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Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

USCIS Releases Revised I-9

The USCIS recently issued a revised version of the Form I-9, Employment Eligibility Verification Form. This form must be used beginning on September 18, 2017. All existing storage and retention rules for Form I-9 must continue to be followed. As you know, employers use the Form I-9 to verify the identity and employment authorization of newly hired employees. In this latest revision, the USCIS modified the List of Acceptable Documents to include adding to List C the Consular Report of Birth Abroad (Form FS-240), combined all certifications of report of birth issued by the U.S. Department of State (Forms, FS-545, DS-1350 and FS-240) into List C, and renumbered all List C documents except the Social Security Card. Additionally, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name of Immigrant and Employee Rights Section and removed “the end of” from the phrase “the first day or employment.”

Please contact your HLG attorney if you have any questions about the new form, how to do an internal audit, E-Verify or with any other immigration or employment verification questions.

Categories
Green Cards US Immigration Policy

The Future? of the EB-5 Program

Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program.

In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players:
Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration.

Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum.

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501.

Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum.

Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program.

The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases.
Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center program, have resulted in adverse consequences. In addition, legislative efforts have stalled over the methodology for determining TEAs, the two-tiered investment framework and effective dates for new provisions. We are also seeing increased USCIS adjudications times and longer waits for Chinese nationals due to visa backlogs.

Most recently, on November 30, 2016, the Department of Homeland Security (DHS) announced the expansion of the USCIS Policy Manual which introduced a new section, Volume 6: Part G, Investors. Part G consolidates and replaces policy guidance found in the Adjudicator’s Field Manual (AFM) Chapters 22.4, Employment Creation Entrepreneur Cases, and 25.2, Entrepreneurs (Form I-829), as well as related AFM appendices and policy memoranda.

While comprehensive guidance is good, the new section of the USCIS Policy Manual is often unclear; provides little in the way of examples and definitions; ignores common and acceptable practices, definitions, and methodologies; and misstates or misinterprets the regulations.

Some of chapters with problems of note for the direct investor include the following:

Chapter 2.A.5 – Targeted Employment Area
• Confirms that a TEA will cease to qualify as a TEA over time if unemployment decreases or population increases. This text is problematic because of the uncertainty it introduces into the planning of EB-5 projects as the USCIS will continue to evaluate and re-evaluate TEA designation.
• Does not mention current USCIS practice granting state TEA designations a validity period of 12 months.
• Not clear as to when an area must qualify as a TEA.
Chapter 2.D.3 – Full-Time Positions for Qualifying Employees
• Refers to the job creation requirement to be “full-time and permanent” when both the INA and the CFR refer to the term “full-time.”
Chapter 4.C – Form I-526/Material Change
• Provides that a “change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision” without providing examples to clarify what would be considered a “material change.”
Chapter 5.C – Removal of Conditions/Material Change/At Risk
• Misstates the plain language of the regulation by requiring evidence that the “at risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States.” The regulations only require investment be sustained “over the two years of conditional residence.”
• Excludes language confirming that an investor maintains his or her conditional permanent residence status even after the denial of the I-829 until a final administrative appeal is complete.

It is unknown if Ms. Kirchner and Mr. Cissna will be able to together resolve the issues and problem plaguing the EB-5 program. For the time being, we must utilize any and all means available to seek results for worthy cases. We should and must continue to submit well-document cases, participate in stakeholder meetings, advocate strenuously, and litigate if appropriate.

Should you have any questions about the future of the EB-5 program, please contact your HLG attorney.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance Visas - H-1b, L-1, E, O, TN

Employers Seeking H-1B Visas Should Not Discriminate Against US Workers Warns the U.S. Department of Justice

Yesterday, April 3rd was the first day the USCIS began accepting H-1B visa petitions that are subject to the cap for the next fiscal year (October 1, 2017 to September 30, 2018). The H-1B visa allows U.S. employers to employ temporarily foreign workers in specialty occupations including science and technology. The anti-discrimination provisions of the Immigration and Nationality Act (INA) prohibit employers from discriminating against U.S. workers because of their citizenship or national origin. This prohibition applies to hiring, firing and recruiting or recruiting for a fee. An employer may be found to have violated the INA’s anti-discriminatory prohibitions if they favor H-1B visa holders over U.S. workers. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.” The Immigrant and Employee Rights Section of the division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is responsible for prosecuting violations under these provisions which include citizenship, immigration status and national original discrimination in hiring, firing, recruitment or recruitment for a fee; unfair documentary practices; retaliation; and intimidation. Please contact Hammond Law Group if you have any questions about what may or may not be considered a violation of the INA’s anti-discrimination provisions.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

EMPLOYERS: You Can Use the Current Form I-9 until 01/21/2017

USCIS will publish a new Form I-9, Employment Eligibility Verification by November 22, 2016. As such, employers can continue to use the current Form I-9, dated 03/08/2013 until 01/21/2017. On or before 01/21/17, employers must use the new form.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance Visas - H-1b, L-1, E, O, TN

DOL Finds that in Certain Circumstances You Can Deduct H-1B Visa Fees from Employee Paycheck

The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.

In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.

Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

New Form I-9 Approved – Current Form I-9 Valid until 1/21/2017

On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. The new Form I-9 must be published by November 22, 2016. Employer can continue to use the current form until January 21, 2017. After that date, the new Form I-9 must be used. No other editions will be valid.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

OCAHO FINES TEXAS RESTAURANT $33,379.50 FOR 32 I-9 VIOLATIONS

Immigration and Customs Enforcement (ICE) served Jula888, LLC (Para Tacos La Chilanga) on August 4, 2014 with Notice of Inspection (NOI) which required production of the Forms I-9 for its employees, along with other business documents by August 7, 2014. On August 13, 2014, Jula888, through their attorney, notified ICE that no records were available to be produced. On December 15, 2014, ICE served Jula888 with Notice of Intent to Fine (NIF) with one count, alleging 32 violations of 8 USC 1324(a)(1)(B). Specifically, failure to prepare and/or present Forms I-9 for 32 employees. ICE proposed a fine of $34,408.00. Jula888 timely filed a request for a hearing before an Administrative Law Judge (ALJ) with the Office of the Chief Administrative Hearing Officer (OCAHO). ICE filed its complaint incorporating the violations included in the NIF, including the proposed fine. On September 21, 2015, Jula888 filed its prehearing statement, agreeing to the first six proposed stipulations, but not the seventh which concerned whether or not the 32 individuals were in fact employees of the company. On December 18, 2015, ICE filed a Motion for Summary Decision contending that it has it burden demonstrating the absence of a genuine issue of material fact as to Jula888’s liability for the 32 violations. Jula888 filed a Response to the government’s Motion for Summary Decision on January 20, 2016 arguing that the Government has not presented any evidence regarding the number of people employed by Jula888. On June 9, 2016, the ALJ ordered the parties to submit additional evidence. Jula888 did not provide any additional evidence. The evidence from ICE included testimony from former employees confirming the number of employees at each location and sworn statements from current employees confirming the number of employees, the fact that they were undocumented and that wages were withheld to pay smuggling fees. Based on the evidence in the record, OCAHO granted the government’s motion but adjusted the fines as a matter of discretion to an amount close to the maximum of permissible penalties.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

5th Circuit Overturns OCAHO I-9 Fines for MN Staffing Company

On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).

Categories
Immigration Compliance

INCREASES TO I-9 VIOLATIONS AND OTHER IMMIGRATION RELATED EMPLOYMENT VIOLATIONS

Today, the U.S. Department of Justice (DOJ) increased the possible fines and penalties for employers with I-9 employment eligibility violations including the employment of unauthorized workers and/or employers who have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). These increases are due to the Bipartisan Budget Act of 2015 which was enacted in late November 2015 and will take effect on August 1st for violations that took place after November 2, 2015.

Under the interim final rule, the minimum penalty for employment of an unauthorized worker will jump from $375 to $539 and the maximum penalty will jump from $3,200 to $4,313. Those with multiple violations may face a penalty of $21,563. I-9 paperwork violations will increase from a maximum of $1,100 to $2,156 while the new top penalty for unfair immigration-related employment practices violations will increase to $3,563.

I-9 and employment Immigration related violations are enforced by the DOJ through the Office of Special Counsel for Immigration-Related Unfair Employment Practices and the Office of the Chief Administrative Hearing Officer.

Categories
Government Agency Actions - USCIS, ICE, etc. Immigration Compliance

Is E-Verify More of a Hassle Than it is Worth?

E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. While voluntary for most employers and relatively easy to use for all, registering for and using the E-Verify system, without first performing an internal Form I-9 audit and ensuring you have adequate HR resources to complete the E-Verify process in a timely manner, could have serious consequences.

Problems can arise when E-Verify is used incorrectly by an employer. This improper or incorrect use of E-Verify can lead to an investigation from the U.S. Department of Justice Office of the Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Improper or incorrect use could include anything from listing too many List A documents, not running the E-Verify query within the mandated three day after hire timeframe, using E-Verify to pre-screen applicants or using E-Verify to verify the entire workforce. These independent investigations can lead to hundreds or thousands of dollars in fine and penalties. Therefore, it is our recommendation that before you register for and begin using E-Verify, you contact your immigration attorney to carefully review the pros and cons of using E-Verify and to make sure your company is in the best position to head off any potential issues.