11. I-9 & E-Verify States and Municipalities Requiring E-Verify
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Notas del editor
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Recent Trends Huge delays on permanent side of family-based/employment immigration (i.e., green cards) particularly for certain nationalities (Chinese, Indian, Mexican, Philippine), and for employment green cards based on Bachelor’s degree as minimum requirement. EB3: All countries is 6/1/2004, China is 9/22/03, India is 1/1/02 EB2: All Countries current, China/India 3/1/06 Losing our well-educated immigrant population to Australia, Canada, China, India. Bill Gates’ comment about every foreign PhD who graduates in US should get automatic green card. Little chance of comprehensive immigration reform until after mid-term elections, and even then, low probability. Despite delays, upturn in companies’ localizing foreign nationals and obtaining green cards—potentially less expensive than sending employee back; benefits for family/business medical/pharma services, universities, hospitals and technology companies 2. Different story on temporary (nonimmigrant) side of US immigration : Only 27,300 H-1B petitions were submitted to DHS out of 65,000 Regular Caps/20,000 under Advance Degree Exemption In past year (2009), quota remained open until 12/21/09; prior year quota reached on 4/8/08 (eight days after it became open). 3. Outbound Immigration of U.S. employees Long gone are days of traditional expatriation to US—too expensive seeing upturn in temporary transfer of U.S. employees to work in other countries 4. Increased DHS scrutiny at airports and border (Canadian/Mexican) Difficulty of retaining green card when employee transferred back Reentry permit; need to continue to file U.S. tax returns; intent issues; increased scrutiny where no reentry permit obtained.
B-1 Business Visitor : Problem is application of law versus reality: frequent U.S. business trips, while completely legitimate and permitted by law, may lead to increased inspection, delays, hassles, and worse. Need to prep FN before travel; review what they are carrying with them; possibly provide entry letter.
Security Checks : All nonimmigrants subject to criminal checks (fingerprint) when applying for U.S. visa stamp May also be subject to security checks which can lead to substantial delays, and possible job loss Security checks mandated for T-7 countries (Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria) and 26 other countries (Afghanistan, Algeria, Bahrain, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates, and Yemen). Additional security checks based on proposed U.S. work, and whether FN’s work will involve critical field on “Technology Alert List” (TAL). The TAL includes such fields as advanced computers/microelectronic technology, engineering, materials technology, information security, chemicals, biotechnology, and biomed engineering. Based on dual use, need to be proactive prior to encounter with US Consul to demonstrate no sensitive national security interest nor any military, nuclear energy or arms applications
Because of increased sharing of criminal databases, FNs being detained or denied entry because of convictions that occurred many years ago. Specifically, in 2008, Canadian Mounties and U.S. FBI shared criminal databases leading to increased scrutiny at border, even where FN may not have had an issue in the past Recent examples include shoplifting, DUIs, assault resulting from a rugby bar room brawl, admitted drug use in the course of an AOS medical examination that because of the worldwide sharing of security and criminal checks The 212(d)(3) waiver is available for most criminal inadmissibilities for a nonimmigrant visa application and is relatively straightforward to obtain Higher bar of proof for waivers of inadmissibility for immigrant visas.
In this era of increasing DHS scrutiny and public out-cry concerning undocumented workers, we provide our clients with the necessary information and tools to ensure compliance with all immigration-related regulations. Pre-emptive I-9 compliance, and if applicable E-Verify, is really the first line of defense. We: Draft corporate I-9 and E-Verify policies; Offer comprehensive training in I-9 completion and the E-Verify system; Provide support for questions that arise; Conduct I-9 compliance audits, which is particularly important before employer signs up for E-verify or IMAGE Provide relevant I-9 E-Verify requirement updates (form revisions, documentation changes) Perform E-Verify registration Partner with our case management system provider to provide online I-9 and E-Verify system called GUARDIAN.
Some Recent Trends in this area: In 2009, ICE began implementing a new strategy to reduce illegal employment through employer audits. We are seeing increasing employer participation in the IMAGE program (ICE Mutual Agreement between Government and Employers), which has existed since 2007. We do not recommend that our clients participate in this program because it requires employers to undergo an ICE I-9 audit without any safe-harbor against discovered violations. So, why the increase in employer participation? We speculate that employers choose to participate to increase favorable public opinion – “Look! We don’t hire illegals!” At end of July, DHS finally, officially approved the electronic completion and storage of I-9s, which is essentially a codification of existing employer practice. DHS is conducting another sort of employer audit, H-1B site visits, wherein a DHS agent visits the employer to ensure that H-1B employees are actually working at the employer site and being paid the wage stated in the H-1B petition. Last but not least, E-Verify is becoming more prevalent.
We expect to see a continued trend toward requiring employers to E-Verify There is some talk that Obama administration will use mandatory e-verify for all employers as a bargaining chip to engender conservative buy-in for comprehensive immigration reform. Currently, Federal contractors and sub-contractors, as indicated here, are required to E-Verify. Increasingly, states and municipalities are requiring employers to E-Verify. Employers tend to take a whole-hog approach to E-Verify, registering the entire company for E-Verify when forced to do so by the State or municipality of a certain branch or office. How bad is EVerify? Really, clients do not experience too many problems with the system. No more than when a foreign national employee goes to apply for a SSN. The main complaint is having one more thing to do during the on-boarding process, training, etc.
Hiring What can you ask? Inquiry can be made orally or on employment application Key point is that same inquiry be made of all applicants for employment Information not used to discriminate on basis of national origin or citizenship status. Applicant answers yes/no to questions regarding employment eligibility. Recruiter/HR cannot seek additional information until hiring (I-9 process). Applicant answers “no/yes” or “yes/yes” on application. Recruiter/HR can ask applicant if she/he requires sponsorship. Employer/ Recruiter can inquire about Applicant’s specific status or examine actual documentation, but should not specify which documents. If based on a review of documents, and consultation with outside immigration counsel, Employer/Recruiter determines to proceed with sponsorship, then and only then should offer be extended. If, alternatively, Applicant falsely answers Employment Application stating he/she has necessary work authorization, Employer can revoke job offer that has been extended. US payroll – All H-1B petition, green card applications Foreign payroll – can be accommodated for most other nonimmigrant petitions. Termination Withdraw L-1, O-1, E-1/2 petitions immediately (not required under law). While no DHS sanction for failing to notify DHS of termination, under DOL regs, only way to end continuing wage obligation. Contact immigration counsel to file appropriate withdrawal request Reasonable costs of return transportation: If terminate an H-1B or O-1 prior to expiration of the petition, Employer must pay for the reasonable cost of one-way return transportation for the ex-employee only to home country or country of last residence. Approved PERM applications and I-140 approval w/o I-485 filing or if I-485 not pending more than 180 days: withdrawing these may cause ex-employee to have to leave the U.S. immediately. Common to leave these pending even after termination. Grace Period Myth H-1Bs : Universal but incorrect notion that FN can remain lawfully in the U.S. for up to 60 days after employment termination, expiration of validity date, or DHS denial. All that exists is 10 day period before visa issuance/after expiration, but FN cannot work during 10 days. J-1s : 30 day grace period for packing up/preparing for departure, but not for working. F-1 students : 60 day grace period for preparing for departure, but not for employment. Leave of Absence Concern mostly arises with an H-1B employee and impact on wage obligations Involuntary: If employee benched for business purposes, employer must continue to pay H-1B wage. Voluntary: (FMLA leave, non-compete periods between jobs, extended travel). Employer is not required to continue to pay H-1B wage. Documentation of Voluntary leave: Letter in personnel file, signed by employee stating that requesting a personal leave of absence, stating the specific reason and intended length of absence.
Hiring What can you ask? Inquiry can be made orally or on employment application Key point is that same inquiry be made of all applicants for employment Information not used to discriminate on basis of national origin or citizenship status. Applicant answers yes/no to questions regarding employment eligibility. Recruiter/HR cannot seek additional information until hiring (I-9 process). Applicant answers “no/yes” or “yes/yes” on application. Recruiter/HR can ask applicant if she/he requires sponsorship. Employer/ Recruiter can inquire about Applicant’s specific status or examine actual documentation, but should not specify which documents. If based on a review of documents, and consultation with outside immigration counsel, Employer/Recruiter determines to proceed with sponsorship, then and only then should offer be extended. If, alternatively, Applicant falsely answers Employment Application stating he/she has necessary work authorization, Employer can revoke job offer that has been extended. US payroll – All H-1B petition, green card applications Foreign payroll – can be accommodated for most other nonimmigrant petitions. Termination Withdraw L-1, O-1, E-1/2 petitions immediately (not required under law). While no DHS sanction for failing to notify DHS of termination, under DOL regs, only way to end continuing wage obligation. Contact immigration counsel to file appropriate withdrawal request Reasonable costs of return transportation: If terminate an H-1B or O-1 prior to expiration of the petition, Employer must pay for the reasonable cost of one-way return transportation for the ex-employee only to home country or country of last residence. Approved PERM applications and I-140 approval w/o I-485 filing or if I-485 not pending more than 180 days: withdrawing these may cause ex-employee to have to leave the U.S. immediately. Common to leave these pending even after termination. Grace Period Myth H-1Bs : Universal but incorrect notion that FN can remain lawfully in the U.S. for up to 60 days after employment termination, expiration of validity date, or DHS denial. All that exists is 10 day period before visa issuance/after expiration, but FN cannot work during 10 days. J-1s : 30 day grace period for packing up/preparing for departure, but not for working. F-1 students : 60 day grace period for preparing for departure, but not for employment. Leave of Absence Concern mostly arises with an H-1B employee and impact on wage obligations Involuntary: If employee benched for business purposes, employer must continue to pay H-1B wage. Voluntary: (FMLA leave, non-compete periods between jobs, extended travel). Employer is not required to continue to pay H-1B wage. Documentation of Voluntary leave: Letter in personnel file, signed by employee stating that requesting a personal leave of absence, stating the specific reason and intended length of absence.
Corporate Restructuring Employer changes corporate structure (merger, acquisition, spin-off, or other such action)—very broadly defined. H-1B context: No need to file new petitions/LCA for employees transferred to new employing entity if new employing entity succeeds to interests and obligations of first employer (enough that first employer succeeds to immigration related obligations). Changes in Employment The employer will be required to file a new petition for nonimmigrant if changes in employment are material/substantial. Changes that might require a new DHS filing or LCA: Lateral move, promotion, change in title, relocation of employment, material change in duties, a reduction in pay. Reduction in Workforce Lay-offs or other workforce reduction tactics may affect an employers attestations in H-1B filings or PERM applications. Consult with outside immigration counsel if a lay-off or other reduction activity takes place to ensure appropriate measures are taken.
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