Immigration Alert: June 2009June 24, 2009
DHS Delays Implementation of Federal Contractor E-Verify Rule
ICE to Focus on Employer Compliance with Immigration Laws
45-Count Criminal Indictment of Leasing Companies and Principals Serving the Hospitality Industry
RICO Immigration Litigation on the Rise
H-1B Worker Wins Injunction Requiring Employer Sponsorship
New York Supreme Court Allows Jury to Consider Undocumented Alien's Immigration Status in Valuing Tort Claim for Lost Wages
Congress Extends "Conrad 30" Program for J-1 Waivers
USCIS Reminds Applicants for Adjustment of Status, Asylum, Legalization and TPS Beneficiaries to Obtain Advance Parole Before Traveling Abroad
Nebraska/Utah Require E-Verify Use
Eight Circuit Upholds Municipal Immigration Law
DOS Issues July 2009 Visa Bulletin
On June 22, 2009, the U.S. Citizenship and Immigration Services (USCIS) announced that on June 29, 2009, it would resume Premium Processing Service for Form I-140 petitions filed under the following classifications:
EB-1 Aliens of Extraordinary Ability,
EB-1 Outstanding Professors or Researchers,
EB-2 Members of the Professions Holding an Advanced Degree or Aliens of Exceptional Ability who are not seeking a National Interest Waiver, and
EB-3 Professionals, Skilled Workers and Other Workers.
Premium Processing still is not available for EB-1 Multinational Managers, or EB-2 Members of the Professions Holding an Advanced Degree or Aliens of Exceptional Ability who seek a National Interest Waiver.
Under the premium processing rules, the USCIS agrees to adjudicate the petition or issue a Request for Additional Evidence within 15 calendar days of receipt of the application and the additional filing fee (presently $1,000). Participants in the premium processing service also have access to a dedicated phone line and email address to ascertain case status or ask questions. For foreign nationals who shortly will reach or who already have reached their six-year limit in H-1B status, the quick approval of an I-140 petition will allow a three-year extension of H-1B status if no visa number is available to them when the H-1B petition is filed. This can eliminate the need for multiple annual H-1B extensions and thus makes the $1,000 filing fee a good investment.
On June 3, 2009, the Department of Homeland Security (DHS) announced that it had extended to September 8, 2009, applicability of the regulation issued last year by the Bush Administration ("Final Rule") that would impose an E-Verify requirement on all government contractors. This extension resulted from a lawsuit filed by the U.S. Chamber of Commerce in the U.S. District Court of Maryland to enjoin the Final Rule, and is the latest in a series of delays in the implementation of the Final Rule, which originally was published on November 14, 2008, and now has been delayed over 200 days!
Once effective, the Final Rule will require all entities entering into contracts with the federal government and specifically with the Department of Defense, General Services Administration and NASA, to verify through E-Verify the identity and employment eligibility of employees tasked with fulfilling the contract.
On June 16, 2009, John Morton, the DHS Assistant Secretary for the Immigration Customs and Enforcement Agency (ICE), announced that his agency plans to focus its enforcement resources on ensuring that employers satisfy their legal obligations under the immigration laws. In this regard, Morton indicated that ICE plans to continue increasing the use of criminal prosecutions, asset forfeitures, civil fines and contractor debarment to enforce worksite compliance.
We previously noted our view that the Obama administration sees enhanced worksite enforcement as the key to comprehensive immigration reform. Morton's statements about the added resources being devoted to worksite enforcement only confirm that observation. In his remarks, Morton emphasized that the federal government "must hold accountable employers who knowingly violate the law." This will involve criminal investigations of employers who knowingly violate immigration and/or labor laws. In addition, ICE plans to conduct substantially more Form I-9 audits, develop evidence on worksite violations and increase the number of federal contractor debarment proceedings against non-compliant employers. The hope, Morton indicated, is to add a "real cost" for employers who do not play by the rules.
On May 27, 2009, the U.S. Attorney's Office in Kansas City, Missouri, announced the arrests of eight defendants, including three labor-leasing companies, in connection with a scheme to employ hundreds of illegal aliens at hotels and other businesses in 14 states. These defendants were the subject of a 45-count indictment that accused them of fraud, identity theft, forced-labor trafficking, money laundering, transporting illegal aliens and other criminal violations in connection with the misuse of the H-2B nonimmigrant visa classification. See United States v. Askarkhodjaev, No.4:09-CR-00143 (W.D. Mo. May 27, 2009).
This indictment provides the most recent warning to hospitality industry employers who blindly elect to use the H-2B nonimmigrant classification without conducting the due diligence necessary to ensure legal compliance. Given the federal government's announced intention to step up its worksite enforcement efforts, employers in the hospitality industry would be well-advised to review their agreements and other relationships with vendors who supply H-2B labor. This indictment was against the leasing companies. The next indictment could very well be against the hospitality organizations that benefit from these workers.
The Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§1961 et seq., is gaining popularity as a tool by the federal government, employees, competitors and others to combat immigration law violations. The resort to RICO rests in large part on the federal government's failure to pass comprehensive immigration reform. The attractiveness of RICO as a civil or criminal claim results from its stiff penalty provisions. Successful civil plaintiffs can recover treble civil damages, reasonable counsel fees and injunctive relief if they can prove that the damages they suffered resulted "by reason of" the defendant's immigration violations. The government finds RICO well-suited for criminal prosecutions in this area because of the ease with which it can prove conspiracy claims and thus connect illegal activities to several defendants. The Askarkhodjaev indictment, for example, contained several RICO counts.
During the last month, federal courts issued two class action decisions that emphasized the increased reliance on RICO as a remedy for immigration violations. On May 18, 2009, a federal court in the Eastern District of California granted class certification of RICO claims brought by employees who alleged that the employer, a food-processing company, had depressed their wages by engaging in a pattern of racketeering activity and knowingly hiring undocumented workers at low wages. Brewer v. Salyer, No. 06-1324 (E.D. Calif. May 18, 2009). On May 28, 2009, the United States Court of Appeals for the Eleventh Circuit reversed a district court decision that had denied class certification to the plaintiff employees who sued Mohawk Industries, Inc. claiming that it violated RICO by hiring undocumented workers to drive down their wages. Williams v. Mohawk Industries, Inc., No. 08-13446 (11th Cir. May 28, 2009). The Mohawk litigation has had a long and tortured history in the federal courts. It began in January 2004, and several issues have been on appeal to both the 11th Circuit and the U.S. Supreme Court. As a result of this decision, however, Mohawk now faces the prospect of treble damages if found liable to the thousands of employee plaintiffs that comprise the class.
On June 11, 2009, a federal district court issued an injunction that required the University of Pittsburgh to sponsor a Russian biologist for an H-1B extension and continue her employment until her claims of discrimination in her discharge can be resolved. Karakozova v. University of Pittsburgh, No. 09-cv-0458 (W.D. Pa. June 11, 2009).
The Karakozova decision represents the latest decision that injects the courts into what previously had been considered the employer's unlimited discretion in sponsoring an employee for any immigration benefit, including H-1B classification. We reported last year on the Lionbridge decision, in which the 10th Circuit found that the employer violated a fiduciary obligation created by its vague immigration sponsorship policy by failing to sponsor an H-1B employee for permanent residence. These decisions unfortunately appear to represent increased judicial intervention into an employer's sponsorship decisions and thus place a premium on the organizational policies that define the employer's obligations in this area.
On June 12, 2009, the Supreme Court of the State of New York, Bronx County, issued a decision that allowed the plaintiff, an undocumented alien who was pursuing a tort claim, to offer evidence of probability that his asylum application would succeed so the jury could evaluate his claim for lost wages. Maliqi v. E. 89th Street Tenants, Inc., Index No. 23309/06 (Sup. Ct. Bronx Cty. June 12, 2009). Under federal immigration laws, undocumented aliens are not allowed to work. In tort claims where lost wages are concerned, defendants often attempt to use the plaintiff's illegal immigration status as an absolute legal bar to recovery. In most states, the courts will allow recovery for back wages on the theory that the employer should not benefit from the employee's labors, especially if its lax application procedures allowed the employee on the organization's payroll.
The issue of how to handle claims of lost future earnings has resulted in various approaches in the different states. Most states agree that an individual's undocumented status is not an absolute bar to recovery. This is especially the case where the employer either knew of the employee's lack of work authorization or did not have procedures in place to properly evaluate that work authorization. Balbuena v. IDR Realty, 6 NY 3d 338 (2006). The question is how does the plaintiff prove that he is legally entitled to the lost future earnings claimed?
In the Maliqi decision, the court recognized that the plaintiff's immigration status was a relevant consideration on any lost future earnings claim. If he remained undocumented, then he had no legal right to future wages. If his asylum claim was granted, however, he might. In a novel approach, the court resolved this conflict by allowing the plaintiff to offer evidence to the jury regarding the likelihood of success for his asylum claim. In essence, the court held that the prospect of his deportation and length of time during which the plaintiff might continue earning wages legally in this country are factual issues for the jury to determine.
On March 20, 2009, President Obama signed Public Law 111-9, which allows International Medical Graduates (IMGs) who have been granted J-1 nonimmigrant status (either by entering the country in J-1 status or receiving an approval to change nonimmigrant status to J-1 from the USCIS) by September 30, 2009, to later qualify for a waiver of the two-year foreign residence requirement under the "Conrad 30" program. Without congressional action, the Conrad 30 program would have sunset on March 6, 2009.
IMGs who participate in resident training programs generally must do so in J-1 nonimmigrant status. To secure J-1 status, the IMG must agree that s/he will leave the United States and reside in his or her home country for two years once the resident training program has concluded. It is possible for these J-1 IMGs to secure a waiver of this foreign residence requirement in various ways. One legal basis for securing a J-1 waiver is the Conrad 30 program. This was created in 1994 under federal immigration law. The Conrad 30 program allows each state's health department to recommend granting a J-1 waiver if the IMG will work in a medically underserved area.
This extension of the Conrad 30 program now allows eligible IMGs to participate as long as they secure their J-1 status by September 30, 2009.
On May 29, 2009, the USCIS issued a memorandum to remind foreign nationals that they must obtain an Advance Parole documents before traveling abroad if they have:
Been granted Temporary Protected Status (TPS);
A pending application for permanent resident (other than those in valid H or L status);
A pending application for relief under section 203 of the Nicaraguan Adjustment and Central;
American Relief Act (NACARA 203);
A pending asylum application; or
A pending application for legalization.
Advance Parole is administrative authorization to apply for permission to return to the United States after traveling abroad. Securing Advance Parole, however, does not guarantee admission. Foreign nationals may be inadmissible even with Advance Parole if, for example, they have been unlawfully present in the United States, committed crimes or otherwise violated their status. We therefore advise anyone with such an immigration background to consult counsel before considering any trip abroad.
If foreign nationals are eligible to travel with Advance Parole, they then must apply and secure this authorization before leaving the United States. If they leave the United States without securing Advanced Parole, they may not be able to return to this country because the USCIS may deny or administratively close their pending applications.
On April 8, 2009, Nebraska Governor Dave Heineman signed into law LB 403, which, among other things, requires all public employers and employers that receive state or local contracts or tax incentives to verify the work authorization of all newly hired employees through E-Verify. The E-Verify provisions in LB 403 take effect on October 1, 2009.
On March 13, 2008, Utah Governor Jon M. Huntsman, Jr. signed into law SB 81, which requires public employers and public contractors to verify the employment authorization of new employees. The effective date of SB 81, however, was pushed back one year, to July 1, 2009. SB 81 places an obligation on state and local government agencies, as well as on companies that receive public contracts, to use E-Verify or another status verification system to ensure that new employees have authorized immigration status.
On June 5, 2009, a three-judge panel of the United States Court of Appeals for the Eighth Circuit unanimously affirmed a lower court's ruling that had sustained Ordinance 1722. Grey v. Valley Park, No. 08-1681 (8th Cir. June 5, 2009). This ordinance was passed by the St. Louis suburb of Valley Park in February 2007, and bars employers that knowingly hire undocumented workers from obtaining or renewing a business permit, city contract or grant. It also sets out a procedure for lodging complaints against potential violators and requires, among other things, that business entities applying to obtain or extend a business license sign an affidavit stating that they do not knowingly employ an undocumented worker.
The Valley Park decision is the latest to sustain a municipal or state statute that bars employers from securing or extending business licenses if they hire or continue to employ undocumented workers. Similar statutes that sought to fine or criminally penalize employers for employing undocumented workers have been struck by the courts as pre-empted by provisions of the federal immigration laws.
The State Department (DOS) has issued its July Visa Bulletin. The July Visa Bulletin shows that the first and second employment-based classifications are current, except for Indian and Chinese employment-based second preference (EB-2) classifications. All employment-based third preference (EB-3) classifications are "unavailable", which means that there will be no visas available for the foreseeable future.
EB-2 category for India and China remains at January 1, 2000. To make matters worse, the DOS believes that it may have to close the Indian EB-2 category (i.e., also make it unavailable) in August or September due to the rapidly growing demand for visas. The supply of immigrant visas is replenished every October when the government's fiscal year begins. By that time, the DOS believes there will be more than 50,000 Indian EB-2 and EB-3 cases waiting for visa numbers. Thus, the supply of EB-2 numbers not only will remain tight for the rest of fiscal 2009, but it also may be tight for fiscal 2010. The DOS estimates that the cut-off date for the Indian EB-2 cases will remain January 1, 2000, if it is available at all. The DOS expects the Indian EB-3 category to have a cut-off date of November 1, 2001, when the October 2009 Visa Bulletin is issued.
The monthly Visa Bulletin is available through the DOS Web site at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html