Immigration Issues for Employers:
What In-House Counsel and
Human Resources Professionals
Need to Know
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© 2009 Employment Law Alliance
INTRODUCTION
Steve Hirschfeld
Moderator
Presenters
•
Moderator – Stephen J. Hirschfeld
Curiale Hirschfeld Kraemer LLP
San Francisco, CA
shirschfeld@chklawyers.com
•
Robert S. Anderson
Miller, Canfield, Paddock and Stone, P.L.C., Ann Arbor, MI
andersonr@millercanfield.com
Melanie Gurley Keeney
Tueth Keeney Cooper Mohan & Jackstadt, P.C., St. Louis, MO
mkeeney@tuethkeeney.com
Teri A. Simmons
Arnall Golden Gregory LLP, Atlanta, GA
teri.simmons@agg.com
Christopher L. Thomas
Holland & Hart LLP, Denver, CO
cthomas@hollandhart.com
•
•
•
3
Non-immigrant
Visa Issues
• Non-immigrants defined.
• Trends in USCIS and DOS adjudications.
• Comprehensive non-immigrant visa reform?
4
B-1 Business Visitor /
B-2 Visitor of Pleasure
• B-1: Commercial transactions not involving
employment.
–
–
–
–
Negotiating contracts
Attending business / board meetings, conventions, executive seminars
Consulting with clients / associates
Installing equipment pursuant to contract of sale (excluding building /
construction work)
– Exploring investment; setting up subsidiary
• B-2: Tourism, amusement, visiting friends/family,
medical treatment, non-spouse partners.
• Apply for B-1/B-2 visa at U.S. Consulate abroad;
apply for U.S. admission at port of entry.
5
Visa Waiver Program (VWP) &
Electronic System for Travel
Authorization (ESTA)
• VWP: Allows eligible citizens & nationals of participating
countries to travel to U.S. for business or pleasure for up to
90 days without a visa; no change/extension.
• ESTA: Effective 1/12/2009, all VWP non-immigrants must
obtain authorization before embarking on travel to U.S.
• Complete ESTA application at: http://esta.cbp.dhs.gov/.
• In most cases, almost immediate eligibility determination.
• Approved ESTA application generally valid for 2 years (or
until applicant’s passport expires).
6
H-1B Specialty
Occupation
• DEADLINE for new H-1B Petitions: April 1, 2009!!
• Bachelor’s degree or higher in specialty (or equivalent).
• Employer and position specific.
• 65,000 H-1B visas / year (less free trade visas); 20,000
additional H-1B visas / year for persons with Master’s
degree or higher from U.S. school.
• Process: (1) Obtain USDOL LCA certification; (2) Obtain
USCIS approval of H-1B petition; (3) Obtain H-1B visa at
U.S. Consulate (if abroad or traveling).
• Admission: 3 years initial; extend to 6 years maximum.
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Intracompany Transferees
L-1A (Executives / Managers)
L-1B (Specialized Knowledge)
• Employed continuously abroad for 1 of 3 prior years by
parent, branch, affiliate, or subsidiary of U.S. company.
• Must be manager, executive, or worked in specialized
skill abroad; may be in any of these three in U.S.
• Process: (1) Obtain USCIS approval of L-1 petition; (2)
Obtain L-1 visa at U.S. Consulate (if abroad or
traveling). (With Blanket L approval, can apply directly
at U.S. Consulate without prior USCIS approval.)
• Admission: 3 years initial; extend in 2-year increments
to 7-year maximum for L-1A, 5-year maximum for L-1B.
• Heightened scrutiny.
8
E-1 Treaty Trader /
E-2 Treaty Investor
• E-1: Substantial trade.
• E-2: Substantial investment / employment creation.
• Process: Can apply for visa directly at U.S.
Consulate abroad without prior USCIS approval.
• Trends in interpretation at U.S. Consulates abroad.
9
O-1 Extraordinary Ability
• Extraordinary ability in the sciences, arts, education,
business, or athletics, demonstrated by sustained
national or international acclaim.
• Awards; memberships; publications about person;
judging work of others; original contributions of
major significance; scholarly articles; critical/
essential employment with distinguished
organizations; high salary.
• Adjudication trends in light of H-1B cap.
10
TN Trade NAFTA
• For Canadians and Mexicans engaged in professional
activities in U.S. for specific employer.
• Regulations specify categories of professionals and
minimum degree/credential required for each category.
• No prior visa required for Canadians; apply directly at
U.S. port of entry.
• Mexicans must obtain visa at U.S. Consulate; no prior
petition with USCIS required.
• Port of entry processing trends.
11
EB-1 Trends for
Multinational
Managers/Executives
• Position (Abroad and U.S.).
– Detailed job description.
• Employees supervised
– Title/job description of direct reports
• Function/Division/Subdivision manage
– Corporate organizational chart.
• All job titles
• Names of employees
12
EB-1 Trends for
Multinational
Managers/Executives
• Evidence of employment abroad.
– 1 year of pay stubs.
– Employer confirmation letter.
13
EB Preference
Categories
• EB-2
– Master’s Degree.
– Baccalaureate degree plus 5 years of progressive
post-baccalaureate experience in a specialty
occupation.
• EB-3
– Professionals – Baccalaureate degree.
– Skilled Workers – Full-time permanent job requiring at
least 2 years of training or work experience.
– Other Workers – Includes foreign nationals with fewer
than 2 years of training or work experience.
14
India Degrees
• Baccalaureate Degrees
– B.SC/B.A/B.COM are generally a 3-year course
of studies
– B.ENG is a 4-year course of study
• Master Degrees
– M.SC/M.A/M.COM are generally a 2-year course
of studies after completion of B.SC/B.A/B.COM
15
India Degrees
• Credential evaluation
– Specific and meaningful analysis.
– Document qualifying degree equivalent with
comparable U.S. degree.
• Higher education systems
http://unesco.org/iau/onlinedatabases/index.html
http://www.aacrao.org/publications/catalog/wes.cfm
16
PERM Audits
• Approximately 25% audited
– Substantial delay if case is audited (1 year or more)
• Foreign language requirement
17
PERM Audits
• Exceeds the “normal” requirements for the
occupation.
– Specific vocational preparation (SVP).
• Levels of SVP
SVP 1 - Short demonstration only
SVP 2 - Anything beyond short demonstration up to and including 1 month
SVP 3 - Over 1 month up to and including 3 months
SVP 4 - Over 3 months up to and including 6 months
SVP 5 - Over 6 months up to and including 1 year
SVP 6 - Over 1 year up to and including 2 years
SVP 7 - Over 2 years up to and including 4 years
SVP 8 - Over 4 years up to and including 10 years
SVP 9 - Over 10 years
• Baccalaureate = 2 years of SVP
Masters = 4 years of SVP
Ph.D. = 7 years of SVP
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PERM Audits
• Layoffs or reduction in force (RIF)
– Within 6 months of filing PERM.
– In the occupation or a related occupation.
• related occupation = majority of the essential duties are the
same
– Must notify “all potentially qualified” laid-off workers in
the occupation or related occupation.
19
PERM
• iCERT System
– July 1, 2009 - OFLC begins receiving new PERM
form for processing.
– July 31, 2009 – OFLC continues receiving existing
PERM form through PERM Online System.
– August 1, 2009 – OFLC disables filing of existing
PERM form, but keeps PERM System up for case
status checks/withdrawals.
20
Special Handling
Cases for College/
University Professors
• Not filed within 18 months after competitive
selection process completed.
– Conduct new competitive selection process
– Use modified PERM recruitment process
- National Print Ad and Posting
- Union might not allow
21
Premium Processing
for Form I-140
• When available:
– Currently in H-1B nonimmigrant status;
– Reach the end of the 6th year within 60 days;
– Only eligible for a further extension of H-1B
nonimmigrant status under section 104(c) of
AC21; and
– Ineligible to extend H-1B status under section
106(a) of AC21.
22
DHS Immigration
Enforcement
• Immigration enforcement against employers
•
Enforcement history
– Civil audits (previous approach)
•
Current enforcement activity
– Criminal investigations (change in the equation)
 “We’re not really doing fines anymore . . . We prefer to
conduct criminal investigations.” Marc Raimondi, ICE
Spokesman.
 “Usually the way it works is we get a couple of hundred
administrative or criminal arrests and a few supervisors.
Then we work our way up.” Pat Reilly, ICE Spokesman.
23
DHS Immigration
Enforcement
• What about the new Administration?
•
Obama appoints Napolitano, who:
• Signed into law an Arizona bill denying business licenses to
firms that knowingly hire illegal aliens.
• Has criticized the federal government for failing to secure the
Mexican border and has requested sending national troops to
guard the border.
• Called for mandatory participation in E-Verify program.
• President Obama:
“We are a nation of laws and a nation of immigrants, and those
two things we can join together. We can get serious about our
borders and crack down on employers who are taking
advantage of undocumented workers and undermining U.S.
labor . . . .” (February 19, 2008; Washington Post.)
24
I-9 Employment
Verification Form
(eligibility to work in U.S.)
• Effective I-9 Compliance Program is Critical
• Employees NOT Covered:
• All employees hired on or before November 6, 1986 (including parttime student workers)
• Casual hires (i.e., workers who fill a “sporadic, irregular, or
intermittent domestic needs”).
• Independent contractors/employees of independent contractors (i.e.,
workers “who carry on independent business and are subject to
control only as to results”).
 Wal-Mart Exception
• Retention Requirements:
• Three years from the date of hire; or
• One year from the date of termination;
• Whichever of the two dates is later.
25
I-9 Employment
Verification Form
(eligibility to work in U.S.)
•
“Constructive Knowledge” arises where an employer:
(1) Fails to complete or improperly completes the Form I-9; or
(2) Has information available to it that would indicate that the alien
is not authorized to work.
NOTE: Employee’s foreign appearance or accent is not relevant.
• Examples of Knowledge/Constructive Knowledge:
(1) Confession;
(2) DHS Audit;
(3) Unusual Event in the Workplace (e.g., rumor of ICE officers and
panicked scattering of employees);
(4) Rumors (?) ;
(5) Mismatch Letter from Social Security (?).
26
I-9 Employment
Verification Form
(eligibility to work in U.S.)
New Changes in Form I-9 (which must be used beginning on April 3,
2009):
• Narrows the list of acceptable identity documents.
•
•
•
Eliminates Forms I-688, I-688A, and I-688B (older versions of temporary
resident and employment authorization cards) from List A.
Adds foreign passports with machine-readable immigrant visas to List A.
Adds to List A valid passports for citizens of the Federated States of Micronesia
and the Republic of the Marshall Islands, along with Form I-94 or Form I-94A
indicating nonimmigrant admission under the Compact of Free Association
between the U.S. and FSM and RMI.
• Requires that all documents presented during verification process
be unexpired.
• Section 1 allows employee to attest to being either a citizen or
noncitizen national of the United States.
•
Noncitizen nationals are persons born in American Samoa, certain former
citizens of the Trust Territory of the Pacific Islands, and certain children of
noncitizen national born abroad.
27
I-9 Employment
Verification Form
(eligibility to work in U.S.)
Penalties for employers that fail to follow applicable
verification requirements (Federal Civil Penalties):
• Cease and Desist Order
• Civil Penalties:
– Knowing Employment of Illegal Aliens ($375 to $3200 per
count on first offense—higher [up to $16,000 per count] on
subsequent offenses).
 Examples (IFCO, Georgia Peach Grower, Wal-Mart)
–
Paperwork Violations ($110 to $1100 for each I-9 form in
violation).

–
Examples (Disneyland)
Debarment from entering Federal Contracts for one year
under Executive Order.
28
I-9 Employment
Verification Form
(eligibility to work in U.S.)
Penalties for employers that fail to follow applicable
verification requirements (Federal Criminal Penalties):
• Pattern and practice of hiring illegal aliens (up to 6 months).
• Knowingly hiring 10 unauthorized workers within 12 months (up
to 5 years in prison).
• Harboring or inducing (up to 10 years – a government favorite).
• Providing false attestation for purposes of satisfying requirements
for I-9 purposes (up to 5 years) or obtaining an immigration
benefit (up to 10 years).
29
Unfair Immigration
Employment Practices
•
Employer cannot discriminate against a “protected
individual” because of national origin or citizenship in
hiring, recruitment, referral, or discharge.
•
Document abuse prohibited – Common Document Abuse
Situations:
1)
Employer insists on specific documents in the I-9
verification process.
2)
Employer requests verification-related documents
before hiring the individual.
30
Unfair Immigration
Employment Practices
•
Penalties for Document Abuse
– Cease and Desist.
– Compliance for 3 years.
– Retain records of people applying for 3 years.
– Back pay and rehire.
– Civil fines ($325 to $3,200 per count).
– Debarment from participating in federal contracts
(Executive Order No. 12989 (Feb. 16, 1996)).
31
Does E-Verify
Apply to You?
• Federal Obligations
• Executive Order 13465 and new regulations for
federal contractors.
• Is your institution a federal contractor?
• New State Obligations
• Many states require employers to participate in EVerify?
• Public entities, state contractors.
• Private employers.
32
E-Verify and Federal
Contractors
• Executive Order 13465, June 2008.
• Federal Regulations, original effective date –
January 15, 2009.
– Pending legislation with DHS and Chamber of
Commerce regarding implementation of regulations.
– Delayed effective date to May 21, 2009.
33
Applicable Federal
Contracts
• Prime contracts over $100,000 are covered.
– Note: Prime contracts (over $100,000) with
performance terms less than 120 days are not
covered.
• Subcontracts over $3,000 for services or for
construction are covered.
– Note: Subcontracts over $3,000 with performance
terms less than 30 days are not covered.
34
Federal
Contractors
• Exemptions:
– Commercially available off-the-shelf items (COTS).
– Bulk cargo, except agricultural products shipped as
bulk cargo, will be exempt.
– Subcontracts for supplies.
• Does not include grants or cooperative
agreements.
– Exempts many universities and colleges from the
definition of federal contractor.
35
States Requiring
E-Verify
Public Employers
•
•
•
•
•
•
•
•
Private Employers
Arizona
Georgia
Mississippi
Missouri
North Carolina
Oklahoma
South Carolina
Utah
– NOTE: Prohibition in Illinois
• Arizona (now)
• Mississippi
(staggered effective
dates)
• South Carolina (all
private employers
effective July 1,
2010)
36
State Contractors
• California (City of Mission Viejo for contracts exceeding
$15,000)
• Colorado
• Georgia
• Idaho
• Minnesota (state contracts exceeding $50,000)
• Missouri
• Mississippi
• Oklahoma
• Rhode Island
• South Carolina
• Utah
37
E-Verify Basics
• Works in conjunction with the I-9 process.
• Queries the Social Security and Department of
Homeland Security (DHS) databases to
determine the employment eligibility of a new
hire.
38
E-Verify
Getting Started!
• Choose the person in charge.
• Register the company
– Corporate administrators
– Program administrators
– Users, passwords and database interaction.
• Execute the memorandum of understanding.
• Mandatory tutorial.
• Notice to employees (posters).
39
What Happens
Next?
• Do E-Verify query after I-9 process and not later than
the 3rd day after an employee starts work for pay.
• Cannot E-Verify applicants / prescreening is
prohibited!
• Must document reason for failure to timely E-Verify
on I-9 Form.
• Case Verification Number - MUST record Case
verification number on I-9 Form or print Case Details
page and attach to I-9.
• Intermittent employees.
40
Documents for
E-Verify
• Employee must provide SSN.
• When to do query – possible results
–
–
•
•
–
–
–
Employment authorized
SSA or DHS tentative non-confirmation
Procedures regarding employee “contest” of TNC
Updating I-9 with required documentation
Final non-confirmations
Case resolution
Penalties
41
CONCLUSION
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