Immigration Alert: May 2009May 15, 2009
I. Jungmin Choi Joins the EBG Immigration Law Group
We are pleased to announce that Ms. Jungmin Choi has joined the National Immigration Law group as an Associate in our Newark office. Ms. Choi concentrates her practice on employment-based immigration law, and has more than six years' experience advising employers in a variety of industries on: (a) business-related immigration matters involving the recruitment, hiring, transfer and retention of foreign nationals in the United States; (b) obtaining nonimmigrant visas and permanent residence for foreign nationals working in the United States; and (c) employer sanctions and record-keeping under various regulations (Immigration Reform and Control Act (Form I-9), H-1B Public Inspection files, etc.).
II. DHS Issues New Worksite Enforcement Guidelines
On April 30, 2009, the Department of Homeland Security (DHS) issued new worksite enforcement guidelines. According to these guidelines, future DHS worksite enforcement will focus more on criminal prosecution of businesses and their owners who hire undocumented workers and less on workplace raids to round up these undocumented workers.
According to the DHS, agents now are instructed to "?...obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office to prosecute the targeted employer, before arresting employees for civil immigration violations at a worksite." Agents also have been instructed to use civil fines and debarment from federal contracts to "penalize and deter illegal employment." According DHS statistics, of more than 6,000 arrests related to worksite enforcement last year, only 135 of those arrested were employers. The DHS plans to exponentially increase the number of management arrests in 2009.
The new worksite enforcement guidelines serve as yet another stark reminder of the importance of worksite compliance in the current regulatory environment. As we have reported, the DHS has taken a very hard line with employers that fail to comply with the laws relating to worksite enforcement. Under DHS regulations, improperly completed Form I-9s can be considered reckless disregard of these laws and thus constructive knowledge of the employment of undocumented workers. For this reason, it is important that all employers address these worksite compliance issues as part of their overall risk management program.
III. Obama Administration Delays Implementation of Federal Acquisition Regulation Requiring Use of E-Verify
On April 17, 2009, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration announced that they have agreed to delay the applicability date of the Federal Acquisition Regulation requiring federal government contractors to use E-Verify to June 30, 2009. This announcement permits the Obama Administration to more thoroughly review the rule and extends the applicability date of this E-Verify rule from May 21, 2009.
IV. Senators Durbin and Grassley Introduce H-1B and L-1 Visa Reform Act
On April 23, 2009, Majority Leader Richard Durbin, Democrat from Illinois, and Senator Chuck Grassley, Republican from Iowa, introduced the "H-1B and L-1 Visa Reform Act" (the "Bill"). The Bill would, among other things, require the following:
- All employers who want to hire an H-1B worker first would make a good-faith attempt to recruit a qualified American worker.
- Employers could not employ any H-1B worker to displace a qualified American worker.
- Employers could not place "H-1B only" ads and would be barred from hiring additional H-1B and L-1 workers if more than 50% of their employees are H-1B and L-1 visa holders.
In addition, the Bill would give the government more authority to conduct employer investigations and streamline the investigative process. Specifically, it would empower the U.S. Department of Labor (DOL) to do the following:
- Initiate investigations without a complaint and without the DOL Secretary's personal authorization.
- Review H-1B applications for fraud and conduct random audits of any company that uses the H-1B program.
- Conduct mandatory annual audits of companies who employ large numbers of H-1B workers.
Finally, the Bill would institute a number of changes to the L-1 visa program, including establishing for the first time a process to investigate, audit and penalize L-1 visa abuses.
V. Second Circuit Overturns Two Decisions Finding Medical Residents Subject to FICA
The U.S. Court of Appeals for the Second Circuit has reversed two New York federal district courts that held that medical residents are "categorically ineligible" for Federal Insurance Contributions Act (FICA) tax exemptions for students. See United States v. Memorial Sloan-Kettering Cancer Center, No. 07-0926 (2d Cir. Mar. 25, 2009).
The two cases raised the issue of whether postgraduate medical residents can invoke the FICA exemption for students. In each case, the district court ruled, as a matter of law, that postgraduate medical residency programs are not schools and that medical residents are not students.
In the decision, Judge Peter V. Hall wrote that Congress has not defined the term 'student' so there was no basis for the lower court's conclusion that a postgraduate doctor could never be eligible for the exception. After extensively reviewing the legislative history, the Second Circuit concluded:
"We agree with the Sixth, Seventh, and Eleventh Circuits that the statue is unambiguous and that whether medical residents are 'students' and the Hospitals 'schools' is a question of fact, not a question of law," "?... [T]he Hospitals do not urge us to adopt an unusual or strained interpretation of the statutory text. They seek only the opportunity to prove, through the introduction of evidence, that their residents come within the terms of the text."
The Second Circuit reversed and remanded for further fact finding on these issues.
VI. President Obama Signs Bill Extending Two Immigration-Related Programs
On March 20, 2009, President Obama signed H.R. 1127, Pub. L 111-9, which extends two immigration related programs: the Religious Workers and Conrad 30 programs. The new law extends the special immigrant religious worker program though September 30, 2009, and it also extends the Conrad 30 program which allows international medical graduates to secure waivers of foreign country residence requirements from State sponsorship through September 30, 2009.
VII. Eighth Circuit Affirms Peonage Convictions Against Hotel Owners
The U.S. Court of Appeals for the Eighth Circuit has upheld the convictions of Robert and Angelita Farrell, the owners and operators of a Comfort Inn in Oacoma, South Dakota. See United States v. Farrell, No. 08-1559 (8th Cir. Apr. 17, 2009). These defendants were convicted of a number of charges of peonage, conspiracy, visa fraud and document servitude in connection with their treatment of Filipino workers at their facility. Robert Farrell was sentenced to 50 months of incarceration, and Angelita Farrell was sentenced to 36 months of incarceration. Each defendant also was ordered to pay a $15,000 fine.
The defendants had contracted and transferred nine Filipino workers under temporary H-2B visas to work as housekeepers. On the nonimmigrant visa petition, they stated that each housekeeper would be paid at least $300 per week. Additionally, the employment contracts provided for six eight-hour workdays per week, with an hourly pay rate of $6.05 and holiday and overtime pay, and required the defendants to pay the workers' transportation costs to and from the United States and provide housing for which the workers would reimburse them $150 per month.
The Eighth Circuit found that, in reality, the defendants required the workers to sign a "debt" contract. They charged the workers for their transportation costs, and forced them to pay a $1,200 "processing fee" for their nonimmigrant visa petition. Instead of paying the contractually required hourly wage, the workers were paid $3.00 for each room they cleaned. This literally forced the workers to work seven days per week, sometimes as many as 13 hours per day, just to try and meet these unanticipated debts.
Writing for the three-judge panel of the court, Judge Michael J. Melloy, upheld the convictions based on the record, which contained substantial evidence that the workers: (a) were forced to work long hours for low pay; (b) were isolated socially; (c) were denied access to their passports; and (d) feared the hotel owners because of repeated threats to put them in a box and ship them back to the Philippines.
The Farrell decision is another warning to hotel owners and operators of the risks associated with using foreign nonimmigrant labor. While this record is extreme, the government continues to closely examine the use of foreign labor, in either the H-2B classification or other temporary work categories, to determine whether the facilities satisfy all U.S. immigration, labor and other laws. Thus, it is important that these facilities assess their risks associated with this work force by auditing their activities to ensure full legal compliance.
VIII. Reminder: Automatic Visa Revalidation
Under State Department and DHS regulations, nonimmigrants in lawful status in the United States are permitted to travel to Canada or Mexico for up to 30 days based only on their valid I-94 Departure Record, despite the fact that they lack a valid visa in their current nonimmigrant classification. This process is called "Automatic Revalidation," since the regulations essentially "revalidate" their expired visa to their current visa classification for the duration of the trip. In this regard, however, foreign nationals seeking to take advantage of Automatic Visa Revalidation also must ascertain if they are required to first secure a visa to enter Canada or Mexico.
On May 7, 2009, the DHS issued a reminder on the scope of revalidation that contained several points that bear repeating. First, while F-1 and J-1 students are eligible for automatic revalidation, it applies only to trips to contiguous territory and adjacent islands?not Cuba. Second, nonimmigrants otherwise eligible to re-enter the U.S. under automatic revalidation will lose that eligibility if they applied for a new visa while outside the country and that application either is pending or was denied. Finally, nationals of Iran, Syria, Sudan, and Cuba are not eligible for automatic revalidation under any circumstances. They will need valid visas to re-enter the United States.
IX. Bill to Exempt STEM Ph.D. Graduates from H-1B Visa Quota Introduced in House
On March 30, 2009, Representative Jeff Flake, Republican from Arizona, introduced a bill to exempt foreign nationals from numerical caps on H-1B visas if they have earned a Ph.D. degree in a field of science, technology, engineering, or mathematics (STEM) from a U.S. university.
The Stopping Trained in America Ph.D.s from Leaving the Economy Act of 2009 (STAPLE Act, H.R. 1791) has been referred to the House Judiciary Committee. If passed and signed by the President in its present form, it would amend the Immigration and Nationality Act to exempt these foreign-national STEM graduates not only from the H-1B quota, but also from the numerical limitations on permanent residence.
X. DOS Issues May 2009 Visa Bulletin
The DOS recently issued its Visa Bulletin for May 2009. This Bulletin determines who can apply for permanent residence and when. Employment-Based Third Preference is unavailable for all Charge-ability areas. The Employment—Based Second Preference ("EB-2") for Indian and Chinese nationals is available and the cut-off dates are February 15, 2005 and February 15, 2004 respectively. The monthly Visa Bulletin is available through the DOS web site at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html