Posted On: June 26, 2008

Drawbacks of the E-Verify Program

In my previous blog entry, I informed you of the E-Verify program instituted by the Federal Government. The Federal Government is requiring all of its contractors to utilize this system for employment verification of their employees. Even though this is a positive first step in ensuring that employers comply with legal hiring practices, the E-Verify system does have its drawbacks.

All participating employers are required to enter personal information from Form I-9 into the government database in order to submit a query to verify a new hire’s employment eligibility. All employers who sign up with E-Verify must manually enter this key information into the government database and wait for a response that will take approximately three (3) to five (5) seconds. Although this may seem like a simple task, there is a great chance for human error. If an employer enters the wrong data into the query, and in return receives a TNC or a mismatch, the employee is required to fix the problem, either in person or over the telephone with either the SSA or USCIS, to confirm their work authorization. This TNC or mismatch turns into a headache for the employee as well as the employer. Accordingly, there is a strong possibility that people that are legally authorized to work in the U.S. may be denied because of simple human data error.

Additionally, as with any Internet based computer programs, there is a possibility that the “system” could go down due to receiving too many queries at one time, or due to minor computer system glitches. However, the USCIS claims that E-Verify has the capacity to handle up to 60 million queries per year, and promises that it will continue to work to update the current pilot architecture to handle more queries if needed.

In addition, this program puts extra burdens on employers. Employers must have internet access in order to submit a query through E-Verify. Employers who do not already have existing Internet services must obtain them if they would like to enroll in E-Verify. Essentially, the employment eligibility program is a burden for those employers who wish to utilize E-Verify in the restaurant industry, retail stores, fast food chains, etc.

Furthermore, there have already been complaints of legally authorized workers receiving mismatches, or a TNC because a name change was not reported to the SSA, or because the employee had just been naturalized and the program had not been updated to reflect the recent change in status. At this time, the USCIS has reported that E-Verify does an automatic check of DHS naturalization records, and if no record is found, allows employees to call USCIS to correct their record rather than travel to a SSA office to contest the issue. Accordingly, there is still room for error.

Furthermore, employer participation in E-Verify does not provide a safe harbor from worksite enforcement, or more typically known as an ICE raid, conducted by the Immigration Customs Enforcement Team. However, an employer who verifies employment eligibility through E-Verify will have assumed to have not knowingly hired an unauthorized alien. Nevertheless, employers may still be given excessive fines if unauthorized workers are found during an ICE raid.

*E-Verify cannot be used for employees who do not yet have a Social Security Number (“SSN”) As an employer, you should not submit the query until you have obtained the employee’s SSN; however, you should complete all other necessary information on Form I-9.

Posted On: June 25, 2008

Extension of Optional Practical Training Program under the E-Verify Program & E-Verify Requirement for Federal Contractors

According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

Posted On: June 24, 2008

E-Verify – What is it?

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is a free Internet based system that electronically verifies the employment eligibility of newly hired employees. The verification program has existed for more than a decade, but is now being promoted by the Bush administration as a Homeland Security and Immigration control measure. The program is operated by the Department of Homeland Security (“DHS”) in partnership with the Social Security Administration (“SSA”). The U.S. Citizenship and Immigration Services (“USCIS”) is the agency in DHS responsible for administering the program. USCIS promotes the program as an essential tool for employers committed to maintaining a legal workforce. The program is easily accessible through a user-friendly government Web site, which allows employers to verify employment eligibility in three (3) to five (5) seconds. The program essentially compares employee information taken from Form I-9 with more than 444 million records in the SSA database, and more than 60 million records in DHS immigration databases.

Essentially, once enrolled, an employer must initiate a query by entering key information from Form I-9 into the E-Verify database within three days of an employee starting work. The key information that must be entered includes: the employee’s name and date of birth, social security number, the citizenship status he or she attests to, and the type of document provided on Form I-9 to establish work authorization status. Additionally, the following would be entered in the initial query, if applicable: an A number or I-94 number, and proof of identity, and its expiration date. Once the information is entered into the query, the employer will submit the query and wait a few seconds for a response. Depending upon the response, the employee will continue to work for the employer, or they will contest a Tentative Non-confirmation (“TNC”) or mismatch with the appropriate federal agency within eight federal business days. If the program issues a final non-confirmation, the employee shall not be further employed.

E-Verify is an entirely voluntary program, as such the government may not mandate its use by the states, according to the tenth amendment of the U.S. Constitution. However, some Federal Government employers and violators of certain immigration laws may be ordered to participate.

Under E-Verify, Employees have Rights Too

Quick lists of Employee rights are available online at at the USCIS website and downloadable in eight different languages. Some of the key points are summarized below. Not only must employers post a notice informing employees of their use of E-Verify, they must also only use E-Verify after hire and after completion of the Form I-9, that way employees are protected from pre-screening discrimination practices. Additionally, if an employee receives an information mismatch, the employer must provide the employee with the necessary information to challenge the mismatch, including a written notice generated by E-Verify, and allow him/her eight federal government work days to contest the mismatch. Most importantly, the employer may not take any adverse action against an employee because he/she contests the mismatch; this includes firing, suspension, withholding pay or training, or otherwise infringing upon his/her employment.

Posted On: June 24, 2008

Department of State introduces "Student Intern" J-1 Visa Category

On June 20, 2008, the Department of State (DOS) revised its regulations governing J-1 visas by publishing the final rulein the Federal Register. The rule creates a new “Student Interns” subcategory to the College and University Student J-1 visa category. Foreign students enrolled and pursuing a degree at post-secondary academic institutions outside of the United States may participate in this category for up to 12 months at each degree level. DATES: This Final Rule will be effective July 21, 2008.

This new rule will make it possible for private sector organizations to offer internships to individuals with less training and experience than had previously been required of J-1 ``trainee'' category participants. To be eligible as an intern in a private sector program, foreign nationals must be currently enrolled in and pursuing studies at an academic institution or a recent graduate (i.e., within 12 months) from such institution. As an intern, the intern program participant will enter the United States to pursue a structured and guided work-based internship program in his or her specific academic field. Prior work experience is nor a requirement for participation in this program.

Sponsors of J-1 interns will be required to ensure that host organizations are legitimate entities, are appropriately registered or licensed to conduct their business, and possess and maintain the ability and resources to provide structured and guided work-based experience according to individualized Training and Internship Placement Plans. The Final Rule permits a student intern to engage in full-time employment during the internship program as outlined on the T/IPP, with or without wages or other compensation. Employment is not required for participation in the program. A student intern may be employed, however, only with the approval of the responsible officer and the student's home institution's dean or academic advisor.

These regulations prohibit a sponsor from placing a student intern in an unskilled or casual labor position, in a position that requires or involves child care or elder care, in a position in the field of aviation, or in any kind of position that involves patient care or contact. Finally, a sponsor must not place a student intern in a position that involves more than 20 per cent clerical work.

Posted On: June 20, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 3 of 3

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you are the beneficiary of an employment-based third preference I-140 petition, as a citizen of India, with a priority date of March 1, 2005, your child would automatically have the same priority date. At the time of filing, your child was 16 years old. Once again you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for the employment-based third preference category for citizens of India. Accordingly, applicants currently have a wait of approximately seven (7) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of November 1, 2001. Therefore, by the time the visa number will be available, your child will be 23 years old. Then, you must subtract from that age, the result of a second formula.

The second formula requires you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-140 petition was filed on March 1, 2005, and then approved on March 27, 2006. The computation of those two dates would be a period of approximately 1 year. This only brings your child’s age down to 22. (23 years of age – 1year = 22) Therefore, your child has “aged-out” even with the help of the CSPA. Retrogression of employment-based visa numbers has severely limited the ability of the CSPA to help the derivative children of employment-based petitions.

If the facts were different, and your child did not “age-out”, he/she would still have to apply for permanent residence within one year of the priority date being current in order to be protected under the CSPA. Otherwise, the child would “age-out” and subsequently be denied.

Posted On: June 19, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 2 of 3

The CSPA protects family-based 2(A) preference children of Permanent Residents

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. The CSPA applies to children of Lawful Permanent Residents (“LPR”) if Form I-130 (Petition for Alien Relative) is filed on their behalf. To qualify under the CSPA, the child of the LPR must be “under age 21” as defined by the CSPA (and unmarried) at the moment that s/he obtains immigrant status. Specifically, if the Immigrant petition is filed by an LPR and the immigrant petition is approved and the priority date becomes current before the applicant’s “CSPA age” reaches 21, the child will not “age-out.” In order for CSPA coverage to continue, the child must apply for permanent residence within one-year of the date the priority date became current.

The calculation of the CSPA age involves two formulas. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you filed an I-130 petition on behalf of your child on July 22, 2005, when your child was 14 years old, and a citizen of India, you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for all family based preferences in all countries listed in the bulletin. Accordingly, applicants in the second preference (A) category who are citizens of India, currently have a wait of approximately five (5) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of July 15, 2003. Therefore, by the time the visa number will be available, your child will be 19 years old. Then, you must subtract from that age, the result of a second formula.

Secondly, in utilizing this formula, you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-130 petition was filed on July 22, 2005, and then approved on July 27, 2007. The computation of those two dates would be a period of approximately 2 years. Therefore, the child’s CSPA age would be 17, and he/she may qualify for benefits under the CSPA. (19 years of age – 2 years = 17 CSPA age) However, the child must file for permanent residence within one year of the priority date being current, or they will not remain a child for purposes of the permanent residence application, and subsequently, they will be denied.

Posted On: June 18, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 1 of 3

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence on the date of enactment to benefit from the CSPA. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. The child will not ‘age out.’ The child will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to August 6, 2002 on an application for permanent residence in which the applicant claimed to be a child.

Posted On: June 17, 2008

Supreme Court Holds that Those Granted Voluntary Departure Can Seek Reopening

Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

The Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period "to safeguard the right to pursue a motion to reopen." The Supreme Court rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

Case Summary:

Samson Taiwo Dada (Petitioner) was placed in removal proceedings in 2004. While his removal proceedings were pending, his United States citizen wife filed an immigrant petition (I-130) on his behalf. The immigration judge presiding over the case denied Mr. Dada's request for a continuance pending adjudication of the I-130 petition and entered a voluntary departure order. Thereafter, Mr. Dada filed an appeal with the Board of Immigration Appeals (BIA) that was denied and Mr. Dada was ordered by the BIA to depart within 30 days.

Before the expiration of his voluntary departure period, Mr. Dada filed a motion to reopen and reconsider his removal and to stay his removal pending the decision on his motion to reopen with the BIA. Additionally, in his motion, Mr. Dada asked for the withdrawal of his request for voluntary departure. After the voluntary departure period had expired, the BIA denied Mr. Dada’s motion stating that his overstay made him ineligible for adjustment of status under INA § 240B(d). Mr. Dada petitioned for review to the Court of Appeals for the Fifth Circuit.

While Mr. Dada’s appeal was pending, the Fifth Circuit held in Banda Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006), that a motion to reopen does not toll the voluntary departure period. Thereafter, the Fifth Circuit denied Mr. Dada's petition for review. The Supreme Court granted certiorari to consider the following question: "Whether the filing of a motion to reopen removal proceedings automatically tolls the period within which an alien must depart the United States under an order granting voluntary departure." After oral argument, the Court ordered the parties to brief the following questions: "Whether an alien who has been granted voluntary departure and has filed a timely motion to reopen should be permitted to withdraw the request for voluntary departure prior to the expiration of the departure period."

Supreme Court Decision:

In a split 5-4 decision, the U.S. Supreme Court ruled in favor of a Mr. Dada. In his majority opinion, Justice Kennedy wrote, "The issue is whether Congress intended the statutory right to reopen to be qualified by the voluntary departure process." Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, an illegal immigrant is granted one motion to reopen a hearing. If, however, after being found removable, the illegal immigrant seeks to voluntarily leave the country, thus making it easier to obtain an immigration benefit in the future, he must do so within 60 days. If the facts of the case change and the immigrant seeks to reopen his/her proceeding, by leaving the United States his/her motion to reopen will be deemed withdrawn. Moreover, if in attempting to preserve his/her motion, the immigrant fails to leave, the immigrant will become ineligible for certain kinds of relief, and subject to a 10 year bar on immigration to the United States. Mr. Dada argued that by filing a motion to re-open the proceedings, the 60 day time period to live in the country was tolled. However, the majority of the court disagreed. The court, however, also rejected the government's contention that an immigrant's decision to leave voluntarily is a surrender of the ability to re-open a proceeding. In the decision, Justice Kennedy wrote "the conflict between the right to file a motion to reopen and the provision requiring voluntary departure no later than 60 days remains untenable." "Absent a valid regulation resolving the dilemma in a different way, we conclude the alien must be permitted an opportunity to withdraw the motion for voluntary departure, provided the request is made before the departure period expires."

In a dissenting opinion, Justice Antonin Scalia objecting to the decision on grounds "the court lacks the authority to impose its chosen remedy."

Posted On: June 13, 2008

Maintaining PERM AUDIT Files

It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.

The key elements of an employer’s audit file should include the following:

1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application

2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application- If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created

3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice

4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient

5. Proof of job order placement
A copy of the State job order print document will be adequate

6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees

If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file

7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file

8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads
- copies of the newspaper pages in which the advertisements appeared will suffice
- if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate

• Job Fairs
- a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient

• Employer’s Web site
- a dated copy of the page from the website that advertises the occupation involved will suffice

• Job Search Web site (other than employer’s)
- a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate

• On-Campus recruiting
- copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient

• Trade or professional organization journals/newspapers
- copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice

• Private employment firms
- copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate

• Employee referral program with incentives
- dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient

• Campus placement offices
- a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice

• Ads in local and ethnic newspapers
- copies of the newspaper pages in which the advertisements appeared will suffice

• Radio and Television advertisements
- a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired

Continue reading " Maintaining PERM AUDIT Files " »

Posted On: June 12, 2008

UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.

Posted On: June 11, 2008

Maintaining an H1B Audit (Public Access) File

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Audits may occur due to former employee complaints, randomly or on a profile basis. For a random audit, the DOL simply selects an employer to audit. However, a profile audit occurs when the DOL discovers a significant variation of offenses in a particular industry/area and the employer is part of the same industry/area, or the DOL has a profile for violators and the employer meets the profile. Evidently, an employer should expect an audit at some point because it is the DOL’s intent to eventually audit everyone who files LCAs.

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (ex. Employment offer/agreement);
• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale);
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from;
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
• If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing this information should be within the file

Posted On: June 10, 2008

Maintaining a I-9 AUDIT Files

EVERY employer needs to complete I-9 forms for every employee hired after November 4, 1986. Under the Immigration Reform and Control Act of 1986 (“IRCA”), all employers must verify that every person that is hired is either: a U.S. citizen, a lawful permanent resident, or a foreign national with authorization to work in the U.S. Within three business days of beginning the job, the employee must furnish identity and employment eligibility documents. It is the responsibility of the employer to examine the documents to determine whether they are genuine and relate to the specific employee. Once the I-9 form is completed, they are to be kept in office for the longer of three years after employment begins or one year after employment is terminated. Most importantly, if an employee has temporary employment authorization, a reverification of employment eligibility must be conducted prior to expiration of the employment authorization. Moreover, officers of the Department of Homeland Security (“DHS”) and Immigration Customs Enforcement (“ICE”) have the right to audit employers’ I-9 forms. DHS/ICE officers conduct an estimated 60,000 I-9 audits a year on employers around the country and have issued fines in excess of $1,000,000. Additionally, each mistake on an I-9 Form counts as a separate violation. All employers are further subject to civil and criminal penalties for knowingly hiring or continuing to employ aliens who are not authorized to work in the U.S. Accurate completion of I-9 forms is a good faith defense to a charge of hiring unauthorized workers.

ICE has increasingly been conducting workplace raids that can have a significant impact on an employer and its workers regardless of status. Results of those raids have been: public relations nightmares, fleeing or arrested workers resulting in loss of work force, loss of productivity, split up families and related humanitarian issues, as well as expensive and protracted litigation. Therefore, the best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system.

Such a system should include at least the following elements:

• Education and training of all human resource personnel on the purpose and requirements of IRCA
• Establishment of a scheduling system to automatically remind an employer when reverification of a temporary workers’ employment authorization is warranted
• Conducting a thorough, annual review of all employee I-9 forms (discarding forms and documentation when necessary, noting re-occurring problems for purposes of future staff training; correcting forms with information supplied in employee personnel files, etc)

As always, it is better to be prepared before ICE comes knocking on the door!

Posted On: June 9, 2008


In July of 2007, the U.S. Citizenship and Immigration Services (USCIS) received a record 460,000 applications for naturalization. Moreover, for 2007, the USCIS received 1.4 million naturalization applications. This is double the normal annual volume. As a result of the record volume of applications, the USCIS announced in April
of this year that depending on the region that an applicant’s citizenship application was filed, it was taking the USCIS at least five to fourteen months. As a result, over the past few months, the USCIS has increased the number of officers adjudicating naturalization applications. Moreover, USCIS just announced that it will centralize the initial naturalization processing. Hopefully, these changes speed up the process for the thousands of individuals who are waiting to become citizens.

Posted On: June 5, 2008

Changes To Visa Waiver Program - DHS Announces Pre-Travel Authorization Program for U.S.-Bound Travelers from Visa Waiver Countries

The U.S. Department of Homeland Security (DHS) announced on June 3, 2008 the Interim Final Rule for the Electronic System for Travel Authorization (ESTA), a new online system that is part of the Visa Waiver Program (VWP) and is required by the Implementing Recommendations of the 9/11 Commission Act of 2007.

“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S. without a visa,” said Homeland Security Secretary Michael Chertoff.

Once ESTA is mandatory, all nationals or citizens of VWP countries who plan to travel to the United States under the VWP will need to receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. The requirement will go into effect January 2009.

Currently, citizens of VWP countries complete a written I-94W form providing basic biographical, travel, and eligibility information while en-route to the U.S. With ESTA, VWP travelers will provide this information online prior to departure for the U.S.

ESTA will determine if an individual is eligible for VWP travel, and if such travel poses any law enforcement or security risks. ESTA applications may be submitted at any time prior to travel, and once approved, will be valid for multiple entries for up to two years or until the applicant’s passport expires, whichever comes first. DHS recommends ESTA applications be submitted as soon as an applicant begins planning U.S.-bound travel, and not less than 72 hours prior to travel.

On Aug. 1, 2008, the department will begin to accept voluntary applications through the ESTA Web site (At the time of writing this entry, the ESTA website was still under construction). More information on ESTA can be found at the CBP Website. .Until ESTA is mandatory for all VWP travelers next year, however, ESTA applicants will also still need to complete an I-94W form en-route. The Secretary of Homeland Security is anticipated to publish a notice in the Federal Register by mid-November 2008, announcing implementation of mandatory ESTA requirements on Jan. 12, 2009.
For DHS Secretary Michael Chertoff’s June 3, 2008 remarks on ESTA please visit the DHS website.

Posted On: June 5, 2008

PERM Business Necessity Audits

The employment based permanent residency or “green card” process is a three step process. The first step in this process is called Labor Certification. As of March 28, 2005 all Labor Certification applications are filed through the online PERM process. The Since April of 2007, immigration attorneys have reported a significant increase in the number of PERM audit notifications issued by the US Department of Labor (DOL).

PERM audits are either randomly issued or are triggered by mechanisms installed in the PERM program by the DOL. In order for an employer to file a successful labor certification application, a U.S. employer must establish that no U.S. workers (either U.S. citizens or permanent residents) were available for the position. The DOL requires U.S. employers to conduct a recruitment campaign prior to filing a PERM based labor certification application. If the DOL deems the U.S. employer’s job requirements to be excessively restrictive to U.S. workers, an audit request is issued. In most instances, an audit will be triggered if an employer’s job requirements do not comply with the Department of Labor’s specific vocational preparation (SVP) guidelines as set forth in the O*NET. For example, if the DOL has set a SVP of “7<8” for the software engineer position. According to the DOL’s SVP guidelines, the maximum vocational preparation for this position is 4 years. The DOL equates a bachelor’s degree to 2 years of vocational preparation and a master’s degree to 4 years of vocational preparation. Therefore, if an employer’s requirements for a software engineer exceed either a bachelors degree in the field and 2 years of experience or a masters degree in the field an 0 years of experience, the requirements would be considered excessive by the DOL.

The majority of the recent PERM audits are a direct result of employer’s exceeding the DOL’s SVP requirements. Most of these audits require employers to establish “business necessity” for the job requirements exceeding the SVP. In accordance with Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and 20 CFR § 656.17(h), "To establish a business necessity, an employer must demonstrate the duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner." Therefore, when responding to business necessity related audit requests, the employer must provide the DOL with evidence that proves that the employer’s requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer could include evidence of its past hiring practices and describe its operations in detail to justify that the requirements are needed to perform the duties of the position to fulfill the employer’s business needs.

Posted On: June 4, 2008

FY2009 H1B Cap Filing Update

U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS conducted the computer-generated random selection processes on H-1B petitions to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.

USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. Petitioners whose properly filed petitions have been selected should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.

USCIS has “wait-listed” some H-1B petitions, they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.

For more information, visit the USCIS website.