This is an extremely informative Q&A session between AILA and  USCIS that addresses the following major  topics:

1)  Excessive documentation requests for L-1 RFEs including L-1Bs involving placements at 3rd party sites

2)  H-1B Cap Exempt employers

3)  Right of Counsel for H-1B Site Visits…..and more

To highlight a few USCIS responses:

1) AILA provided examples to USCIS of explaining its RFE requests by providing examples (rather than endless lists of mandatory documents) of how to respond

2)  Re Counting periods of time abroad for L-1 Eligibility:  USCIS stated,  “Contrary to the AFM, precedent decisions and long practice, USCIS now states that only time in the US in L status, rather than any ‘authorized periods of stay in the US for the foreign employer’, does not interrupt the prior year of employment.

3)  Right to Counsel during the course of audits and site visits & training for Investigative Officers:

a.  “USCIS is in the process of amending several forms (Form I-129 instructions) and receipt notices to advise that USCIS may conduct compliance site inspections at any time pre or post adjusication.  There are currently no plans to provide advance notice of a site inspection conducted under the ASVVP”.

b.  Advance notice is provided by FDNS officers when conducting site visits/administrative inquiries on cases containing elements of suspeced fraud unless the officer believes that advance notice would jeopardize or hamper the site visit.  FDNS officers also provide notice to attorneys of record when conducting site visits under the Benefit Fraud Assessment and Compliance Program.

c.  Are petitioners/beneficiaries informed of their right to call their attorney and have the attorney present before questioning commences?  “Participation in an ASVVP compliance site inspection/any USCIS site visit, is volunary”.

d.  “A petitioner/beneficiary/other persons will be allowed to contact their counsel if they are immediately available (in person or by phone), however, such contact should not unduly delay the process or entail unusual accommodations in which case the site inspection or site visit may be terminated”.

e.  Site visits will not be rescheduled if an attorney cannot be present.  If the employer’s attorney is not available, the Inspector will note this in their report.  The report will be reviewed for follow-up action, if appropriate.

4)  Site Visit Officer Training:  “Training is provided to site inspectors and immigration officers during their basic training after their entry on duty.  The inspectors collect and report information which is then analyzed by immigration officers who do have appropriate immigration law training.”

Other topics in this report covered termination of empoyment authorization documents, I-130 denials that are appealed, Civil Surgeons training and monitoring, etc.   Well worth the read through.

We link to the Q&A document

The House of Raeford Farms must pay a $1.5 Million fine and overhaul its hiring practices under an agreement that will allow a subsidiary to avoid prosecution on federal immigration charges.

The deal will also let two indicted managers at the poultry company’s Greenville, SC plant avoid criminal records, provided they enter a probationary program.

The settlement signed by federal prosecutors and company officials just hours before the case was set for trial Tuesday, gives the employer’s subsidiary, Columbia Farms, an opportunity to keep its record clean.  It likely ends a legal clash that could have cost the company millions of dollars in federal poultry contracts. Last year, Columbia Farms was charged with intentionally hiring illegal immigrants.

Under the settlement, Immigration will dismiss charges against the company if it improves its hiring practices over the next 2 years and submits to federal monitoring at its 8 plants in the Carolinas and Louisiana.  For more on this story

It has been reported that some 20,000 more unannounced employer site visits will be taking place over the next few months by FDNS, but this time it will be to employers who have filed H-1B extensions to determine if there is ongoing compliance by the employer.

It’s been asked, do they have the legal right to do this – just show up and demand to speak with a company’s representative or executive officer?  Yes, they do, although it hasn’t been acted upon to the extent we are now observing until your $500 Fraud Detection and Prevention government filing fee created the revenue to employ some 6,500 FDNS agents.  Up until now, USCIS or DOL agents have always been in a position to do onsite employer visits when they thought necessary – but it’s been rarely acted upon.  Presently, you can add ICE and FDNS to this group – because we’re in a hunt ‘em down, enforcement climate – and it’s the employers who are being targeted.

So, how does an employer handle this?  We don’t recommend that you wait to ask this question and to get your documentation organized when the agent comes knocking.  This is serious business now, and they are not just targeting the small to medium-size employer or the employer who has financial issues and can’t respond to requests to prove the ability to pay the offered wage to the employee.

Therefore, it is recommended that you discuss this with your immigration counsel now.  If you don’t have a representative, we are available to walk you through a program that will not only assist you in organizing your Public Access information and files, but we will give you the tools to prepare the company representative that will handle the agent site visit and to prepare them for the questions that will be asked, what documentation should be organized now and beeasily accessible to present to the agent when requested – and overall, how to successfully respond to a government site visit at your place of employment.

A memo by Marcy M. Forman, Director, Office of Investigations at ICE, for Assistant Director, Deputy Assistant Directors and Special Agents in Charge, outlines ICE’s new Worksite Enforcement Strategy.

We additionally link to an accompanying ICE Fact Sheet and an Overview of Worksite Enforcement.

The new director of U.S. Citizenship and Immigration Services said today he wants to emphasize public engagement, transparency and information technology modernization of the immigration agency during his term.

To meet those goals, Alejandro Mayorkas said he has created a new Office of Public Engagement and is debuting a new, interactive Web site Sept. 22 that will allow for public feedback on agency policy and proposals. The updated Web site also will allow for greater ease of use and more access to information about pending requests and applications.

USCIS’ involvement with community stakeholders “should be more of a collaborative effort, engaged and interactive,” Mayorkas said. “We want to have the community involved at a level where we can understand what we are doing well — and what we are doing wrong.”

Another high priority is moving forward on implementing the next stages of the USCIS’ information technology transformation project, which will digitize the agency’s paper-based records systems, Mayorkas said. The project was started in 2005 and is expected to cost more than $500 million.

Mayorkas, a Cuban immigrant, was sworn in Aug. 24 to head the nation’s immigration and naturalization systems. He previously served as U.S. Attorney for the Central District of California and was a partner at the O’Melveny and Myers law firm.

The date is just about upon us, subject to the US District Court’s ruling on US Chamber of Commerce v. Napolitano, in which a coalition of business groups is suing the government to enjoin implementing a regulation that would require certain federal contractors and their subcontractors to use E-Verify.  The Judge is expected to issue his ruling in the case in approximately 1 week.

So, what will be expected if these requirements are implemented?  Federal contracts will begin to use new language requiring the use of E-Verify to verify the employment eligibility of all new hires, as well as existing employees who work on the federal contract.  This will apply to contractors with a performance period longer than 120 days and a value over $100,000.  Service or construction subcontracts of a covered contract would also be required to include the E-Verify clause, if the value of the subcontract is over $3,000.

The Senate approved an amendment to the FY 2010 DHS Appropriations Bill that codifies a federal contractor’s obligation to use E-Verify, but without the above-mentioned parameters and exemptions.  If the amendment becomes law, it would limit DHS’ ability to implement the federal contractor E-Verify rule as it now exists.  Both chambers of Congress are scheduled to meet in September to agree on a final package.  We are not sure if the E-Verify amendment will be included or not at this time.

Immigration Solutions will continue to monitor the FAR developments. If you have any questions about this or any other compliance issues, please contact us for more information at info@immigrationsolution.net or 1 562.612.3996.  Here is a link to our compliance services and solutions.

In a Wall Street Journal article from August 18th, the new ICE Chief, John Morton, said that the agency is set to increase the number of companies it will audit and systematically impose fines on violators. Violations could also lead to criminal charges, he said.

On July 1, Homeland Security Secretary Janet Napolitano announced an audit of employers to verify whether their employees were eligible to work.  Mr. Morton said that 654 companies are currently being audited and that many more employers will be notified soon that they also will be under scrutiny by the government.

“You are going to see audits regularly and on a larger scale,” Mr. Morton said during a two-day visit to southern California, his first since being appointed four months ago. “You will see the resuscitation of…civil fines.”

If you have not addressed your I-9 issues, we would strongly urge you to do so.  Our Employer Compliance Unit is up to speed on the law, can develop a compliance program that is tailored to your needs and your industry; we can perform onsite or offsite audits and training and can recommend electronic I-9 compliance and reporting systems with optional E-Verify interface if you’re ready to go paperless.

We link to our solutions and services.

Shipley Do-Nut Flour and Supply Company Inc. was sentenced Friday to be under court supervision for a period of three years, pay a criminal fine of $250,000 and forfeit $1.334 million to U.S. Immigration and Customs Enforcement (ICE) for harboring illegal aliens. ICE Assistant Secretary John Morton and U.S. Attorney Tim Johnson made the announcement.

We link to the News Release

USCIS has received significant funding for a substantially increased volume of random site visits to employer locations.  Over the coming year, many thousands more employers will have USCIS knocking on their doors.

The FDNS (Fraud Detection and National Security Unit) of USCIS is expanding its manpower and its site visits to employers that hire foreign nationals.  Sometimes the employer is called in advance – and sometimes they are unannounced visits.  Also, many of these site visits can occur after the petition is approved.

FDNS visits are to verify the existence of the employer, discuss the information that the employer has provided to USCIS in their petition(s) and whether the foreign national(s) are working in compliance with the terms of their admission to the USA.  This information can also be used to determine whether or not a petition will be approved.  Typically, the FDNS officer will wish to speak with the HR representative, may want to also speak with the sponsored worker; the officer could have a copy of the petition and will endeavor to verify the information contained in the petition.

What’s the “take away” on this for employers:  It is important that you contact your designated immigration professional should you receive notification of a site visit… AND… make sure that you are working with well-informed immigration counsel that have experience in employer compliance issues.  Immigration Solutions does, and we link to our Employer Compliance page on our website.

We link to one employer’s experience (as posted on AILA Infonet).

In an effort to keep you updated on E-Verify developments, we thought our readership would find this information useful in terms of evaluating whether or not E-Verify would be a workable tool for you.  Please refer to: http://www.docstoc.com/docs/6774576/E-Verify-Update.

If you haven’t had a listen to our Compliance Podcast, you can access it here, along with a list of our compliance services and solutions here.