide them with PAF files and overall compliance guidance and training.

Proposed changes to the L-1 Program would include requiring employers to offer L-1 employees insurance and other benefits on the same basis as that offered to US workers.  Increasing restrictions would be imposed on “new office” L-1 petitions and would require DHS to submit a report to Congress on L-1Blanket use.  On the positive side, the bill wold provide some relief for small employers seeking L-1A status for foreign nationals.  It would forbid adjudicators from using the small size of an L-1 employer as a negative factor in executive or managerial eligibility for L-1A status, but would increase DHS authority to investigate complaints against L-1 employers and impose new penalties upon employers who violate L-1 regs.

*** (Relief for Registered Nurses) *** — The Bill proposes to create a new H-2C temporary, nonimmigrant visa for occupations for which there is a shortage of American labor.  The initial H-2C visa would be valid for three years and renewed for three more years. With some exceptions, an H-2C visa could be revoked if the visa holder has been unemployed for more than 60 days.  After 4 years, an H-2C non-immigrant may file an application for adjustment of status, provided that he/she has been continuously employed, establishes progress toward civics and English proficiency, meets all criminal and other background checks and pays additional fines and fees.

There is a proposal to include a new H-1C program for lesser-skilled workers with job offers from US employers, and the creation of a premium processing program for administrative appeals of employment-based immigrant petition denials.

Relief for Undocumented Immigrants: Creates a provisional legal status, Lawful Prospective Immigrant (LPI), for undocumented immigrants who are present in the U.S. as of September 30, 2010, register with the government, have never committed a serious crime, and are otherwise admissible to the United States.  LPI status will be initially valid for four years, with the possibility of extensions.  LPI status confers work and travel authorization.  After six years in LPI/LPID status, an applicant may apply to become a lawful permanent resident, provided he or she continues to meet all eligibility requirements, including renewed biometrics and background and security checks, and also establishes basic citizenship and English skills, payment of all taxes, and compliance with Selective Service registration.

Employment-based Immigrant Petitions: The bill would recapture unused employment and family-based visa numbers from 1992 to 2007, and implement for future years  that unusued immigrant visa numbers roll over each fiscal year including the base amount of 140,000 –  plus numbers from 1992-2007 – and any unusued numbers from the previous year.  Those with approved visa petitions who are subject to wait times would be eligible to apply for AOS upon payment of an additional $500 filing fee and would be entitled to 3-year EADs and travel documents.  Those with pending immigrant visa petitions would be eligible to apply for AOS at the discretion of DHS.

We link to a complete summary of the CIR Reform Act from Immigration Policy Center.

Immigration Solutions will continue to update and report on any and all CIR issues as they arise.

1. Want to stay in touch?  The InFOCUS Immigration Solutions August newsletter is available for your viewing here.
2. We link to an interesting letter to President Obama on Immigration Reform that says it all very well
3. USCIS to permit EAD (Employment Authorization Documents) to be expedited through the Nebraska Service Center (NSC) if they have been p ending for more than 60 days under particular circumstances.  Please contact our office for more information on this should you require assistance with expediting your case.
4. Department of State announces that they will phase in the implementation of an online, electronic Immigrant Visa form, the DS-260 that will eventually replace the DS-230 form. Federal Register 75 FR 45475.
5. Just yesterday, the US Senate passed a border security spending bill containing a provision that will be paid for by increasing fees for employers that have a large H-1B or L-1 foreign worker presence in their workforce. Specifically, the bill would increase total filing and fraud prevention fees by an incredible $2000 or more for petitioners with a U.S. workforce of more than 50 percent H-1B or L-1 nonimmigrants. The provision would be applicable to employers with 50 or more employees in the United States. The bill would also provide $600 million in emergency funds to increase security along our borders with Mexico by hiring more than new 1,000 border patrol and immigration enforcement officers, and increasing unmanned drone surveillance operations in the region.  For more on this
6. The USCIS will start receiving email inquiries on I-90 and N-400 forms if the wait time has exceeded the designated processing times.
7. The Department of Labor (DOL) bans the Asian Journal from the H-1B Program and agrees to pay $516, 500 in back pay to 32 employees plus a $40,000 penalty.

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Immigration Solutions has thousands of worldwide subscribers interested in our news and services who are visiting our website and Blog daily.  We invite you to take advantage of this additional targeted exposure and strongly consider advertising your product or service with us.  Contact us through our website or give us a call to discuss your needs and advertising requirements.  We’ll walk you through a very affordable process that will give you the extra edge that you’re looking for.