By Thomas J. Joy, Esq.

What will your company do if:

• The government notifies your company that it is to produce all of its I-9 forms and related documents for audit?
• The government notifies your company that it is to produce all of its H-1B public access files and related documents for audit?
• Your company receives a Social Security No-Match Letter?
• Your company is merging with or acquiring another company?

There is no need for panic if you have consulted with experienced legal counsel which has resulted in a strategy for responding to these events.  It is more important than ever to have such a strategy in place. 

Increased government investigations and enforcement are driven by several factors.  A poor economy resulting in layoffs in the labor market always produces increased investigations and enforcement to protect the American labor market from the adverse effects of foreign labor.  Political pressure for more enforcement always increases in a poor economy.  The resulting press leads to demands from the public for increased enforcement against illegal immigration.  Finally, in an election year all politicians want to prove to the voters how tough they are on illegal immigration and protecting jobs for Americans. 

I-9 Compliance:  Since 1986 the law has required that all new employees must present documents that prove their identification and right to work in the United States, and the company and the employee must complete a Form I-9.  Paperwork violations (mistakes or failure to complete the I-9) can very quickly escalate to fines of several thousands of dollars.  The fines for knowingly hiring or continuing to employ unauthorized workers are more severe.  Finally, a pattern or practice of knowingly hiring or continuing to employ unauthorized workers can lead to criminal charges.  In attempting to comply with the I-9 laws, the employer must guard against violating the anti-discrimination laws which could result in fines and back-pay. 

H-1B Compliance:  Employers of H-1B professional workers are required to prepare and post an LCA (Labor Condition Application) regarding prevailing wages, etc.  In addition, such employers are required to keep a public access file containing actual and prevailing wage information, etc.  Failure to do so can result in civil monetary penalties, back wages and being prevented from using the H-1B program for at least 1 year. 

Social Security No-Match Letters:  A Social Security No-Match Letter is a notice that the records of the Social Security office do not match with the information being reported by the employer to Social Security.  While the letter states that the letter, by itself, is not a basis for the employer to take any adverse action against the employee, the immigration enforcement authorities take the position that a failure to reasonably follow up could constitute constructive knowledge of an employee’s unauthorized status.  Handling such letters can be a very delicate situation.

Mergers and Acquisition Compliance:  Merger and acquisition transactions give rise to significant compliance issues for the acquiring or successor company.  In addition, the immigration status of the acquired employees may be affected by the transaction. 

E-Verify:  E-Verify is an Internet-based system coordinated by the immigration and social security authorities which allows for electronic verification of the employment authorization of new employees.  Subject to some exceptions, it is still voluntary.  Federal contractors must use the system as must employers of certain F-1 students extending their optional practical training.  In addition, a growing number of states are requiring E-Verify. 

As one can see from the preceding material, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing.  In order to effectively deal with these issues and avoid the very severe consequences for noncompliance, employers must develop a strategy and be prepared.  The most effective way to prepare is to develop a comprehensive compliance program customized to the employer’s specific needs.

Immigration Compliance Group provides telephonic and onsite I-9 training, consulting and document auditing, as well as employer compliance education and comprehensive program development. If you would like more information from us on this, please do not hesitate to contact us directly. 

• Check out our new employer compliance consulting services here, with the debut of our new Compliance web page coming in mid-August.
  
  
• And read one of our past articles on Employer Compliance

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3. Senate Votes to Quash HIV Immigration Ban

To mention some good news for a change -- the Senate has just voted to pass the PEPFAR bill.  The President’s Emergency Plan for AIDS Relief bill was voted to pass with an 80-16 vote, and will repeal a 20-year policy banning HIV-positive immigrants and nonimmigrants from entering the U.S.  There are only 12 countries worldwide that have an anti-HIV/AIDS policy.

With the current immigration law, public health experts at the Health and Human Services Department make the decision on whether or not to grant a person with a communicable disease entrance into the United States.  This applies to any disease except HIV/AIDS, which is the only medical condition that has standard inadmissibility policy behind it.

Therefore, HIV-positive individuals are NOT eligible to become permanent residents.  This also applies to legal immigrants who become infected with HIV after arriving in the U.S.

Senators John Kerry (D-MA) and Gordon Smith (R-OR) spearheaded the effort to include the HIV immigration and travel ban as a provision to the PEPFAR bill.  In addition, the U.S. will commit $48 billion over the next five years to help foreign countries combat HIV/AIDS, malaria, and tuberculosis.

Senator Biden, who managed the bill, said that the bill would probably avoid a conference with the House and be sent to the President’s desk.

7/31/08: AILA reports that while this legislation rids the statute of unfair discrimination against foreign nationals with HIV, it does not repeal the ground of inadmissibility for those that are HIV positive. INA section 212(a)(1)(A)(i) renders inadmissible any individual "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance." Until HIV is taken off the list by the Department of Health and Human Services, HIV continues to be listed as a communicable disease of public health significance under 42 C.F.R. Section 34.2(b)(4) and HIV positive foreign nationals continue to remain inadmissible to the U.S. This legislation has not changed the requirements for the waiver of inadmissibility.

To read more details of the bill:
Read this from the United States Senate

4. H-2B Visa Cap Reached for First Half of FY 2009

U.S. Citizenship and Immigration Services (USCIS) received the maximum number of petitions to reach the mandated H-2B cap for the first half of fiscal year 2009 (FY2009).

USCIS is notifying the public that July 29, 2008 was the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. The "final receipt date" is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2009.

USCIS will reject petitions for new H-2B workers seeking employment for start dates prior to April 1, 2009 that arrive after July 29, 2008.

USCIS will apply a computer-generated random selection process to all the petitions which are subject to the cap and were received on July 29, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

For more information on the H-2B Visa Cap being met:
Read this article from USCIS 

5. DHS Pursing Enhanced Driver’s Licenses

The Department of Homeland Security is pursuing the development of alternative documents to meet Western Hemisphere Travel Initiative implementation requirements at land or sea ports of entry.  DHS also wants to encourage states to enhance their driver’s licenses and identification documents to satisfy the WHTI requirements and the changes in the international land and sea travel document procedures that began on January 31, 2008. 

DHS believes that ‘enhanced’ drivers licenses provide travelers with a low cost and convenient alternative for border crossing purposes. 

For more information on the enhanced driver licenses:
Read the fact sheet from the Canadian Border Patrol

6. U.S. Passport Card is Now in Production

The Department of State has begun production of the U.S. Passport Card, which began on July 14.  With a reported 350,000 applications received and adjudicated for the new U.S. Passport Card, customers who submitted an application prior to production of the cards will receive their Passport Card between now and early September.

The passport card will ease the entry and expediting process at U.S. land and sea ports-of-entry when arriving from Canada, Mexico, the Caribbean and Bermuda.  The card can NOT be used to travel by air.  Other than that, it carries all the privileges the U.S. passport book does, and is received in the same standards.

For more information and how to apply for the new U.S. Passport Card:
Read this information from the Department of State

7. DOL Publishes Proposed Revisions to Labor Condition Application

The U.S. Department of Labor (DOL) published a notice in the Federal Register announcing changes to a number of DOL forms, including the ETA Form 9035 and the Labor Condition Application for Nonimmigrant Workers (LCA).  Employers are mandated to obtain a certified LCA from DOL prior to submitting petitions on behalf of E-3, H-1B1 and H-1B nonimmigrants.  DOL will be accepting comments on the proposed LCA through August 25, 2008.

The newly proposed LCA is very similar to the information collected on the ETA Form 9089, the Application for Permanent Labor Certification.  The application includes new questions about whether the LCA is for new employment, continued employment or a change in employment.  These questions are also similar to the questions on the Form I-129 submitted to the USCIS in connection with H-1B; H-1B1, and E-3 applications.  The proposed LCA also includes a new section designed for entering attorney or agent information.

DOL is expected to begin implementation of the new LCA on January 1, 2009 along with the revised ETA Form 9089.  DOL has also stated that it will be conducting a more extensive review of LCAs and as a result, LCA processing times could increase up to the regulatory maximum of seven working days following implementation of the new LCA. 

For more information on the proposed revisions to the LCA:
Read this article from the Department of Labor

8. New DS-160 Application Now Available

The new DS-160, Nonimmigrant Visa Electronic Application is now available, and is a comprehensive online application form that will be used to collect information from persons seeking a nonimmigrant visa.  The application will be submitted electronically to the State Department through the Internet. Consular Officers will use the information in the DS-160 to process the application, and in combination with a personal interview – will determine an applicant’s eligibility for a nonimmigrant visa.

For more information on the DS-160
Read this article from the State Department

9.Controversial Exhibit on Immigration opens at Chicago Museum

Dule Pinzon, a Mexican artist, was aiming to depict real immigrant workers in their everyday jobs.  But he also wanted to show them as super heroes who work grueling hours to make a better life for their families.  This is the idea linked to the immigrant experience in the U.S., one that now compliments the halls of the National Museum of Mexican Art in Chicago.

The collection is designed to challenge the U.S. immigration policies and call attention to the poor attempts of immigration reform, which have littered newspaper headlines for the past two years. 

The exhibit features about 100 paintings, photographs, sculptures, quilts and artifacts that all describe the immigrant experience.

Among the pieces, several of them criticize DHS, particularly the immigration policies such as fingerprinting foreigners at the airport.  Another painting features three women from different countries and their faces are comprised of fingerprints.

Another piece shows a woman that completes menial tasks in outdoor landscapes – where she vacuums the border at San Diego and Tijuana, Mexico. 

For more information on the controversial exhibit
Read this article from the NY Daily News

10. In the News...

The Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law oversaw a hearing for the Markup of H.R. 5882, to recapture employment-based immigrant visas lost to bureaucratic delays and to prevent loss of family- and employment-based immigrant visas in the future; and H.R. 5924, the "Emergency Nursing Supply Relief Act". More on this and our analysis in Immigration Compliance Group 8/13/08 Town Hall Meeting.

Canada is seeking to lure dissatisfied highly skilled immigrants, and take advantage of the ‘stall’ in the U.S. Immigration system.

“Can America Solve its Problems?”

A new report released by the Center for Immigration Studies (CIS) on July 30th claims that stepped-up enforcement measures account for much of the recent decline in the undocumented immigrant population.

Last week, Missouri Governor Matt Blunt signed a bill that his office called "some of the strongest legislation in the country to fight illegal immigration."

To remain in compliance with federal J-1 program regulations, an AILF representative is required to visit host companies with fewer than 25 employees or less than $3 million in annual revenue, prior to approval.

Obama on Immigration: "No, no, no, no. I think that, if they're illegal, then they should not be able to work in this country. That is part of the principle of comprehensive reform -- that we're going to crack down on employers who are hiring them and taking advantage of them.”

McCain on Immigration: "I think some of the rhetoric that many Hispanics hear about illegal immigration makes some of them believe that we are not in favor of or seek the support of Hispanic citizens in this country." ~ on the attitude towards immigrants in this country from the Spanish Language Republican Debate in December.