Immigration Update Brian E. Schield Topics Updates and procedural - - PDF document

Brian E. Schield

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

Brian E. Schield brian.schield@squiresanders.com +1 213 689 5109