Immigration Update Gregory A. Wald Topics Updates and procedural - - PDF document

Gregory A. Wald

Immigration Update

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

8 2 10 9

2 4 6 8 10 12 2008 2009 2010 2011 2012 2013 2014

65,000 + 20,000 H-1B Visas

Look Familiar?

6

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?

• AB 263 – Prohibits retaliation

for unfair immigration-related practices

Includes new Labor Codes section

1024.6:

– An employer may not discharge an

employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his

• r her personal information, unless

the changes are directly related to the skill set, qualifications, or knowledge required for the job.

Conflict with honesty policy and

possible constructive knowledge

• AB 60 – Driver’s Licenses for

undocumented

Can obtain D.L. with affidavit: not

eligible for SSN and cannot provide proof of valid status

Issued ID with “DP” (driving

priveledge) but not “DL”

Not acceptable for I-9 or federal

benefits, or voter registration

What about those in valid status

(A, H, L,O, TN, etc) that eligible for “DL” – placed in same class?

Takes effect January 1, 2015 with

possible implementation sooner

California Enters the Immigration Circus

9

Form I-9 Redesigned

10

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

500 1000 1500 2000 2500 3000 3500 FY 09 FY 09 FY 10 FY 2011 FY 2012 I-9 Inspections Source: DHS

Anatomy of an ICE I-9 Audit

Source: DHS

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

State Immigration Checked

Retreat of “show me your papers” laws

17

States with E-Verify Requirements

18

Source: NILC

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

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Alabama Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56, amending Ala. Code §32-6-9 (1975), E-Verify portions effective 1/1/12 for state contractors and 4/1/12 for private employers.*Other provisions currently stayed subject to 11th Circuit Court of Appeals temporary injunction. All employers must enroll in E-Verify. There is no sanction for a failure to do so, however, employers that use E-Verify will have a safe harbor from any liability under Alabama law. See Private Employers note. All employers who are state/public contractors of any tier, grant recipients and others who receive state incentives be registered with and use E-Verify. Alaska N/A N/A N/A N/A Arizona Legal Arizona Workers Act (A.R.S. §§23-211 to 23-214) (LAWA) (effective 1/1/08; amended by HB 2745, effective

• n 9/30/2008). Upheld by US

Supreme Court in Chamber of Commerce of United States of America v. Whiting (May 26, 2011). Every employer must verify employment eligibility using E-Verify. There is also a good faith defense based upon completion of I-9. "Employer" means any individual or type of organization that transacts business in the state, that has a license issued by an agency in the state and that employs one or more individuals who perform employment services in the state. "Employer" also includes the state, any political subdivision of the state and self- employed persons. Effective September 30, 2008, any state government entity shall not award a contract to any contractor/subcontractor that has failed to comply with the requirement imposed

• n all Arizona employers to enroll in

and use E-Verify. "Government entity" is defined as the state of Arizona and any political subdivision of the state that receives and uses tax revenues. "Contract" is defined as all types of government entity agreements for the procurement of services in Arizona (regardless of what they are actually called). "Services" means the furnishing

• f labor, time or effort in the state by a

contractor or subcontractor See Public Employers note. Arkansas N/A N/A N/A California NOT REQUIRED AB 1236, Employment Acceleration Act of 2011 (signed

• Oct. 9, 2011)

Prohibits State or other California government entities from requiring a private employer to use E-Verify. Neither the state of California nor any

• f its cities, counties, or special

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. Applies.

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Colorado HB 1343 (signed 6/6/06); SB 139 (effective 8/6/08); SB 193 (effective 8/6/08). N/A N/A State contractors must verify legal work status of all new hires through either E-Verify or a new program administered by Colorado’s Department of Labor and Employment (DOLE). Connecticut N/A N/A N/A N/A Delaware N/A N/A N/A N/A District of Columbia N/A N/A N/A N/A Florida Executive Orders Nos. 11-02 and 11-116 (effective 1/4/11 and 5/27/11, respectively). N/A Requires state agencies to use E- Verify for all prospective state agency employees. Requires all state contractors to use E-Verify for all persons employed and assigned work during the term of a contract. Georgia HB 87 (signed 5/11/11; effective 7/1/11). SB 529 (effective 7/1/07), the Georgia Security & Immigration Compliance Act, requires certain public employers and any contractors and subcontractors of a public employer to register with E-

• Verify. *Other provisions

currently stayed subject to Federal District Court temporary injunction. Requires all employers, public and private, to enroll in E-Verify. Issuance and renewal of a state, county, or municipal business license shall be contingent upon the employer’s registration with E-Verify. The mandatory use of E-Verify will be implemented in phases, based on the number of employees at a company. The effective date for employers with 500 or more employees is 1/1/12; for employers with 100 or more employees, but fewer than 500 employees the effective date is 7/1/12; employers with 10 or more employees, but fewer than 100 employees must be in compliance as

• f 7/1/13. The mandatory E-Verify

provisions do not apply to employers

• f fewer than 10 employees.

HB 87 imposes registration and attestation requirements on all public employers and state contractors. The bill adds to the Georgia criminal code the offense of aggravated identity fraud, which treats as a felony the use

• f counterfeit or fictitious identity

information for purposes of obtaining employment. SB 529 requires certain public employers and any contractors and subcontractors of a public employer to register with E-Verify. Hawaii N/A N/A N/A N/A Idaho Executive Order No. 2006-40 (effective 12/13/06). N/A Public employers (i.e., state agencies and political subdivisions) to register with and use the E-Verify program. Applies

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Illinois NOT REQUIRED The Illinois Right to Privacy in the Workplace Act, 820 Ill.

• Comp. Stat. 55/1 et seq., does

not require the use of E-Verify, but does place additional statutory obligations on employers within the state that do use E-Verify (effective 1/1/10). Employers must complete an attestation at the time of E-Verify enrollment (or by 1/30/10, if already enrolled) confirming that responsible employees have completed the DHS E-Verify tutorial. Employers also must attest that they have posted applicable E-Verify and OSC notices at the workplace. Consistent with the DHS’s MOU entered into by E-Verify participants, employers are prohibited from terminating employees prior to receiving a final non-confirmation of employment authorization from E- Verify and from using E-Verify to prescreen employment applicants. N/A N/A Indiana SEA 590, Ind. Code §4-3-22-17 (effective 6/30/11). Private employers may not claim or receive a deduction or credit for a listed or other statewide tax, property tax exemption, deduction or credit, or loan from the state unless they enroll in E-Verify. SEA 590 requires state agencies, political subdivisions, contractors of any tier with public contracts for services with the state or a political subdivision, and certain business entities to use E-Verify. A state agency or political subdivision may not enter into or renew a public contract for services with a contractor unless the public contract contains a provision requiring the contractor to enroll in and verify the work eligibility status of all its newly hired employees through the E- Verify program, and unless the contractor signs an affidavit affirming that the contractor does not knowingly employ an unauthorized alien. Iowa SF 562 (effective 5/27/09). N/A N/A Any business that receives economic development assistance from the state must be subject to contract provisions stating that all

• f its employees either are US

citizens who reside within the United States or are authorized to work in the United States pursuant to federal law, including legal resident aliens. Kansas N/A N/A N/A N/A

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Kentucky N/A N/A N/A N/A Louisiana HB 342 (Act 376); HB 646 (Act 402) (effective 8/15/2011) All private employers must either use E-Verify or retain copies of certain identity and work authorization documents. N/A All private contractors who want to do business with a state or local public entity must use E-Verify. Maine N/A N/A N/A N/A Maryland N/A N/A N/A N/A Massachusetts N/A N/A N/A N/A Michigan N/A statewide but consult local/municipal requirements. N/A N/A N/A Minnesota Finance Omnibus Bill (effective 7/20/2011). N/A N/A (expired 4/4/2011) A contract for services valued in excess of $50,000 must require certification from the vendor and any subcontractors that, as of the date services on behalf of the state of Minnesota will be performed, the vendor and all subcontractors have implemented

• r are in the process of

implementing the federal E-Verify program for all newly hired employees in the United States who will perform work on behalf of the state of Minnesota. This section does not apply to contracts entered into by the State Board of Investment.

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Mississippi Mississippi SB 2988, Miss. Code

• Ann. §71-11-1 et seq. mandates

E-Verify participation for Mississippi employers. (effective 7/1/2008) State agencies and employers with at least 250 employees were required to be in compliance by 7/1/08; employers with 100 to 249 employees were required to comply by 7/1/09; employers with 30 to 99 employees were required to comply by 7/1/10; and all employers were required to comply by 7/1/11. Penalties include loss of public contracts for up to three years, loss

• f licenses for up to one year, or
• both. The statute’s definition of

“employee” appears to limit the scope

• f the law to individuals hired to

perform work within the state of Mississippi, and to limit applicability to those employers who report income paid to employed or contracted personnel in Mississippi.

• Applies. See Private Employers note.
• Applies. See Private Employers

note.

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Missouri Missouri HP 1549 (effective 1/1/09). N/A HB 1549 (signed 7/7/08) makes it mandatory for all state agencies and local governments in Missouri, as well as private contractors with the state, to use E-Verify for newly hired workers. The law allows the state to terminate contracts with businesses that hire illegal workers, to withhold up to 25 percent of the value of contracts with these businesses, and to suspend them from further contracts with the state for up to three years. Upon a second

• ffense, a business could be

permanently barred from doing business with the state. The law also calls for suspension of local licenses, permits and exemptions for employers who knowingly hire unlawful workers. Additional provisions relate to limitations on public benefits, immigration training for state police, and prohibitions on misclassifying workers as independent contractors when the employers knew that the workers should be classified as employees. Montana N/A N/A Nebraska L403 (effective 10/1/09). N/A unless receiving state economic incentives. Public employers (i.e., state agencies and political subdivisions) to register with and use the E-Verify program to determine the employment eligibility of new hires. Contractors to register with and use the E-Verify program to determine the employment eligibility of new hires. Nevada AB 383 (effective 6/2/07). Administrative fines for those business licensees that are found, by DHS, to employ illegal aliens. The bill also requires verification of an employee’s Social Security number within six months of hire. See Private Employers note. See Private Employers note. New Hampshire N/A N/A N/A N/A New Jersey N/A N/A N/A N/A New Mexico N/A N/A N/A

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

New York N/A statewide but consult local/municipal requirements. N/A N/A N/A North Carolina HB 36 (signed 6/23/11) and SB 1523 (enacted 2006). HB 36 requires private employers with at least 25 employees, and all counties and cities to use E-Verify to verify the work authorization of newly hired employees. Private sector employers with 500 or more employees are required to participate by 10/1/12; employers with 100 to 499 employees are required to participate by 1/1/13; and employers with 25 to 99 employees are required to participate by 1/1/13. HB 36 requires North Carolina counties and cities to register and participate in E-Verify by 10/1/11. SB 1523 requires all state agencies,

• ffices and universities to use E-Verify

for employees hired on or after 1/1/07, except for employees of local education agencies hired on or after 1/1/07. See Private Employers North Dakota N/A N/A N/A Ohio N/A N/A N/A N/A Oklahoma HB 1804 (effective 11/1/2007); currently enjoined in part. N/A The Court of Appeals lifted parts of the injunction in February 2010, allowing Oklahoma to enforce the requirement that state, county and municipal governments and those who contract with the state use E-Verify to prove the legal status of all new hires. Applies. Oregon N/A statewide but consult local/municipal requirements. N/A N/A Pennsylvania Public Works Employment Verification Act (effective 1/1/2013) N/A State contractors and subcontractors must enroll and use E-Verify. “Public work” is defined as “construction, reconstruction, demolition, alteration and/or repair work other than maintenance work, done under contract and paid for in whole or in part out of the funds of a public body where the estimated cost of the total project is in excess of $25,000, but shall not include work performed under a rehabilitation or manpower training program.” Potentially broader reach with subcontractors. See Public Employers

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Rhode Island NOT REQUIRED Executive Order 11-01 (effective 1/5/11) rescinded EO 08-01 that required the use of E-Verify. N/A N/A N/A South Carolina HB 4400 (signed 6/4/08); Act 69 (effective 1/1/12) House Bill 4400, the South Carolina Illegal Immigration Reform Act, requires all South Carolina employers to use E-Verify. On June 27, 2011, Governor Nikki signed into law amendments requiring all employers to enroll in the E-Verify beginning January 1, 2012 and to verify the legal status of all new employees through E-Verify within three business days of hiring. In addition, employers may no longer confirm new workers’ employment authorization with a driver’s license or state identification card. Applies. Applies. South Dakota N/A N/A N/A N/A

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Tennessee HB 1378, The Tennessee Lawful Employment Act (signed 6/7/11). Requires employers either to register with and use E-Verify, or to request from the employee and retain a photocopy of one document from a list of acceptable documents in addition to fulfilling the federal Form I- 9 requirements. The law will be phased-in according to employer size: 500+ employees on 1/1/12, 200 to 499 employees on 7/1/12, and 6 to 199 employees on 1/1/13. HB 729 (signed 6/1/07) provides for the suspension of the business license of an employer for knowingly hiring an illegal alien. For a first violation, the company’s license would be suspended until the illegal worker is

• terminated. For second and

subsequent violations, the suspension would be for one year. As with the Arizona law, the employer’s participation in the federal government’s E-Verify program serves as a defense to a claim that the employer has violated the law.

• Applies. (effective 1/1/12).

An employer of an individual other than an employee paid directlyor indirectly by the employer for the individual's labor or service must comply with HB 1378 as with an employee. Texas HB 1196 (effective 11/15/07). N/A Provides that a public agency, state or local taxing jurisdiction, or economic development corporation shall require a business that submits an application to receive a public subsidy to include in the application a statement certifying that the business, or a branch, division or department of the business, does not and will not knowingly employ an undocumented worker.

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E-Verify and State Immigration Law Summary

State Law and Effective Dates Private Employers Public Employers State Contractors

Utah SB 81 (effective 7/1/2009); SB 251 (effective 7/1/2010); HB 116 (signed 3/7/2011). Establishes guest worker program, upon federal approval, and requires E-Verify or similar verification. Employers of 15 or more employees must use a “status verification system” (E-Verify or SSNVS) to verify legal working status of every new

• hire. Foreign national

employees in H-2A or H-2B nonimmigrant status are excluded. Must use E-Verify or SSNVS. Must use E-Verify or SSNVS. Vermont N/A N/A N/A N/A Virginia HB 737 (effective 12/1/12). N/A State agencies to enroll in the E-Verify Program and to use it for each newly hired employee who is to perform work within the Commonwealth. N/A Washington N/A statewide but consult local/municipal requirements. N/A N/A N/A West Virginia

• W. Va. Code 21-1-1 et seq.

Requires employers to verify a prospective employee's legal status

• r authorization to work prior to

employing the individual or contracting with the individual for employment services. Requires employers to verify a prospective employee's legal status or authorization to work prior to employing the individual or contracting with the individual for employment services. N/A Wisconsin N/A N/A N/A N/A Wyoming N/A N/A N/A N/A

*Revised March 3, 2014. This survey represents a summary of a developing area of law and it is not designed as a substitute for legal advice. While we endeavor to ensure that the information is timely and accurate, we do not warrant it as such. Use of this survey does not create an attorney-client relationship.