Monday, August 11, 2008

Department of Labor Awards Back Pay For H-1B Workers

A series of recently released decisions by the Administrative Review Board of the U.S. Department of Labor again highlights the importance to H-1B employers and employees to carefully document their employment relationship and notify USCIS when that relationship terminates. This is particularly true in employment where "benching" of workers is common, such as the computer consulting field.

The DOL has awarded back pay with interest and civil fines against employers who fail to notify the USCIS after they have "terminated" an employee and in one case back pay was awarded even though the employer notified USCIS of the termination, but continued to correspond with the worker to help her find additional work. Both of these decisions occur in "benching" circumstances.

Benching occurs when an individual who has been approved for H-1B employment is in nonproductive status (i.e. "benched") "due to a decision by the employer." If the H-1B nonimmigrant is nonproductive due to lack of assigned work, lack of a permit or license, or some other employment related reason, the employer is required to pay the wages due under the Labor Condition Application which was filed with the H-1B application. Benching occurs routinely when computer professionals, contracted out to clients by a consulting company, complete the project to which they were assigned. They often remain "unproductive" until a new client is retained. The law provides that the employee must continue to be paid the higher of the actual wage or the prevailing wage during the benching period. This is to be distinguished from the nonproductive status that results at the "voluntary request and convenience" of the employee, such as maternity leave, an incapacitating accident, or a requested leave to care for a sick relative or extended vacation.

This leads to the ultimate question: when does employment "terminate." Clearly, if the employer notifies the H-1B employee in writing that his or her employment will end on a specific date, sends a copy of this notification to USCIS and ceases any further contact with the employee after the specified date, then employment will have terminated on the specified date.

Employers are reminded that USCIS regulations require the employer to notify CIS when the employment relationship has been terminated so that the petition is canceled by USCIS. The employer if further responsible to provide the employee with payment for transportation home under certain circumstances.

Sunday, August 10, 2008

ICE Steps Up Work Site Raids

In a series of highly controversial and highly publicized raids, ICE officials arrested scores of undocumented workers as well as allegedly corrupt company officials who assisted the workers in obtaining false work documents. The raids come on the heals of the controversial Postville, Iowa raid in May at which time over 300 undocumented workers were seized at Agriprocessor, the worlds largest kosher meat processor. That raid became notorious among civil rights advocates because of pressure applied by federal officials through an "exploding plea bargain" (sign the deal within 7 days of arrest or face maximum prosecution with 2-year mandatory minimum sentences) which required detainees to forfeit all possible immigration relief. Most are now serving 5-month federal prison terms which will be followed by immediate deportation," according to the American Immigration Lawyers Association. The willingness to use the threat of criminal prosecution is the newest weapon in the ICE arsenal.

So far in fiscal year 2008, ICE has made more than 3,700 administrative immigration arrests in connection with worksite enforcement investigations, including 850 involving criminal violations. In fiscal year 2007, ICE made more than 4,900 arrests in connection with worksite enforcement investigations, including 863 involving criminal violations.

The most recent raids this summer include the following:

  • More than 160 employees arrested at a Houston Rag-Exporting Company in June. The raid against Action Rags USA, an international supplier of used clothing and rags, resulted in criminal charges against the owner and manager, alleging a conspiracy to harbor illegal aliens, inducing illegal aliens to come to the U.S. and engaging in a pattern or practice of hiring illegal aliens. According to the criminal complaint, the year long investigation revealed that the company did not complete I-9 forms to verify eligibility for employment, hired undocumented aliens and paid them in cash until they were able to purchase fraudulent identity and social security cards from local flea markets.
  • Thirty-two arrested at a Puget Sound Area Aerospace Manufacturer in June. Aerospace Manufacturing Technologies, Inc. (AMT) is a leading supplier of frame and interior parts for commercial and military aircraft, providing many of the parts used in some of aviation's most popular airplanes, including the Boeing 737 and Boeing 777. The arrests followed an ICE audit of AMT that revealed discrepancies leading agents to believe that a small percentage of the company's employees used counterfeit documents to secure their jobs. There is no evidence AMT was aware the arrested workers had used false credentials to secure their employment. The investigation is ongoing.
  • Two alleged supervisors at the Agriprocessors Inc. plant in Postville, Iowa, were arrested in July on various criminal immigration and fraudulent identity charges. The criminal complaint alleges that, a few days before the May 12, 2008, execution of a search warrant at Agriprocessors, the Human Resources manager told a group of employees they needed new IDs and Social Security numbers to continue working at the company, and they would need to provide him with a photograph and $200 or $220. Fraudulent resident alien cards were allegedly supplied to Agriprocessors workers. The Complaint also alleges that the May 12 search resulted in seizing dozens of fraudulent permanent alien resident cards from offices within the human resources department at Agriprocessors.
  • Forty-five employees of a Maryland painting company were arrested in July and charged with administrative immigration violations. All of the individuals arrested will be placed in removal proceedings.
  • Eighteen workers at a Colorado Concrete Plant were arrested in mid July for being in the United States illegally. One is from El Salvador; the rest are from Mexico. The company fully cooperated with ICE during the operation; no criminal charges are anticipated against the company.

Employers are again advised to complete the I-9 form for EVERY employee and to do so in good faith. If the documents later turn out to be fraudulent, the employer is protected as long as the employer could not reasonably know that the documents were false.

Saturday, August 2, 2008

Declining Numbers of Undocumented Immigrants Reported

The number of illegal immigrants in the country has dropped by as much as 1.3 million in the past year, an 11 percent decline since a historic peak last August, according to the Center for Immigration Studies, a restriction immigration group based in Washington. The groups findings add to a growing body of studies indicating that the population of illegal immigrants in the United States is dropping significantly.

The more controversial issue is whether this decline can be attributed to a step up in enforcement policies or the declining economy. "The decline can easily be explained by changes in the economy," said Steve Levy, senior economist at the Center for Continuing Study of the California Economy in Palo Alto. He said California had lost 134,000 construction jobs since the summer of 2006.

The arguments provoked by the study reflected the difficulties of discussing options for halting illegal immigration, when researchers cannot agree on how many illegal immigrants there are and how they are affected by immigration enforcement.

The Center based their findings on census figures for foreign-born Hispanics ages 18 to 40 with a high school degree or less. They estimated that three-quarters of those Hispanics were illegal immigrants, and that they made up about two-thirds of the illegal immigrants in the United States.

Using those estimates, they concluded that the illegal immigrant population had dropped to 11.2 million, from a historic high of 12.5 million in August 2007.

Jeffrey Passel, a demographer at the Pew Hispanic Center in Washington who studies illegal immigration, said his research also showed a decline in immigrants. But because of recent changes in the census's data reporting, he said it was too soon to make precise calculations.

Wayne Cornelius, director of the Center for Comparative Immigration Studies at the University of California, San Diego, said Mr. Camarota and Ms. Jensenius had applied "highly arguable assumptions" to their data.

"They offer no direct evidence that fewer undocumented immigrants are attempting to come to the United States, or that fewer of them are getting in, or that more of those already here are leaving the United States as a result of enforcement efforts," said Mr. Cornelius, who has studied the impact of border enforcement over the past 15 years.

Friday, August 1, 2008

USCIS Clarifies Premium Processing for Certain I-140 Petitions

U.S. Citizenship & Immigration Services (USCIS) announced confirmed that Premium Processing Service requests for Form I-140 (Immigrant Petition for Alien Worker) will be limited to H-1B applicants who are nearing the end of their sixth year in H-1B nonimmigrant status.

Premium Processing Service offers 15 calendar-day processing for designated employment based petitions and applications upon request. There is a nonrefundable fee of $1,000 for this service. During the 15-day period, USCIS will issue an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation. USCIS previously designated certain classifications under Form I-140 for Premium Processing Service in the May 23, 2006 issue of the Federal Register.

USCIS is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:
  • Who are currently in an H-1B nonimmigrant status;
  • Whose sixth year will end within 60 days;
  • Who are only eligible for a further extension of H1-B nonimmigrant status under section 104 (c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
  • Who are ineligible to extend their H-1B status under Section 106(a) of AC21.

Section 104 (c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

USCIS Starts Online Service to Check FOIA Requests

U.S. Citizenship and Immigration Services (USCIS) recently launched the online FOIA Request Status Check service providing customers a quick and secure way to check the status of requests they have made under the Freedom of Information Act (FOIA). The service will work much like the existing procedure that allows applicants with pending immigration applications to check the status of their applications. Customers use the FOIA service by entering their assigned control number to receive a "pending" or "processed" response. A pending response indicates to the customer the position of their request relative to all other requests in the same processing track. A "processed" request indicates that the request was processed and the customer will be provided that processing date. USCIS will make daily updates to the status information.

Customers without Internet access can still obtain information on their FOIA requests by calling the USCIS FOIA Requester Service Center at (816) 350-5785 from 7 a.m. to 2:15 p.m. (Central Time). USCIS receives more than 110,000 requests annually for access to immigration records. These requests include both active cases, involving immigrants seeking information about pending or completed adjudications as well as relatives seeking immigration histories about family members.

ICE Program To Allow Fugitive Aliens To Leave Voluntarily

U.S. Immigration and Customs Enforcement (ICE) announced last week the launch of a pilot program, "Scheduled Departure," which allow fugitive aliens who have no criminal history and pose no threat to the community an opportunity to remain out of custody while they coordinate their departure from the U.S. with ICE. The program effectively permits aliens with deportation orders to surrender to ICE officials if they agree to leave the U.S. within 90 days. The program will allow these individuals to remain at liberty pending their departure, although some may be required to wear monitoring ankle "bracelets."

Initially, the Scheduled Departure Program will run from Aug 5th to Aug 22nd and may be expanded as ICE continues to evaluate the pilot. Non-criminal fugitive aliens who live in or around Santa Ana, Calif., San Diego, Phoenix, Chicago and Charlotte can visit their local ICE Offices to discuss their departure plans. Aliens who have not previously been detained by immigration officials or who have criminal records, or are determined to be a danger to the community are not eligible for this program and may be arrested and taken into custody if they report to ICE.

There are approximately 572,000 ICE fugitives in the United States, including 457,000 who do not have criminal histories. An ICE fugitive is defined as an alien who has failed to depart the United States based upon a final order of removal, deportation, or exclusion from a U.S. immigration judge, or who has failed to report to ICE after receiving notice to do so. Only non-criminal fugitive aliens are eligible for the program and will be screened by an ICE officer when reporting to verify status.

The Scheduled Departure Program will not alter a participant's immigration status or provide any immigration benefit. The program is not a form of voluntary departure or voluntary return. Participants will continue to have a final order of removal, deportation or exclusion.

As of this writing, exactly one alien has surrendered under this program.

USCIS Again Promises Two-Year Work Cards

U.S. Citizenship and Immigration Service (USCIS) announced that beginning on June 30, 2008 it will issue work cards valid for two years to individuals who have filed for permanent residence ("green cards") but whose applications cannot be approved because an immigrant visa number is not currently available.

The problem has become common for individuals who applied for permanent residency last summer when the State Department reported that all employment based green card categories were currently available. This announcement resulted in a deluge of applications in July and August that created long backlogs in the issuance of green cards that will likely continue for several more years. USCIS later qualified its position by announcing that to be eligible for a 2-year work card, the I-140 petition, filed by the employer prior to or concurrently with the green card application (I-485) must have been approved. If the I-140 is still pending, USCIS will only issue a 1-year work card.

USCIS will review the issue of visa retrogression at the time the work card application (I-765) is filed. However, if the priority date is current as of the date of filing, but later retrogresses while the I-765 application is pending, USCIS has the discretion to review the case again and issue the 2-year EAD. If the priority date is backlogged as of the date of filing, but later becomes current while the I-765 is pending, USCIS also has the discretion to review the case again and issue a 1-year EAD.