Vol. II, Issue 03 – June 24, 2011

In This Issue:

What is Temporary Labor Certification?
What are the Proposed Changes?
Anticipated Consequences for Employers Applying for H-2B Visas

What is Temporary Labor Certification?

Before employers can apply for permission to employ foreign workers under the H-2B Visa program, they must file for and obtain a temporary labor certification from the Department of Labor.  To obtain temporary labor certification, employers must demonstrate that (1) there are no qualified U.S. workers who are able, willing and available to take the job and (2) that employment of foreign workers under the H-2B Visa program will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The temporary labor certification process requires employers to recruit U.S. workers and demonstrate that U.S. workers are unavailable.  Employers must also submit a statement explaining why their need for foreign workers is temporary.  In particular, they must explain why their need for H-2B workers is (1) a seasonal need, (2) peakload ( a need which is tied to a recurring peak in demand), (3) an intermittent need, or (4) a need created by a one-time occurrence.

What are the Proposed Changes?

On March 18, 2011, the Department of Labor published several proposed changes to the temporary labor certification process, such as:

1. excluding from H-2B visa eligibility all employers who do not exercise “substantial, direct day-to-day supervision or control” over their employees,

2. excluding from H-2B visa eligibility jobs which require foreign workers to be employed for nine months or more, except in cases of a one-time employer need

3. reassigning responsibility for overseeing employer recruitment efforts to State Workforce Agencies (SWAs),

4. requiring employers to continue recruiting and accepting qualified U.S. workers until three days before the start date for H-2B workers,

5. giving the Department of Labor Certifying Officer (CO) the discretion to require the employer to conduct additional recruitment efforts,

6. adding a registration process which requires workers to prove that they have a temporary need before they can apply for temporary labor certification,

7. requiring the employer to guarantee that the total hours of paid employment for each H-2B worker in each four week period will equal three-quarters of the workdays in that period,

8. requiring the employer to pay transportation, subsistence and other costs for H-2B workers and U.S. workers who do not live near the place of employment.

Anticipated Consequences for Employers Applying for H-2B Visas

The proposed changes will make it significantly harder for employers to hire foreign nationals under the H-2B visa program.  For example, the proposed rules limiting program eligibility may make it impossible for many employers to obtain H-2B visas, including employers who do not have supervisory employees at specific job sites and employers who have a recurring need to employ foreign workers for nine months or more.   Even more troubling, these changes in H-2B visa eligibility are very broadly drafted, thereby giving the Department of Labor substantial discretion to deny temporary labor certification to many employers.

Moreover, reassigning to SWAs the responsibility for overseeing recruitment efforts is likely to cause processing delays, as previous SWA involvement in oversight produced significant delays.  Adding a registration process which must be completed prior to applying for temporary labor certification will further prolong the process of obtaining H-2B visas.  It will also create the additional burden of requiring employers to estimate their staffing needs six to seven months before the expected start date for H2-B workers.  Additionally, the Department of Labor has not provided any guidance to employers about which situations may cause the CO to require additional recruitment efforts, thereby limiting employers’ ability to plan for these efforts.

Equally problematic, requiring employers to guarantee that H2-B workers will receive pay for three-fourths of the workdays in each four-week period will place a huge financial burden on employers.  This burden will be further increased by the decision to define full-time employment as 35 instead of 30 hours per week.  Employers also face increased costs if they are required to pay transportation and subsistence costs for H-2B and U.S. workers who do not live near the place of employment.  Perhaps the most troubling is the requirement that employers accept qualified U.S. workers until a mere three days before the start date.  Since three days are often insufficient to make travel arrangements for H-2B workers, this proposed change may create situations where the employer’s need for H-2B workers is eliminated after the employer has already paid for foreign workers to travel to the United States.  Additionally, this requirement will create significant uncertainty about visa availability for the H-2B workers themselves.

Summary

If the Department of Labor implements the proposed changes to the temporary labor certification process, these changes will significantly increase the complexity of an already complicated process, producing substantial delays, increasing employer costs, and creating uncertainty about the likelihood of success.  The proposed changes will exclude many employers from eligibility for the H-2B program and make it exceedingly difficult for eligible employers to obtain H-2B visas.

FOR ADDITIONAL INFORMATION REGARDING THE CHANGES TO THE H-2B VISA PROGRAM PLEASE CONTACT US FOR A CONFIDENTIAL AND FREE CONSULTATION REGARDING THE H-2B VISA PROGRAM OR OTHER IMMIGRATION ISSUES.

In his 2011 State of the Union Address to Congress, President Obama described the United States as “first nation to be founded for the sake of an idea – the idea that each of us deserves the chance to shape our own destiny. That's why centuries of pioneers and immigrants have risk everything to come here...the future is ours to win. But to get there, we cannot stand still.” In response to President Obama’s State of the Union Address to Congress, throughout the month of May, leaders throughout the nation have banned together to help ease immigrants into the naturalization process. These leaders provide services to help newcomers learn English. Afterwards, the newcomers have moved on to start businesses and obtaining jobs in fields like the health care industry to allow them to utilize their skills they brought to our nation. The community leaders have also created intergenerational programs that bring the young and the elderly together to help learn about the citizenship process. These leaders have continued their goals to help develop a federal strategy on immigrant integration.

Our country has been founded by the hard work of immigrant people from around the world. The future immigrants of America see the core values of equality and opportunity as a message that we are here with open arms. The President’s vision is to have a successful integration in order to grow in the future, these leaders have not only done just that, but are paving the way for others to follow.

Vol. II, Issue 02 - February 02, 2011

Topics in this issue:

What is Senate Bill 1070?
What did Senate Bill 1070 Change?
House Bill 2162 to the Rescue?
Is Anti-Immigration the Future of Immigration Law?
What is Happening Nationwide?
Summary

What is Senate Bill 1070?

Senate Bill 1070 introduced rigid amendments into the legal framework of Arizona’s immigration law.  Under this Bill, which became state law in Arizona on April 23, 2010, a strict anti-immigration stance was manifest.  Provisions that once mirrored federal immigration law were modified to restrict the entry of illegal immigrants and impose harsher penalties in the event that certain protocol was not obeyed by immigrants currently living in Arizona.  Governor Jan Brewer approved of this proposed Bill which has been challenged since due to constitutional concerns and the most debatable provisions have been revisited by a successive bill that sought to undermine the punitive tone of Bill 1070.

What did Senate Bill 1070 Change?

Under U.S. federal law 8 U.S.C. §1306(a) and §1304(e) some immigrant aliens are required to both register with the government and carry their legal documentation with them.  If one is over the age of 14 and in the U.S. for more than 30 days, this requirement takes effect.  Senate Bill 1070 not only agreed with federal law in this regard, but augmented it in that persons under alien status without their documentation could be charged with a misdemeanour crime.  Police officers have an additional duty, under reasonable suspicion during a stop, arrest or another form of legal interaction, to verify the immigration status of persons with the federal government.

Senate Bill 1070 imposed a minimum fine of $500 for a first time offender and second time offender could find him or herself with up to a $1,000 fine and a maximum jail sentence of 6 months.  Without the verification of the person’s immigration status, he or she would be denied release.  Aliens determined to be lawful residents may present identification documents in the form of a state driver’s license, a non-operating identification license, state or federal issued identification or tribal enrolment cards. 
Similarly, a violation of criminal law occurred whenever one transported an alien to further his or her presence in the U.S. in addition to concealing, harbouring or shielding an alien, thereby encouraging or inducing the illegal immigrant to come to the U.S.  In the event that a person knows or recklessly disregards that the presence of the alien is illegal or would be if he or she migrated to the U.S., the above crimes have been intended.  When less than 10 immigrant aliens are involved a class 1 felony has been committed, but where 10 or more are involved, a class 6 felony is said to exist.  For each immigrant alien found in the commission of these crimes, a $1,000 fine is imposed on the offending party.  Transportation of illegal aliens is qualified by exceptions, including ambulance attendants, emergency medical services and child protective service workers. 

House Bill 2162 to the Rescue?

April 30, 2010 witnessed the passage of House Bill 2162 as a modifier of the stringent amendments introduced through Senate Bill 1070.  More specifically, Prosecutors in an effort to deter racial profiling would not prosecute cases presented whereby race, color or national origin was implicated in the complaint.  Similarly, lawful stops, detentions and arrests are a pre-requisite for police officers requesting documentation and they cannot simply inquire without lawful interaction occurring first.  The minimum fine for failing to carry legal documents was reduced from $500 to $100 and the imprisonment term was similarly reduced from 6 months to 20 days.  The House Bill appeared to soften the rigidity imposed by the original Senate Bill, while still permitting the amendments to exist.

Is Anti-Immigration the Future of Immigration Law?

Oddly enough, the changes in Arizona while causing much controversy and protesting has its supporters.  The passage of this bill gained support in Florida, Minnesota, Idaho, Nebraska, Oklahoma, Colorado, South Carolina, Missouri, Texas, Maryland, Pennsylvania, Rhode Island, Kentucky, Michigan, North Carolina, Virginia, Alabama, Massachusetts, Indiana, Georgia, Mississippi, Utah and Wyoming.  Among these states, some are currently entertaining the idea of similar legislation and others have passed their own version of Arizonian immigration reform.  While the public reaction to such immigration law reform has been volatile, polling shows that support is present nationwide.

What is Happening Nationwide?

Florida’s requirement that the police question suspected persons about their immigration status has been blocked by federal court.  Under proposed Floridian legislation, Canadians and Western are presumed to be residing legally in the state.

Not long after Arizona’s bill passed, Minnesota proposed similar legislation calling for a police crackdown by questioning those suspected of being in the state illegally to present evidence of their status.  Additionally, the Minnesota Illegal Immigration Enforcement Team would enforce this proposed bill by requiring immigrants to have their alien registration cards on their person at all times.

Senator Dean Mortimer anticipates Idaho introducing legislation similar to Arizona.  Idaho is also focusing on immigrants possessing documentation of their citizenship at all times and specifies that its concern is mainly with resources in that education and healthcare costs must be distributed to those who are legally residing in the state.

In Nebraska legislation was passed, which prohibited the hiring of illegal migrants and also disallowed property rentals to persons illegally residing in the state.  This law passed only after two months following Senate Bill 1070.

Oklahoma has witnessed similar results through House Bill 1804 whereby illegal immigrants are prevented from obtaining a driver’s license and government benefits.  Similarly, it is not simply a misdemeanour as in Arizona, but a felony to harbour, transport or shelter an alien in reckless disregard of the law.  A fine o f no less than $1,000 will be imposed and a prison term of no less than 1 year.  Upon lawful interaction with an illegal alien, the police here too are required to inquire about the person’s citizenship and report him or her to the Department of Homeland Security in the event that he or she is illegally in the state.

Colorado’s House Bill 1107 requires that police make a reasonable effort to determine the status of persons suspected to be illegally in the state.  The wilful incompletion or failure to carry an alien registration card would subject persons to criminal penalties.  The proposed legislation also makes it a crime to apply for work.

In South Carolina, the immigration reform is dually focused.  One bill is aimed at penalizing employers for hiring illegal aliens, while another is concerned with enforcing legal residency in the state.  In this sense, as is popular among most of the states considering immigration reform, the police must question persons when reasonable suspicion arises about their immigration status.

Missouri requires officers to inquire about a person’s immigration status upon arrest, which is not quite the same as Arizona permitting it whenever there is a lawful stop.  Missouri’s law, however, was passed before Arizona’s, which may have implications for amendments to Missouri immigration law in the future.

Texas is witnessing bills which would allow police officers to question suspected persons regarding their status in the state and require such persons to prove their citizenship.  The problem is particularly worrisome here, where the state is home to a heavy Hispanic population.

In Maryland as a measure to protect jobs, maintain border protection and prevent criminals from entering the state, delegate Pat McDonough soon after Arizona passed its controversial bill, sought to introduce legislation that would require police officers to question the status of suspicious persons.

Rhode Island in conjunction with federal authorities not only has police officers questioning suspicious persons, but if illegal aliens are found without documentation they may face not only fines or imprisonment, but also deportation.  In Michigan too, legislation was proposed to allow questioning suspicious persons when officers are investigating crimes.  Similarly, state Representative Julia C. Howard in North Carolina has advocated for Bill 1963, which would require all persons taking driving exams to take it in English and joint resolution 1349 would make it a crime for persons to not carry resident cards issued by INS.

Virginia like Arizona permits questioning of suspicious persons during any legal interaction with the police and not just after arrest.  In Alabama, proposed legislation would allow for the arrest of any illegal immigrants entering the state.  Similarly, in Massachusetts, state contractors must show that their workers are legally in the state and in the event that they were employing illegal immigrants, such contractors would be prohibited from engaging in business in the state. Those employing illegal immigrants could be reported through an anonymous hotline.  In like fashion, illegal immigrants would not qualify for state tuition rates and subsidized housing would be given to legal over illegal residents.

Indiana has also proposed legislation allowing for police officers to question the status of those under suspicion.  Businesses will also be penalized if caught employing illegal aliens by losing its business license upon the third offense.  Georgia following the steps of Arizona would have employers E-Verify the employment eligibility of employees, allow the police to question persons who have committed unlawful acts, impose penalties on persons hiding illegal aliens and make it more difficult for illegal aliens to apply for and receive government benefits.  Mississippi too has proposed legislation, which has been approved in the Senate, but is awaiting House approval.  This legislation would permit police to question those suspicious, as part of a greater effort to reduce spending in the millions on healthcare and education toward illegal immigrants.

In Utah efforts to reduce illegal immigration is being advocated by political figures.  Senator Stephen Sandstrom will lead the advocacy of using Arizona as a model for police to question persons under reasonable suspicion about their status in the U.S..  This again, like in Arizona, will extend to persons who are already engaging in a lawful interaction with the authorities, such as arrest or detention.

In Kentucky, Senate President David Williams advocating for Senate Bill 6, aspires for the passage of stricter immigration law to prevent Kentucky from becoming a portal for illegal immigrants, because neighbouring state are refusing or dissuading their presence by enacting legislation mirroring Arizona’s amendments.  Senate Bill 6 makes it a crime for illegal aliens to come into Kentucky and also permits police officers to question the immigration status of persons following lawful interaction.  The Senate voted to pass this bill by a vote of 24:14.

In Wyoming, House Bill 94 sponsored by Representative Pete Illoway, was ultimately rejected Monday January 24, 2011.  The Bill permitted arrests to be made by the police without a warrant when crimes had been committed by persons that would subject them to deportation.

In Pennsylvania, legislation similar to Arizona’s allowing for the questioning of persons suspected to be illegally residing in the U.S. was passed.  State Representative Daryl Metcalfe advocated for the Bill when it was proposed because of an estimate $700 million expenditure on healthcare, education and incarceration for persons illegally living in Pennsylvania.

Summary

With the expanding list of states advocating for and passing legislation that reflects an Arizonian legal framework the concern is that anti-immigration will be a wave for the future.  Whether it is fear as a contagion that is leading states to desire stricter immigration laws or the strain on the states’ resources, the future of immigration law seems to be moving further away from the federal government and into the realm of individual states.  Clearly issues of consistency present itself but in the end only time will tell where immigration reform is headed.  With the pending immigration debate it is to be determined whether the federal government will be able to regain control in the field of immigration law.

FOR ADDITIONAL INFORMATION REGARDING ARIZONA’S SENATE BILL 1070 PLEASE CONTACT US FOR A CONFIDENTIAL AND FREE CONSULTATION REGARDING ARIZONA’S SENATE BILL 1070 OR OTHER IMMIGRATION ISSUES.

Vol. I, Issue 31 - January 31, 2011

Topics in this issue:

Who Does Form I-9 Govern?
The Risk of Civil and Criminal Sanctions
What May be Reviewed Pursuant to an I-9 Audit?
When Should Form I-9 be Completed?
What if I Later Realize that I have Failed to Complete a Form I-9 and would like to do so?

Who Does Form I-9 Govern?

Under the Immigration Reform and Control Act of 1986 (IRCA), the regulation of illegal immigration was a focal point as it related to employment.  Employment was being used in this context to encourage unauthorized persons to come to the United States, because the hiring and continued employment of aliens known to be unauthorized workers by employers was prohibited.  In order to be compliant with the law, the verification of employment eligibility was mandated for all U.S. employers after November 6, 1986.  This verification was accomplished through the completion of Employment Eligibility Verification forms, namely Form I-9.  These forms not only applied to foreign persons seeking employment, but also to U.S. citizen employees.  It is the employer’s responsibility to verify both the employment eligibility and identity of the prospective employee.  Consequently, employers who do not comply with the Form I-9 requirement may be subject to not only civil sanctions, but also criminal penalties.

The Risk of Civil and Criminal Sanctions

As recently as October, 2010, the Secretary of U.S. Homeland Security, Janet Napolitano, articulated that under the Obama administration audits of more than 3, 200 employers were conducted by the Immigration and Customs Enforcement (ICE).  These audits resulted in the
imposition of approximately $50 million in fines for non-compliance with mandated worksite conditions. According to Napolitano, the collective audits and fines during this period extended beyond those conducted and imposed under the Bush administration.

This in turn has forecasted an augmentation in audits by ICE, which will extend to not only local corporations, but also national and multinational corporations.  To preclude the risk of civil and criminal penalties, the completion of Form I-9 for persons employed by these corporations is mandatory.  While under the Bush administration immigration raids were more prevalent, the Obama administration through the use of ICE will use audits as an alternative to the raids employed in the past.

In this context any employer found to be knowingly and wilfully employing unauthorized workers will be subject to punitive civil and criminal sanctions.  For instance, in December, 2008, IFCO Systems North America did not comply with the requirements to verify employment eligibility and paid a civil fine amounting to $20.7 million.  Criminal charges were also imposed because numerous IFCO managers entered a plea of guilty to the criminal allegations resulting from the failure to complete the I-9 verification form.

Similarly, in November 2008 Abercrombie & Fitch clothing stores were found in violation of Form I-9 requirements through its e-based I-9 filing system.  A settlement agreement was reached resulting in Abercrombie paying $1,047,110 in fines.  Additionally, as recently as December, 2010, Chipoltle eateries in Minnesota had to fire 50 employees resulting from deficient Form I-9’s.  Small businesses are also not immune from ICE.  Early 2011 witnessed a local Arizona restaurant violating Form I-9 with 4 of its employees and it was resultantly subject to penalties.

For each incomplete or erroneous I-9 Form, the penalties may range from $110 to $1,100 and this extends to clerical errors, including for instance a missing date or signature by the employer or employee.  The improper maintenance and storage of I-9 Forms may result in imposed fines anywhere between $110 and $3,000 per violation.  Once it has been determined that an employee is an unauthorized worker, the continuation of hiring or employing unauthorized employees may result in a fines ranging from $250 to $11,000.  In addition to these fines, prison terms may also be imposed.  ICE announced that 2010 was a record-breaking year for its issuance of fines to companies of all sizes.

What May be Reviewed Pursuant to an I-9 Audit?

Attendant with I-9 Form audits is the review of not only the existence or lack thereof of Form I-9, but also the organization’s payroll records, W-2 reports and supplementary documentation.  Supplementary documentation may extend to fraudulent papers used to fictionally prove authorized employment and the identity of the unauthorized employee.  ICE need only provide the organization with its intention to audit by three day notice prior to reviewing its files.

When Should Form I-9 be completed?

The First Section of Form I-9 must be completed by a prospective employee prior to his or her first day at work.  This is followed by the Second Section, which involves the employer’s verification of an original document offered by the prospective employee, which has not yet expired.  Documentation under this category that establishes both identity and employment eligibility may extend to the following:

Documentation that may establish identity alone may include, but is not limited to:

Documentation that may establish employment eligibility alone may include, but is not limited to:

It is advisable that employers attach any documentation supplied by prospective employees, irrespective of it not being required by the Immigration Reform and Control Act.

When an authorized employee is approaching the expiration of valid employment, Section Three of the I-9 Form must be completed to effect re-verification of an eligible employment status.  This must be done before the Form I-9 for the period under which employment was authorized expired, so that authorized employment may be validly extended.  A record of Form I-9 must be maintained for three years or in the event that the employee and employer sever ties, one year, whichever period may be longer.

What if I Later Realize that I have Failed to Complete a Form I-9 and would like to do so?

Employers that have failed to comply with Form I-9 requirements for persons currently employed with them should complete a Form I-9 at the time that the deficiency is discovered.  It must be dated on the date that it was signed.  The date should not reflect dates prior to the employee’s start date.  Such an error may result in greater exposure to liability and the ultimate imposition of greater sanctions if detected by ICE because of fraudulent information.