By: Kathleen Campbell Walker, Harry Gee, Jr., and Harry J. Joe
October 21, 2011
October 11 - USCIS is following up as to Startup America
initiative of the White House to celebrate, inspire, and
accelerate high-growth entrepreneurship throughout the
nation. USCIS is:
 Conducting a review of the EB-5 process
 Working with business analysts to enhance the EB-5
adjudication process
 Implementing direct access for EB-5 Regional Center
applicants to reach adjudicators quickly; and
 Launching new specialized training modules for USCIS
officers on the EB-2 visa classification and L-1B
nonimmigrant intra-company transferees.
Sole Shareholders/Employees and the H-1B category – The H-1B
category requires the establishment of an employer/employee
relationship for H-1B beneficiaries. A USCIS memorandum had
drawn into question further the ability of any H-1B employer
“controlled” by the beneficiary as being able to obtain an H-1B
petition approval, because of the difficulty in meeting the
required employer/employee relationship. The clarification
provided by USCIS confirms that there must be a right to control
established by the petitioner over the employment of the H-1B
beneficiary. USCIS further notes, however, that "if the petitioner
provides evidence that there is a separate Board of Directors
which has the ability to hire, fire, pay, supervise, or otherwise
control the beneficiary, the petitioner may be able to establish
an employer-employee relationship with the beneficiary."
EB-2 Immigrant Entrepreneurs and the National Interest Waiver –
The EB-2 immigrant visa category may be used by foreign
nationals with exceptional ability to avoid the normal permanent
labor certification process of the Department of Labor (DOL).
This option is referred to as Schedule A, Group II precertification.
The USCIS clarification provided, however, focuses on the
national interest waiver option of the labor certification available
in the EB-2 immigrant visa category for those with qualifying
exceptional ability. The main benefit of the clarification provided
may be to encourage adjudicators to be more accepting of the
argument that the creation of jobs for U.S. workers may qualify
applicants for a national interest waiver. The jury is certainly out
on this particular "benefit."
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Expand Premium Processing – Those applicants attempting to
acquire permanent residence as multinational managers or
executives under the EB-1-3 immigrant visa category
(multinational managers and executives) will apparently
become eligible to request premium processing of their I-140
petitions.
Streamline the EB-5 Immigrant Investor Process - The EB-5
immigrant visa category for individual investors as well as for
those investing in an approved Regional Center has been
unpredictable and confusing, and the process is lengthy.
USCIS proposed accelerating its processing time for
applications via the extension of premium processing and
improving the expertise of adjudication teams.
September 15, 2011 From the American Immigration Lawyers Assoc.
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DOL Liaison has received reports that members are beginning to receive
PERM prevailing wage determinations for requests that were submitted as
recently as June 23, 2011. If you receive a prevailing wage determination for
a request submitted after June 23, please notify us at reports@aila.org,
subject line: Prevailing Wage Update.
September 12, 2011
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On September 12, 2011, DOL posted additional information on its website
regarding H-2B prevailing wage redeterminations (AILA Doc. No. 11091231),
along with Q&As regarding the impact of prevailing wage delays on H-1B
Labor Condition Applications and the use of alternative wage surveys as a
means to avoid filing delays (AILA Doc. No. 11091232).
September 9, 2011
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On September 9, 2011, AILA and other stakeholders met telephonically with
DOL for a follow-up call and update on the prevailing wage situation. The
report from the DOL Liaison Committee (AILA Doc. No. 11091230) includes
information on DOL’s current efforts to reduce the backlog of PERM
prevailing wage requests, and DOL’s stated timeline for becoming current on
all prevailing wage requests.
Case No. 45-CV-201 Circuit Court of Lowndes
Co., Alabama.
Palmer v. Infosys Technologies Limited Inc.
Whistleblower Action tied to use of B-1 Welcome
Letters to attend meetings to send lower level and
unskilled Indian nationals to the U.S. to work in
full-time positions at customer sites . Employees
remained on foreign payroll.
Hearing on “The Economic Imperative for Enacting
Immigration Reform” - July 26, 2011 – Senate
Judiciary Subcommittee on Immigration, Refugees
and Border Security
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Hearing on “The Economic Imperative for Enacting
Immigration Reform” - July 26, 2011 – Senate
Judiciary Subcommittee on Immigration, Refugees
and Border Security – testimony by Jay Palmer at
invitation of Senator Grassley
Infosys created and internal website of do’s and
don’ts such as “Do not mention activities like
implementation, design & testing, consulting, etc.,
which sound like work. Also do not use words like,
work, activity, etc., in the invitation letter. Please do
not mention anything about contract rates as you’re on
a B-1 Visa.”
58 Fed. Reg. 40024 (July 26, 1993) – DOS
Proposed Rule
58 Fed. Reg. 58982 (November 5, 1993) – INS
Proposed Rule
 Cease B-1 in lieu of H-1
 Counter “job shop” abuse with ending
contract for service options and require the
foreign company to control all aspects of the
B-1’s activities
 Matter of Pozzoli, 14 I & N Dec. 569 (1974)
FLSA standards
The FDNS Reports and Analysis Unit (RAU) looks
at ASVVP cases referred to FDNS and the
resulting Statements of Findings (SOFs) to
determine fraud rates. In FY10, out of 15,083
ASVVP cases reviewed by Center Fraud
Detection Offices at CSC and VSC (CFDOs), only
197 (1%) were referred to field FDNS IOs as
fraud leads/cases. In FY11 YTD, the CFDOs
have referred 46 cases to field IOs. FDNS
doesn’t count adverse actions taken by
Adjudications in the fraud rate.
H-1B Cases
H-1B Cases
(86%)
H-1B Cases
(14%)
H-1B Cases
(1%)
H-1B Cases
(12%)
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Reviewed:
Verified:
15,083
13,038
Not Verified:
2,045
Referred to FDNS:
192
Referred to Adjudications:1,853
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Petitioner (business) does not physically exist
Petitioner misrepresented the details of the beneficiary’s
employment
Beneficiary is not or will not be employed in the location
or area certified
Beneficiary is not or will not be performing the duties
specified on petition
Petitioner withdrew the petition
Petitioner is not paying the beneficiary at the certified
wage
Beneficiary is not or will not be employed by the
petitioner
Sept.
20, 2011 ARB of DOL affirms settlement refused claims made by certain of the H-1B workers
as well as the arguments of the Pilipino Educators
Network that the debarment agreement would breach
the school district’s promise to assist the H-1B
workers to acquire U.S. legal permanent residence
Administrative Judge Johnson also affirmed that an
employer is responsible for paying “any fee required
under §214(a)” of the Immigration and Nationality
Act, as amended. (INA), but acknowledged that a
settlement does not have to result in a full
recompense of such expenses to the employee.
Mohan Kutty, M.D., v. U.S. Department of
Labor, (E. D. Tenn. at Knoxville no. 3:05-CV510 Phillips)
The U.S. District Court for the Eastern District of
Tennessee upheld a $1.1 million judgment by
the DOL’s Administrative Review Board against
the owner of a chain of medical clinics for the
failure to pay required H-1B wages. (Sept.
2011) Dr. Kutty has appealed the decision to
the Court of Appeals for the Sixth Circuit.
The Tennessee federal district court in Kutty
expanded an employer’s responsibility to
include the payment of J-1 waiver-related fees,
because
an H-1B employer usually must
provide an approval of this waiver with its H-1B
petition for the foreign physician. The court’s
order linked the H-1B petition to the required J1 nonimmigrant waiver for the physicians as an
unauthorized business expense of the H-1B
employer under 20 CFR §655.731(c)(7),(9) and
(12).
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The Immigration and Nationality Act, §212(n)(2)(C), and relevant regulations
at 20 CFR §655.731(c)(10)(ii) strictly prohibit an H-1B employee from paying
the ACWIA fee.
In addition, under 20 CFR §655.731(c)(10)(ii), if an employee pays an
employer liquidated damages for early termination of the employment
relationship, the liquidated damages cannot recoup this fee.
If an employer depresses an employee’s wages below the required H-1B
wage by requiring the employee to pay any of the employer’s business
expenses, the DOL will deem the amount to be an unauthorized deduction
from the employee’s wages, even if the expense is not reflected on the
employer’s payroll records as a deduction, under 20 CFR §655.731(c)(12).
For example, under 20 CFR §655.731(c)(9)(iii)(C), an employer may not
recover “attorney fees and other costs connected to the performance of H-1B
program functions, which are required to be performed by the employer
(e.g., preparation and filing of LCA and H-1B petition).” Lawyers continue to
debate whether unauthorized deductions, which do not depress the
employees’ wages below the required wage, result in a regulatory violation.
Oct. 12 Hearing - House Judiciary Committee's
Subcommittee on Immigration Policy and
Enforcement - ICE Director, John Morton
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As of Sept. 17, 2011, ICE had initiated 3,015 worksite investigations, 154
percent more than in fiscal year 2008;
In fiscal year 2010, ICE arrested 196 employers for criminal worksite-related
immigration violations, surpassing the previous record of 135 arrests in
fiscal year 2008;
So far in fiscal year 2011, ICE has also issued a record 2,393 I-9 audit
notices of inspection, a 375 percent increase above the number issued in
fiscal year 2008;
In 2011, ICE has issued 331 final orders following worksite inspections
totalling $9 million in fines levied on employers, compared to 18 final orders
issued in fiscal year 2008 totaling $675,000.
Oct. 12 Hearing - House Judiciary Committee's
Subcommittee on Immigration Policy and
Enforcement - Chairman, Lamar Smith
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Smith disagreed with these statistics, arguing that worksite
enforcement has dropped 70 percent over the past two years
due to ICE's decision to abandon large-scale worksite raids.
“Their lack of enforcement allows illegal immigrants to fill the
jobs that should go to unemployed American workers,” he
said.
While ICE “claims they have increased the number of employer
audits,” such actions “do little to discourage illegal hiring,”
Smith said. “Employers consider fines often just the cost of
doing business,” he said.
8 U.S.C. Sec. 1324b
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•
Citizenship/Immigration status
discrimination
National origin discrimination
Document abuse
Retaliation
DOJ – OSC - WHAT EMPLOYERS SHOULD DO:
• Check no-match information against your
personnel records
• Inform employee of no-match notice
• Ask employee to confirm Name/SSN as reported
• Refer employee to local SSA office for assistance
• Give employee reasonable period of time to resolve
• Periodically communicate with employee on status
of resolution efforts
• Follow same procedures for all employees,
regardless of citizenship status or national origin
• Submit any employer or employee corrections to
the SSA
DOJ – OSC WHAT EMPLOYERS SHOULD NOT DO:
• Assume no-match notice is evidence of
undocumented status or lack of work authorization
• Use no-match notice to terminate, suspend or take
other adverse action against the employee
• Follow different procedures for different employees
based on national origin or citizenship status
• Require employee to produce specific documents
to address the no-match
• Ask the employee to provide a written report of SSA
verification
By September of 2010, the DOJ increased the
number of attorneys and investigators in the
OSC by 25%. On July 1, 2010, the DOJ published
press releases regarding a settlement with
Macy’s regarding the alleged firing of a worker
after a permanent resident card expired. (Of
course, an I-551 permanent resident card, aka
"Green Card" is only documentation of status
and the status does not expire with the date on
the card.)
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August 26, 2011 – Kinro Manufacturing Inc. of Goshen,
Indiana paid a $25,000 civil penalty and $10,000 in back pay
for subjecting newly hired non-U.S. citizens to excessive
demands for documents issued by DHS to verify their
employment eligibility.
August 22, 2011 – Farmland Foods, Inc., a major U.S. pork
producer agreed to pay $290,400 in civil penalties, the
highest civil penalty paid via settlement of violations of the
INA’s anti-discrimination provisions, for requiring the
presentation of certain or excessive work authorization
documents.
May 31, 2011 – The American Academy of Pediatrics agreed
to pay $22,000 in civil penalties for impermissibly limiting
applications for positions to U.S. citizens and certain visa
holders.
On March 23, 2010, OSC issued a bilateral resolution
dismissing a charge of document abuse and
citizenship status discrimination filed by a LPR
against Crestwood Suites. The lawful permanent
resident alleged that Crestwood Suites terminated
him after it ran his name through E-Verify and
received a FNC. The parties entered into settlement
agreement resolving the charge under which the
charging party was reinstated and received full back
pay of $3,200. (Durham, NC)
In June 18, 2010, OSC issued a letter of resolution to
The Pantry, Inc. (Pantry), dismissing a charge of
document abuse. The charge alleged that the Pantry
terminated the charging party, a U.S. citizen, after he
received a TNC from E-Verify. The charging party had
been employed by The Pantry for seven months
before he was improperly run through E-Verify. In
response to OSC’s investigation, the Pantry and the
charging party reached an agreement providing that
he would withdraw his charge in exchange for
reinstatement and a payment of $3,500 to the
Charging Party. The charging party rejected The
Pantry’s offer of reinstatement. (Hilton Head, SC)
On
May 13, 2011, USCIS announced the availability of its new resource
for employers regarding the completion of the I-9 form for new hires.
I-9 Central is frequently updated and all postings are allegedly cleared
by ICE, USCIS, and the OSC. I-9 Central currently provides more
detailed information on acceptable documents for I-9 completion,
correcting I-9s, how to complete an I-9, which I-9 forms to use, a
retention formula, etc.
The Citizenship/Document Matrix under the heading, "Who is Issued
This Document?," is a new resource as to work authorization
documentation for the I-9.
One important point to remember is that I-9 Central does not have the
force of law. USCIS will look to the M-274 Handbook for Employers as
to the final word on I-9 compliance guidance. Thus, the utility of I-9
Central is still under review by employers and legal counsel alike. Any
reliance by an employer on the contents of I-9 Central should be
documented in the employer’s compliance file by retaining a copy of
the relevant portions of I-9 Central used by the employer along with the
date of the content.
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On August 16, 2011, USCIS expanded the Self Check
eligibility confirmation system to include 21 states and
the District of Columbia. Self Check is an on-line
service offered directly to the public via E-Verify to help
employees verify their work eligibility in the U.S. It is
voluntary. Self Check is available to workers over the
age of 16 to confirm their eligibility to work in the U.S.
and to submit corrections to their DHS and SSA records,
if needed Self Check USCIS webpage
www.uscis.gov/selfcheck.
Employers cannot require an employee or potential
employee to use Self Check to prove work
authorization.
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E-Verify is an internet based system
operated by DHS that assists businesses in
determining the identity and work eligibility
of their new hires.
Alabama, Georgia, Indiana, Louisiana, North
Carolina, South Carolina, Tennessee, Utah,
and Virginia all enacted E-Verify legislation,
while Florida did so by executive order.
© 2011, Cox Smith Matthews
Incorporated
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A rebuttable presumption is established that the Employer
has not violated §274A(a)(1)(A) of the INA with respect to the
hiring of any individual if it obtains confirmation of the
identity and employment eligibility of the individual in good
faith compliance with the terms and condition .
No person or entity participating in E-Verify is civilly or
criminally liable under any law for any action taken in good
faith based on information provided through the confirmation
system. DHS reserves the right to conduct Form I-9 and EVerify system compliance inspections during the course of EVerify, as well as to conduct any other enforcement activity
authorized by law.
© 2011, Cox Smith Matthews
Incorporated
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Employers seeking to participate in IMAGE must first
agree to:
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Submit to an I-9 audit by ICE, and
To ensure the accuracy of their wage reporting,
verify the Social Security numbers of their existing
labor force utilizing the Social Security Number
Verification System (SSNVS).
Upon enrollment and implementation of DHS’s best
hiring practices, program participants will be
deemed “IMAGE Certified” - a distinction DHS
believes will become an industry standard.
© 2011, Cox Smith Matthews
Incorporated
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Not subject to a subsequent Form I-9
inspection for a period of two years, from the
date of Form I-9 inspection completed as
part of the IMAGE certification process,
absence the existence of specific intelligence
of unlawful employment.
Mitigate/Waive fines if substantive violations
are discovered on fewer than 50% of the
Forms I-9. In instances where more than 50%
of the Forms I-9 contain substantive
violations, ICE will issue fines at the statutory
minimum of $110 per violation.
© 2011, Cox Smith Matthews
Incorporated
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More than 40 percent of the 2010 Fortune 500 companies were founded by
immigrants or their children. Even though immigrants have made up only
10.5 percent of the American population on average since 1850, there are 90
immigrant-founded Fortune 500 companies, accounting for 18 percent of
the list. When you include the additional 114 companies founded by the
children of immigrants, the share of the Fortune 500 list grows to over 40
percent.
The newest Fortune 500 companies are more likely to have an immigrant
founder. A little less than 20 percent of the newest Fortune 500 companies
— those founded over the 25-year period between 1985 and 2010 — have
an immigrant founder.
The revenue generated by Fortune 500 companies founded by immigrants or
children of immigrants is greater than the GDP of every country in the world
outside the U.S., except China and Japan. The Fortune 500 companies that
boast immigrant or children-of-immigrant founders have combined revenues
of $4.2 trillion. $1.7 trillion of that amount comes just from the companies
founded by immigrants.
Introduced by Rep. Raul Labrador –
American Innovation and Education Act of 2011
Allow foreign graduates of U.S. universities
who received their degrees in a science,
technology, engineering, or math field to
remain in the United States and receive a
green card promptly when sponsored by an
American employer, according to a summary
from the congressman's office.
On 9/22/11, Congressman Jason Chaffetz (R-UT) along with
Chairman Lamar Smith (R-TX) introduced H.R. 3012, the
"Fairness for High-Skilled Immigrants Act". The bill eliminates
the current per country cap limits of 7% on all employmentbased green card categories over a three year transitional
(phase-in) period leading to a strictly “first in, first out” (based
on priority dates) system within the existing EB category system.
The measure immediately increases the family-based per
country cap from 7% to 15%.
 During the three year phase-in of the “first in, first out”
employment based system— no group of applicants from a
single country may receive more than 70% of employment
based visas. The effective date of this measure would be as if
enacted on September 30, 2011. Effective date as if enacted
on 9/30/11.
On 10/6/11 Congresswoman Lofgren (D-CA) and Congressman
Gutierrez (D-IL) introduced H.R. 3119, the "Protecting American
Families and Businesses Act of 2011" a bill that includes the
provisions contained in H.R. 3012, as well as some additional
provisions and with an implementation date of the beginning of
fiscal year 2013.
The employment related provisions include expanding certain
AC-21 protections to include L and F visa holders (allowing them
to get an extension on an expiring visa if their employer files a
permanent residence petition on their behalf). F visa holders
would also be allowed dual intent. H.R. 3119 also includes
provisions that would recapture unused employment-based and
family-based green cards.
Rep. Lofgren’s Immigration Driving Entrepreneurship in America
(IDEA) Act of 2011 addresses many of the critical issues faced by
companies in need of highly skilled workers. The bill allows U.S.
companies to have access to, and retain, highly skilled foreign
graduates from U.S. universities who studied in the fields of
science, technology, engineering and math (STEM).
 Allows businesses to attract and retain successful innovators
by creating a new “EB-1” green card category for advanced
degree holders in STEM fields from certain U.S. universities
that excel in STEM instruction.
 Exempts these advanced STEM degree holders, as well as
persons who qualify under the current EB-1 category for
“outstanding professors and researchers,” from numerical
limits.
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Incentivizes economic growth and job creation by creating a
new green card category for entrepreneurs who establish new
start-up businesses and create jobs for American workers.
Provides “conditional” green cards to two types of
entrepreneurs:
Venture
Capital-Backed
Start-Up
Entrepreneurs and Self-Sponsored Start-Up Entrepreneurs.
“Recaptures” employment-based and family-based green
cards that were authorized under current law but went
unused due to government delays; also ensures that available
visas will no longer go to waste in the future.
Eliminates employment-based “per country” levels so that all
workers are treated fairly and employers can hire the most
skilled workers without regard to national origin; also
changes family-based per-country levels from 7% to 10%.
HR 2885 Legal Workforce Act – Introduced by
Lamar Smith – House Judiciary Committee
approved on 9/21/2011
Preemption
provision in place
Close “loophole” as to returning agricultural
workers being considered new hires
Mandates E-Verify for New Hires
Kathleen Campbell Walker
Partner
Harry Gee, Jr.
Law Office of Harry Gee Jr. @ Associates APC
Cox Smith Matthews Incorporated
221 N. Kansas, Suite 2000
Suite 2950 PH
El Paso, Texas 79901
5847 San Felipe
Tel: 915-541-9360
Board Certified in Immigration and Nationality Law,
Houston, Texas 77057
Texas Board of Legal Specialization
Tel: 713-781-0071
kwalker@coxsmith.com
hgee@harrygee.com
Harry J. Joe
Jackson Lewis LLP
3811 Turtle Creek Blvd.
Suite 500
Dallas, TX 75219
Tel: 214 -273- 5060
Board Certified in Immigration and Nationality Law ,
Texas Board of Legal Specialization
joeh@jacksonlewis.com