Posts Tagged ‘(ICE)’

ICE Launches I-9 Audits

August 24, 2009

I could not wait to September to send the September update – so much is happening in Immigration Law lately.  Not too much of it is good . . .

H-1B Numbers Hold Out, but DOL Bungles LCAs

As you recall, every fiscal year 65,000 “cap-subject” H-1Bs are available, plus 20,000 for U.S. advanced degree holders.  This fiscal year (2009/10), fewer than 45,000 cap-subject H-1Bs have been received, leaving 20,000 still available.  This count has not changed much since April when the filing period started.  Obviously, the economy has affected H-1B filings as expected.

However, this is good news for those who now have jobs for H-1B workers – you can still file for them for any job starting October 1, 2009 or later.

The bad news?  Dept. of Labor, which is charged with administering the labor condition application program, has implemented a new “iCert” program.  Rather than the fabulous electronic filing system that we had – where LCAs were approved in a matter of seconds if completed correctly – we now have a dysfunctional system that is delaying H-1B filings for weeks.

The point of the new system was to allow for human review of the LCAs to prevent fraud.  We knew this would take longer, but no one expected the lack of functionality we are experiencing.

Because of a technical problem, the iCert system cannot verify tax ID numbers of many companies (even large, well-established companies).  This results in a denial of the LCA.  We then have to file information to verify the tax ID number with DOL.  Once they verify this, we have to RE-FILE the LCA – they will not just approve the wrongly-denied one.  This process can take days or weeks.

Bottom line:  If your company anticipates filing H-1Bs in the future, we suggest that you FILE LCAs NOW for expected positions.  Just like in the “good old days” of manually-filed LCAs, there is no need to have a person identified for an LCA, and you can indicate a range of salaries and designate multiple positions.  The LCA is valid for up to 3 years (as you specify).

If you have a valid LCA approved for a position, you can then plug the H-1B beneficiary into the approved LCA (and of course keep track of how many positions have been used on an LCA).

We would be happy to help you figure out a strategy that can work for your company so that a critical H-1B hire will not be delayed.

More H-1B Woe . . .

Just a head’s up to those filing H-1Bs:  The Immigration Service has an RFE problem this year.  “RFEs” are “requests for evidence”.  They are issued when the examiner believes that more information is needed to properly decide the case.  Usually we do not receive them for common H-1B applications, such as for computer professionals.  But this year, the majority of cases filed have received RFEs, and we have heard the same news from attorneys throughout the U.S.  We can overcome the RFEs but it has added to the H-1B cost and hassle for many clients.  I am involved in liaison efforts with the government through the American Immigration Lawyers Association, and we are working to help resolve this issue.  We are also adjusting our filing packets to make even more abundantly clear that the H-1B should be approved the first time.  But even so, this is not guarantee that an RFE won’t be issued.

R-1 Premium Processing Resumed

R-1 petitions for religious workers and ministers may now be filed with the additional $1,000 premium processing fee for adjudication in 15 calendar days IF the employer has been subjected to a site visit inspection previously.

Please keep in mind that the religious worker category is sun-setting Sept. 30, but we hope it will be extended as in years past. The religious minister category is permanent in the law.

EB Priority Dates

Per the August 2009 Visa Bulletin, the cut-off date for both the China-mainland born and India EB-2 categories is October 1, 2003, almost a four-year jump from last month.  We are following up on any cases that have now become current so that our clients have the best chance of being approved while the numbers are available.

The third preference and “other workers” employment-based categories remain Unavailable; all other categories are Current. EB-3 visa numbers worldwide and for India, China, and Mexico are expected to remain unavailable for the remainder of this fiscal year (which ends Sept. 30). The EB-3 category for India could remain unavailable indefinitely.

Last month the Dept. of State announced that the India and China EB-2 categories could become unavailable in August or September and remain unavailable indefinitely. DOS explained that there is a backlog of at least 25,000 India EB-2 cases awaiting visa numbers. Without legislative relief, the waiting time for Indian EB-2 applicants might be measured in years or even decades, according to DOS.

Demand for EB-4 (religious workers and ministers) is also high, possibly requiring a the establishment of a cut-off date, or the category becoming “Unavailable” for September. It is expected to return to “Current” in October, the first month of the new fiscal year.

This news is disturbing for applicants and highlights the urgent need for immigration reform.

Federal Contractors

It appears the Obama Administration intends to fully implement the e-Verify rule for federal contractors.  The target effective date is September 8. As you may recall, this rule was challenged in court, but so far, no injunction against implementation has been issued.

This rule affects companies who are contractors with the federal government under the Federal Acquisition Rules (FAR).  Language requiring the contractor to use e-Verify on all new and existing employees who will be working directly on a federal contract will be inserted into contracts after the effective date.

A phase-in period is allowed for initial implementation.  We can provide detailed instructions if this rule will affect your company.

No-Match Rule to be Rescinded

Back in the good news department, the Obama Administration is giving up on ICE “no-match” regulation.  The no-match saga began when ICE (the immigration enforcement agency) figured out that the Social Security Administration was sending letters to employers who were reporting wages for SSNs that did not match SSA records.  The reason was to clear up SSA records and attribute withholdings to the right person.

ICE decided this would be a good way to catch knowing hire violations.  So they issued a regulation providing strict and, in my opinion, unreasonable guidelines for companies to address the immigration status questions raised when a no-match letter was received.

Much push-back and federal litigation ensued.  After several rounds by the Bush Administration, the Obama Administration finally decided it was a losing battle. No word whether SSA will begin to issue no-match letters again.

If they do, please remember that a no-match letter still has immigration consequences.  Just because ICE doesn’t have a formal rule does not mean they will disregard how a company responds to a no-match letter.  If you receive one, please contact us to help you work through it to avoid later ICE problems.

New Visa Application Form Being Implemented

The Dept. of State is phasing-in an electronic visa application form, DS-160.  This form will be actually filed electronically with the consular post, rather than the current version (DS-156 and others) that is bar-coded electronically, but still must be physically filed with the consular post.

The form is currently required at 12 posts (some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) and will soon be required at others (other Mexican posts and Australia to start).  Phase-in will likely be slow due to DOS server capacity.

VWP Emergency or Temporary Passports must be Electronic

DOS also recently announced that visitors allowed to enter without visas through the “visa waiver” program must have an electronic passport even if the passport is an emergency or temporary one.  An electronic passport is one that has an embedded computer chip that contains biometric information.

Travelers without an electronic passport may be subject to additional inspection or denied entry.  Medical and other emergency situations will be considered.

Whew! That is a big update. Please contact us if we can be of assistance.


ICE Launches I-9 Audits

July 2, 2009

Please see the Immigration & Customs Enforcement press release below regarding this new enforcement initiative launched yesterday.

If you have received an audit, please let us know.

If you have not received an audit, this is a good time to make sure your I-9s are in good shape 🙂  These appear to be “paper” audits, which means you would receive a request for documents, rather than “operations”, which means you would receive a visit from an ICE agent.  An audit can spiral into an operation, of course.

Let us know if you have questions.

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ICE launches initiative to step-up audits of businesses’ employment records
652 businesses nationwide being served with audit notices today
WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide – which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
“ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE’s long-term strategy to address and deter illegal employment,” said Department of Homeland Security Assistant Secretary for ICE John Morton.
Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.
The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.
In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative being launched today is a direct result of this new strategy.

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June 23, 2009

The following is an update on developments in immigration law and procedure.

H-1B Cap Still Not Reached – But Stricter Standards Being Applied

How times have changed.  More than two months into the H-1B cap filing period and still more than 20,000 H-1Bs remain to be awarded of the available 65,000 “cap”.  For several years, these ran out the first filing day. Clearly the economic downturn has effected demand.  But this does provide an opportunity for companies to sponsor foreign workers that can help stimulate the economy through their unique job skills.  Remember that applications filed now for H-1B jobs will not take effect until October 1, 2009, if subject to the cap.

The Immigration Service has taken the opportunity of fewer H-1B filings to scrutinize those filings even more closely.  As some of our clients know, we are receiving extensive requests for evidence on some cases – even though we thoroughly document the cases as always.  It has been frustrating to see one employee receive an H-1B with no questions asked and another in the same job receive a big request for evidence.  But this is another example of the unpredictability of administrative law.

H-1B Investigations

Another new trend, which according to the Immigration Service will become more common, is the in-person investigation of H-1B applications.  Because of the increasing emphasis on fraud in all government programs (and especially the H-1B program), we have seen CIS officers come to the employer’s work site to question employees and obtain company records.  Iowa is on the leading edge of this trend because of an alleged scheme of H-1B fraud in the IT industry here.

If you receive a personal visit from CIS, here are some things to remember:

– These are CIS investigations, not ICE (or at least they have not been), and therefore are primarily fact-finding.

– You may (politely) refuse to answer questions until your attorney is present.  For example:  “We of course want to cooperate with you fully, but we would really like to have our attorney here, so can you please wait in the lobby until she arrives?”

– You can call us at any time to assist.  These inspections will likely occur during business hours, but feel free to call outside of business hours (cell numbers:  480-7115 – Lori, 554-7280- Amy, and 991-2783 – Nikki).  If we are too far away, we can find someone to attend the interview, or find some other way to handle this.

– Neither you nor your employee/prospective employee has done anything wrong by filing for an H-1B.  It is unnerving to have this experience, but it does not mean that the application will be denied.

– Employers should keep in mind obligations they may have regarding employee privacy.  If you have questions about employee privacy, we have experts at the firm who would be happy to answer them.  If you have concerns about releasing information requested, you can tell CIS that you need to check with counsel before releasing potentially restricted information.

Immigrant Visa Numbers Expected to Stall

The Visa Bulletin for July indicates that the EB2 waiting line stands at January 1, 2000, for India and China (the rest of the countries are current) and EB3 continues to be “unavailable” for all countries.  EB1 is “current” for all countries.

However, because of increased demand for religious worker (EB4) and investor (EB5) visas, the Department of State expects that visa numbers will move very slowly in the coming year (the new fiscal year starts October 1) unless the quotas are increased.

Only 140,000 employment-based (EB) visas are available each year in these categories and that includes spouses and children in addition to the sponsored worker.  Unused EB4 and EB5 numbers have been available to enhance the other categories in the past, helping general worker visa availability.

The EB1 category is for multinational managers and executives, outstanding professors and researchers, and persons with “extraordinary ability”.  We are happy to explore this category with anyone who believes that he or she qualifies.  Also remember that under “cross-chargeability” provisions, the country of birth of an accompanying spouse (and in very rare cases a parent) can be used instead of the country of the principal applicant if that would help escape a waiting line.  Other than these options, the only way for this situation to improve is to change the law.

Adjustment of Status Interviews Being Held Despite Backlogs

Given the backlogs discussed above, the Immigration Service has decided to adjudicate cases to the extent possible to remove deniable cases from the waiting line and to have approvable cases available to be finalized when the visa numbers progress.

Many applicants in the waiting line have received requests for evidence or interview notices.  This does not mean your case will be approved if a visa number is not available.

Interviews are scheduled for several reasons: to investigate a past criminal conviction, to evaluate the validity of a recent marriage, or to confirm the legitimacy of a job offer, for example.  If we receive the interview notice, we will send a detailed instruction letter and suggest a conference call to discuss how to approach the interview.  If you receive an interview notice and have not heard from us, please contact us.  Sometimes we do not receive government notices, although we are supposed to if we have a G-28 on file in your case.

To EAD or Not to EAD – That is the Question

Another consequence of the long waiting lines is that employment authorization document (EAD) and advance parole approvals must be renewed several times.  The Immigration Service is now approving most EADs in employment-based cases for two years, rather than one year.

Still, people who filed under the “old” rules, must pay a filing fee each time an EAD or advance parole is renewed.

It is true that if you are on H-1B (or L) and continue to work for the H-1B employer (and no other employer without an H-1B approval), you do not need the EAD or advance parole to maintain your status or to travel.

However, please be aware that if the H-1B employment ends, you will need an EAD to work anywhere else (unless the new employer is willing to transfer the H-1B) and an advance parole to travel outside the U.S.  These can take 90 days (or sometimes longer), during which waiting time you cannot work or travel outside the U.S.  Considering this, EAD and advance parole renewals may be reasonably-priced “insurance”.

Farewell to Gina Johnson

We will miss Gina, but wish her well as she moves to Texas to be closer to her family.  Thanks to Gina for all she did for our department and the firm!

Welcome Back Natalie!

The only way we can stand to let Gina leave is that Natalie Rivera is returning!  Natalie spent several months in El Salvador and fortunately for us was able to return right when Gina was scheduled to leave.  Natalie is also fluent in Spanish.

Employment Law Seminar Materials Available

If you missed our firm’s annual Employment Law Seminar and would like the materials, they are available in pdf format.  Just let us know and we’ll send them to you.

Obama Commits to Immigration Reform in 2009

April 10, 2009

Somewhat surprisingly, the Obama administration has stated that immigration reform will be on the plate this year – at least for debate. See

Given the election cycle, many believe that if reform does not happen this year, it would not happen until 2011. Stay tuned.

H-1B Cap NOT Reached

In another surprise, only about half of the “regular” H-1B visa allotment was filled in the initial filing period (April 1 – 7). Therefore, all applicants for H-1Bs who filed in this window will have their cases adjudicated (and granted if found eligible). Interestingly, almost the entire allotment of 20,000 H-1Bs for persons who earned U.S. master’s degree were received during this same period. This shows that the demand for H-1Bs is tied to high skill levels.

What does this mean? First, if you have a potential employee for whom you could not apply during the initial filing period (whether bachelor’s or master’s degree – or Ph.D. for that matter), you can still apply until the cap is reached. CIS will announce the last day of that they will take cases and will conduct a lottery to award H-1Bs received on that day.

Second, anyone who was in valid OPT status when the H-1B was filed will automatically be allowed to continue working through September 30 (unless the case is denied before then) even if the EAD expires before that date (“cap gap” work authorization).

Finally, it means that the H-1B program is working as it should. When the economy is down, employers are less likely to seek foreign talent to fill positions. Critics of the program maintain that H-1Bs are used to find “cheap labor” rather than needed skills. If this was true, employers would be more likely to seek H-1Bs in economic downturns so as to save on wages.

New I-9 and Employer Handbook

As noted last week, the new I-9 form went into effect April 3. CIS also has published a new Employer Handbook (form M-274)

The major change is that expired documents are no longer acceptable for I-9 purposes. This includes U.S. Passports or the new Passport Card.

The handbook clarifies many issues, such as when to re-verify an employee with an expiring document, and has been re-drafted to be more user-friendly.

However, CIS received numerous complaints about specific situations that are not covered in the form or handbook, but decided to proceed without amendment to address these items. Employers are again left with guesswork about how to correctly fill out this one page form.

Now is a good time to re-examine your I-9 policies to make sure they conform with the new rules and to review your I-9 procedures and training.

ICE Signals New Direction in Work Site Enforcement

Janet Napolitano, Secretary for the Department of Homeland Security, delayed a series of planned raids at the end of March to assess how and when the operations were being conducted. Sources say that this move signals a coming change in work site enforcement priorities that will focus on more on the employer and less on the worker.

This could mean more administrative audits or more management prosecutions – it is too early to tell. In the only major work site operation carried out so far under this Administration, several workers were arrested, but were later released and given work permits. This is a big change from the treatment of workers in Postville, Iowa, where most of the people released on humanitarian grounds following the raid of May 12, 2008, are still without work authorization and in ankle bracelets. Still, these actions are confusing.

Watch this space for further updates.

In Other News – for Employers

Employers interested in the new COBRA subsidy provisions can go to our website for a free FAQ that is updated as new information comes out. See:

As part of the economic stimulus bill, Congress extended the HIPAA privacy and security requirements to “business associates”. “Business associates” are individuals and entities that access health information in the course of providing services to a health care provider, health plan, or health care clearinghouse. Examples of clients who are business associates include information technology providers, attorneys, accountants, banks, collection agencies, third party administrators, and consultants. Previously, these business associates were only contractually obligated to comply with the HIPAA privacy regulations. Now they are required to comply not only with the privacy regulations but also the security regulations. Additionally, government enforcement efforts can now be directly targeted at the business associate.

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