Immigration Alert: January 2009January 7, 2009
DHS Issues Interim Final Rule That Modifies Form I-9 and List of Acceptable Documents
U.S. Chamber Coalition Sues To Enjoin FAR E-Verify Mandate
Employer Fined $21 Million for Worksite Enforcement Violations
Former Employees of Idaho Truss Face Criminal Charges
Employer Ordered To Pay $67,000 To Discharged H-1B Worker for Failure To Show "Bona Fide" Termination
District Court Rejects DHS's Proposal To End No-Match Litigation
Judge Refuses To Block Implementation of Rhode Island Emergency Rule on E-Verify
Tenth Circuit Finds Firm Breached Duty To Assist Worker with Green Card Process
USCIS Ombudsman Recommends Expedited Processing of Visa Applications for Nurses
DOS Issues January 2009 Visa Bulletin
We are pleased to report that Frederick Warren Strasser has joined the Immigration Law Group as Senior Counsel, resident in our New York office.
Fred's practice focuses primarily on corporate immigration matters for multinationals within the financial services, healthcare, fashion and technology industries. He has represented these and other employers before the Department of Homeland Security (DHS), U,S. Citizenship and Immigration Services (USCIS), Department of Labor (DOL), Department of State (DOS), Immigration Customs and Enforcement (ICE) and Customs and Border Protection (CBP) in a variety of immigration-related matters. This includes securing temporary work visas for employees and then assisting them to obtain permanent residence; representing foreign investors in connection with EB-5 applications; preventing discrimination claims; and representing employees and management in various compliance issues including, E-Verify registration, Form I-9 audits and worksite enforcement investigations under state and federal law
Fred joins us from Thelan LLP. Prior to joining Thelan, Fred was an Associate and later a Senior Attorney at Proskauer Rose LLP.
On August 1, 2008, the CBP introduced the Electronic System for Travel Authority (ESTA). This system requires nationals from Visa Waiver Program (VWP) countries to apply online for advance authorization before using the VWP to travel to the USA. ESTA authorization will be valid for two years or until the applicant's passport expires, whichever date comes first. The ESTA system currently is voluntary, but will become mandatory on January 12, 2009. VWP travellers who do not have ESTA authorization on or after January 12, 2009 will not be allowed to board a U.S.-bound aircraft or ship. There is no charge to use the ESTA system, which is administered by the DHS.
An ESTA application may be completed online at https://esta.cbp.dhs.gov. Once the application is submitted, the applicant should receive a response within seconds. The responses range from, Authorization Approved (applicant's travel is authorized), to Travel Not Authorized (applicant must obtain a non-immigrant visa at a U.S. Embassy/Consulate before travelling to the U.S.), to Authorization Pending (applicant will need to check the ESTA website for updates within 72 hours for a final response). If travel authorization is not authorized, the applicant will need to secure a B-1/B-2 visa before travelling to the United States.
Instructions on how to obtain an electronic travel authorization are available in 13 additional languages: Danish, Dutch, Finnish, French, German, Icelandic, Italian, Japanese, Norwegian, Portuguese, Slovene, Spanish and Swedish.
For further information on ESTA, please visit: http://www.cbp.gov/linkhandler/cgov/travel/id_visa/esta/esta_tear_sheet.ctt/esta_tear_sheet.pdf
On December 17, 2008, the DHS and USCIS issued an interim final rule (the "Rule") that modifies the Form I-9, and changes and reduces the list of acceptable identity documents for the Form I-9 employment eligibility verification process. The new Form I-9 must be used by February 2, 2009.
The Rule mandates that employers only accept unexpired documents presented as part of the Form I-9 verification process, and eliminates a number of currently acceptable documents no longer issued by the USCIS. According to DHS, these changes were made because, "[a]n expansive document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process." The Rule also modifies the List of Acceptable Documents by removing from List A, Forms I-688, I-688A, and I-688B, which are temporary resident cards and older versions of the employment authorization card, because the USCIS no longer issues these cards, all cards currently in circulation have expired, and these expired documents "are prone to tampering and fraudulent use." Further, the Rule adds to List A foreign passports containing specially marked, machine-readable visas, and documentation for certain citizens from the Federated States of Micronesia and the Republic of the Marshall Islands. Finally, the Rule makes technical changes and revisions to the employee attestation section of the Form I-9.
Employers must use the new Form I-9 and List of Acceptable Documents on or before February 2, 2009. This includes all new hires, as well as any employees with expiring employment authorization that must be re-verified.
To review the Rule, please visit: http://op.bna.com/dlrcases.nsf/r?Open=amky-7m9qvb.
To download the revised Form I-9, please visit: http://www.uscis.gov/i-9.
As we have reported previously, President Bush issued an amendment to Executive Order No. 12989 that requires federal government contractors to verify the identity and work authorization of all employees assigned to perform work on future federal contracts. On November 13, 2008, the Civilian Agency Acquisition Council and Defense Acquisition Regulations Council issued a final rule that mandates the use of E-Verify for most federal contracts with the Defense Department, Government Services Agency and National Aeronautics and Space Administration.
On December 23, 2008, a coalition of business groups led by the U.S. Chamber of Commerce filed suit in the federal district court of Maryland seeking to enjoin implementation of the Executive Order and Final Rule. The complaint alleges that the E-Verify mandate violates Congressional directives against compulsory participation in programs created or funded by Congress. The complaint also alleges that the E-Verify requirement will harm a significant number of businesses and human resource professionals by placing an additional and significant financial and time burden on compliance.
On December 19, 2008, the ICE announced that IFCO Systems North America had agreed to pay almost $21 million to resolve a criminal investigation into whether it had knowingly hired and employed nearly 1,200 undocumented workers. The agreement includes $18 million in fines or civil forfeitures, plus $2.6 million in back pay and penalties for overtime violations of the Fair Labor Standards Act. As part of the settlement, IFCO acknowledged and accepted "responsibility for the unlawful conduct of its managers and employees." IFCO also agreed to take a number of steps that would strengthen and standardize employment and Form I-9 processes throughout its over 150 operations across the United States. This is the largest settlement to date for a worksite enforcement action and reflects the fact that nine IFCO managers admitted guilt in the employment of illegal aliens.
On December 12, 2008, sixteen former employees of Idaho Truss in Nampa, Idaho, were indicted by a federal grand jury on charges that included possession of counterfeit alien registration receipt cards, misuse of Social Security numbers, and illegal entry or re-entry after deportation.
These indictments resulted from an ICE worksite enforcement investigation. All those charged in the case are Mexican nationals, who pled guilty and were sentenced to time served and returned to ICE custody for removal from the United States. The three defendants are scheduled to go on trial February 10, 2009.
Leigh Winchell, the ICE agent in charge of the investigations, indicated that, "[i]dentifying and documenting the use of fraudulent Social Security numbers and other fake identity documents is a key piece of any worksite enforcement investigation," In this case, ICE previously had determined that some of the workers at this employer had provided counterfeit Social Security numbers to gain employment. Special Agent Winchell indicated that ICE considers the use of fraudulent identity or work authorization documents an important component of worksite enforcement and that ICE will continue to launch investigations when this form of illegal activity is discovered.
On December 3, 2008, the U.S. Labor Department's Administrative Review Board (ARB) issued its ruling in Mao v. Nasser Engineering & Computing Services, (ARB, No. 06-121, 11/26/08). In this decision, the ARB directed Nasser Engineering & Computing Services (NECS), a Texas technology firm, to pay one of its former H-1B employees more than a year's back pay because NECS failed to effectuate this employee's "bona fide termination" for H-1B purposes when he was discharged from the company.
As we have noted previously, employers seeking to terminate the employment of an H-1B worker before the validity period of the approved H-1B petition expires must effect a "bona fide" termination to limit their salary liability under the Labor Condition Applications (LCA) submitted for these cases. This requires the employer to offer the terminated employee "reasonable" transportation costs home and to notify the USCIS of the termination and request revocation of the approved H-1B petition. In this case, the ARB found that NECS had not reported the employee's termination to the USCIS and thus was responsible for paying all remaining compensation due under its LCA for this employee. This amounted to $66,919.48 in back wages.
On December 5, 2008, the U.S. District Court for the Northern District of California rejected a DHS request to dismiss AFL-CIO v. Chertoff, the litigation challenging the Safe Harbor regulation issued in August 2007. Last year, the District Court issued a preliminary injunction that prevented DHS from implementing the Safe Harbor regulation. This ruling means that the case will remain pending until at least March 2009.
In our April 2008 Client Alert, we reported that the DHS had issued a Supplemental Safe Harbor regulation but could not implement it until the District Court lifted this injunction. The District Court's ruling is important because it leaves the injunction against implementation of the Safe Harbor regulation in place. The District Court's ruling also prevents the Social Security Administration (SSA) from issuing No-Match letters with any reference to the DHS Safe Harbor rule. When the injunction was issued, the SSA announced that it would delay sending more No-Match letters until the litigation was resolved. In issuing its most recent decision, the Court rejected DHS's argument that SSA would have to delay its next round of No-Match letters in January 2009, if the case was not resolved by that time. As a result, it appears that the SSA must again postpone the issuance of No-Match letters or send them with no reference to the DHS Safe Harbor regulations.
On December 02, 2008, Justice Mark A. Pfeiffer of the Rhode Island Superior Court refused to issue a temporary restraining order (TRO) to prevent the state from continuing to enforce an emergency regulation that required all persons and businesses doing business with the state to use E-Verify to substantiate that new hires are authorized to work in the United States (Rhode Island Coal. Against Domestic Violence v. Carcieri, R.I. Super. Ct., No. 08-5696, 12/2/08).
Denying the TRO motion, the Rhode Island Superior Court found that "sufficient emergent circumstances exist" for the emergency regulation. On October 17, 2008, when the state Department of Administration issued the emergency regulation, the agency maintained that the emergency action was justified because it appeared that numerous undocumented aliens were working in state government buildings that contained sensitive documents and because of the elevated unemployment rate in the state.
Judge Pfeiffer found that the plaintiffs challenging the regulation would not suffer irreparable harm without a TRO, because the emergency regulation applies only prospectively and does not affect any current contracts with the state. He also found that the Department of Administration is likely to implement a final regulation soon. In contrast, Judge Pfeiffer stated that: "?...granting the requested TRO would create a risk of harm to state officials who might enter into contracts with entities that employ undocumented foreign workers prior to the implementation of the final regulation."
On December 3, 2008, the U.S. Court of Appeals for the Tenth Circuit issued an unpublished opinion that found that an employer breached its fiduciary duty to assist an employee with a temporary work visa to obtain permanent resident status, but reversed the verdict because the jury had failed to consider whether the employee had refused to mitigate her damages by rejecting a different job at the same salary. DerKevorkian v. Lionbridge Technologies Inc.,No-07-1125 (10th Cir. 12/3/08).
In what appears to be a ruling of first impression, the jury found that the employer breached its fiduciary obligation to sponsor the employee for permanent residence based on its representations in its employment contract with the employee. As a result of this breach, the jury awarded the employee $221,433 in economic damages and $366,250 in non-economic damages. The 10th Circuit agreed with the trial court that the employer assumed and breached a fiduciary duty to assist and support the employee with her green card application. In its opinion, the Court noted: "throughout their employment relationship, [the employee] invariably relied upon [the employer] and its expertise and experience to assist her in obtaining whatever documentation was necessary to remain a legal worker in the United States," and that this culminated in the company's agreement to help her obtain a green card. On this basis, the Court found that the employer had "assumed a fiduciary duty to assist [DerKevorkian] and support her in her green card application."
However, the 10th Circuit reversed the lower court's decision because it found that the trial court erred in failing to instruct the jury to consider whether the employee should have mitigated her damages by accepting another job that might have helped her get a green card. While agreeing that the employer has assumed a fiduciary obligation, the Court noted that the relationship was not completely one-sided. "As time went on, and as the difficulties were encountered with the prevailing wage determination, we believe [the employee] assumed some duty to cooperate with [the employer] as well." He found that the trial court erred in refusing to instruct the jury to consider whether the employee could have mitigated her damages and obtained a green card by accepting another position.
On December 05, 2008, the USCIS Ombudsman recommended that the USCIS should take necessary steps to expedite the processing of visa applications for nurses to help alleviate the nursing shortage in the United States. Specifically, the Ombudsman recommends the following three actions:
1. USCIS should separate and prioritize Schedule A green card nurse applications so that they can be expedited when immigrant visas are available without the requirement of a written request. Schedule A pre-certification is a determination that there are insufficient U.S. nurses who are able, willing, and qualified to work and bypasses the usual need to test the local labor market to determine if a U.S. worker is available.
2. USCIS should centralize Schedule A nurse applications at one designated USCIS Service Center to make visa processing for nurses more consistent.
3. USCIS should communicate regularly with the DOL to discuss concerns regarding the processing of nurse immigration applications.
For a full copy of the Ombudsman's report, please visit: http://www.dhs.gov/xlibrary/assets/cisomb_ead_recommendation_36.pdf
The DOS recently issued its Visa Bulletin for January 2009. This Bulletin determines who can apply for permanent residence and when. The Employment-Based Third Preference (EB-3) is available for all Charge-ability areas and the cut-off date is May 01, 2005. There are additional cut-off dates as follows: India-October 15, 2001; China-June 01, 2002; Mexico-November 15, 2002; and the Philippines-May 01, 2005. The Employment—Based Second Preference (EB-2) for Indian and Chinese nationals is available and the cut-off dates are July 01, 2003 and July 08, 2004 respectively.
To view the monthly Visa Bulletin, please visit: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html