Immigration Update Gregory A. Wald
Topics • Updates and procedural changes • California developments • Compliance and enforcement updates • E-Verify: Is it time?
Updates and Review • Chile added to VWP • Israel E-2 Investor Visa – expected soon • USCIS expands site visits to L-1 employers • Electronic I-94 implemented • DOMA
Adjudication Hurdles • H-1B and L-1 adjudications • Government Shutdown • Movement of H-1B employees � Site visits trigger inquiry � Change in USCIS policy? • PERM trend with denials and supervised recruitment • Immigrant Visa backlog continues � 140,000 per year, including family members � 10 years or beyond for professionals born in India � China: EB2 MAR 8, 2009; EB3 OCT 1, 2012 (April 2014 VB) • Security Advisory Opinions (SAO) during visa processing
Duration of H-1B Quota 65,000 + 20,000 H-1B Visas 12 10 8 6 10 9 8 4 2 2 0 0 0 2008 2009 2010 2011 2012 2013 2014
6 Look Familiar?
H-1B’s in Demand • Congressionally mandated cap at 65,000 per USCIS fiscal year � 6,800 visas allocated to US-Singapore and US-Chile Free Trade Agreements (H-1B1) � 20,000 additional allocated to those with US Advanced degrees • USCIS fiscal year begins 10/1 and ends 9/30 • Earliest filing date is April 1st prior to start of FY: � FY 2008 cap reached on 4/2/2007 � FY 2009 cap reached on 4/1/2008 � FY 2010 cap reached on 12/21/2009 � FY 2011 cap reached on 1/26/2011 � FY 2012 cap reached on 11/22/2011 � FY 2013 cap reached on 6/11/2012 � FY 2014 cap reached on 4/5/2013
Immigration Reform?
California Enters the Immigration Circus • AB 263 – Prohibits retaliation • AB 60 – Driver’s Licenses for for unfair immigration-related undocumented practices � Can obtain D.L. with affidavit: not eligible for SSN and cannot provide � Includes new Labor Codes section proof of valid status 1024.6: � Issued ID with “DP” (driving – An employer may not discharge an employee or in any manner priveledge) but not “DL” discriminate, retaliate, or take any � Not acceptable for I-9 or federal adverse action against an benefits, or voter registration employee because the employee updates or attempts to update his � What about those in valid status or her personal information, unless (A, H, L,O, TN, etc) that eligible for the changes are directly related to the skill set, qualifications, or “DL” – placed in same class? knowledge required for the job. � Takes effect January 1, 2015 with � Conflict with honesty policy and possible implementation sooner possible constructive knowledge 9
10 Form I-9 Redesigned
More Form, More Data Collection • Took effect 3/8/13; previous versions no longer acceptable • Now 2 pages • Page 1 dedicated to employee and page 2 to employer • Additional optional fields – email and phone number • Social Security Number in Sec 1 optional unless use E-verify • Reference to “USCIS number” = A number • 3D barcode – for future use • M274 Guidance for Completing I-9 – only 70 pages • I-9 Central www.uscis.gov/i-9-central
DHS Continues Auditing Employers 3500 3000 2500 2000 I-9 Inspections 1500 1000 500 0 FY 09 FY 09 FY 10 FY 2011 FY 2012 Source: DHS
Source: DHS Anatomy of an ICE I-9 Audit
OCAHO Turns Up the Heat on Ice • 2013 - 30 decisions compared to 11 in 2012 • In 28 of 30 decisions OCAHO reduced the ICE I-9 fine • Average reduction of fine in 2013 was 46.5% � Highest fine sought $188,017 � Greatest reduction $80,017 • In most cases, ALJ found ICE penalty too punitive for small company • Majority of employers were restaurants followed by retail 14
Infosys: Largest Immigration Related Fine To Date • $34 million in civil fines • Arose from whistleblower alleging wide-scale abuse of B-1 visa • Spawned multiple investigations by DHS, DOJ, IRS and DOL • Electronic I-9 system • Many violations stem from failure to reverify – Section 3 • Settlement closes up investigations by DHS, DOJ AND IRS • Is Department of Labor next? H-1B violations? • Use of B-1 visa will be scrutinized 15
Immigration Discrimination Enforcement • DOJ Office of Special Counsel (OSC) aggressively pursuing claims against employers • Employment discrimination based on: � Citizenship or immigration status; � National origin discrimination; � Unfair documentary practices (document abuse); and � Retaliation • Recent examples: � Macy’s fined $275,000 for back wages and fines stemming from re-verification of green holders � American Academy of Pediatrics - $22,000 civil penalty for posting jobs on website that limited openings to USC and certain visa holders � Wendy’s franchise owners - $14,500 back pay and $3200 civil penalties for refusing to hire work authorized applicants whom it believed were not citizens � Expanded enforcement of E-Verify violations/abuses 16
17 State Immigration Checked “show me your papers” laws Retreat of
States with E-Verify Requirements Source: NILC 18
E-Verify: Ready for Primetime? • Online verification of employment eligibility • Now used by 500,000 + employers • Pilot program with funding through 9/30/2015 • Mandatory in some states and for federal contractors • Error rates have decreased � 1.7% not found work authorized of current users � .28% of that segment challenged and found authorized • E-Verify Self Check now nationwide • New TNC process; simplified notices • USCIS now data-mining to flag violators � Seeing more audits � Sharing employer data with other agencies (OSC, DHS)
Contact Information Gregory A. Wald gregory.wald@squiresanders.com +1 415 393 9828
E-Verify and State Immigration Law Summary State Law and Effective Dates Private Employers Public Employers State Contractors Alabama Beason-Hammon Alabama All employers must enroll in E-Verify. See Private Employers note. All employers who are state/public Taxpayer and Citizen Protection There is no sanction for a failure to contractors of any tier, grant Act (HB 56, amending Ala. Code do so, however, employers that use recipients and others who receive §32-6-9 (1975), E-Verify portions E-Verify will have a safe harbor from state incentives be registered with effective 1/1/12 for state any liability under Alabama law. and use E-Verify. contractors and 4/1/12 for private employers.*Other provisions currently stayed subject to 11th Circuit Court of Appeals temporary injunction. Alaska N/A N/A N/A N/A Arizona Legal Arizona Workers Act Every employer must verify Effective September 30, 2008, any See Public Employers note. (A.R.S. §§23-211 to 23-214) employment eligibility using E-Verify. state government entity shall not award (LAWA) (effective 1/1/08; There is also a good faith defense a contract to any amended by HB 2745, effective based upon completion of I-9. contractor/subcontractor that has failed on 9/30/2008). Upheld by US "Employer" means any individual or to comply with the requirement imposed Supreme Court in Chamber of type of organization that transacts on all Arizona employers to enroll in Commerce of United States of business in the state, that has a and use E-Verify. "Government entity" America v. Whiting (May 26, license issued by an agency in the is defined as the state of Arizona and 2011). state and that employs one or more any political subdivision of the state that individuals who perform employment receives and uses tax revenues. services in the state. "Employer" also "Contract" is defined as all types of includes the state, any political government entity agreements for the subdivision of the state and self- procurement of services in Arizona employed persons. (regardless of what they are actually called). "Services" means the furnishing of labor, time or effort in the state by a contractor or subcontractor Arkansas N/A N/A N/A California AB 1236, Employment Prohibits State or other California Neither the state of California nor any Applies. Acceleration Act of 2011 (signed government entities from requiring a of its cities, counties, or special NOT REQUIRED Oct. 9, 2011) private employer to use E-Verify. districts can require an employer (other than a government entity) to use E-Verify as a condition of receiving a government contract, applying for or maintaining a business license, or as a penalty for violating licensing or other similar laws. SQUIRE, SANDERS (US) LLP WWW.SQUIRESANDERS.COM 439918/3/SANFRANCISCO
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