What happens when the Government asks to inspect Forms I-9?

The government asks an employer for Forms I-9 in order to verify and identify the employer employees. There are several steps in the process of an inspection on Form I-9.

First, either officials from the Department of Justice, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor will inspect an employer‘s Forms I-9. Typically a written Notice of Inspection (NOI) will be sent to the employer three days prior to the inspection, via U.S. mail. However, officials may opt out of giving the employer any notice, instead using subpoenas and warrants to acquire the employer‘s Forms I-9.

Officials commonly choose where inspections will occur. An officials might require the employer to bring Forms I-9 to an ICE Field Office. Sometimes an inspection will be conducted where the forms are stored.

The five general steps to an inspection as follows:
1. Notice of Inspection (NOI)
As described earlier, a written NOI is sent to the employer, giving him or her three days notice.
2. Obligation to make records available
At the time of inspection, all Forms I-9 and attachments must be available at the location where the inspection was requested.
3. Recruiters or referrers
A recruiter or referrer for a fee, who has designated an employer to complete the employment verification procedures, may present a photocopy of Forms I-9 and attachments instead of presenting Forms I-9 and attachments in its original form.
4. Compliance with inspection
Employers who refuse to present Forms I-9 will be in violation of law.
5. Use of subpoena authority
An officer may be forced to attain Forms I-9 and attachments by issuing a subpoena if the employer has not complied with a previous request to present Forms I-9.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Issue of 221(g) and Other Delays for H-1bs in India

H-1b fraud is rampant in India, and is one of the most falsified visas in India. Many Indian H-1b cases require site visits, as it is necessary for officials to authenticate H-1b applicants’ experience letters due to applicants fabricating employment. According to the India Biannual Fraud Update, 2009, the city of Hyderabad, in Andhra Pradesh, India, is a center for counterfeit documentation in educational qualifications, experience letters and nonexistent companies. Worldwide there are 300,000 H-1b applications that are filed, 100,000 of which that are adjudicated in India.

According to the Fraud Update, Hyderabadi applicants make up over 30% of the consulate’s visa workload. In the first three months of H-1b assessment, the Consulate General of Hyderabad detained and prosecuted multiple vendors on the basis of falsified documents. Some Hyderabadi applicants even tried to submit their applications through the Mumbai Consulate by alleging that their employer was in Pune, which is in the jurisdiction of the Mumbai Consulate. Applicants often used these shell companies so that they could change jurisdictions and avoid applying through the Chennai consulate.

The 2009 Fraud Report enumerated high volumes of fraudulent documentation, namely in education degrees and experience letters. Since then, India has been on high alert and visas are being re-adjudicated—reexamined based on evidence presented by the beneficiary at the interview. It was discovered that H-1b applicants who did not meet minimum education qualifications were being approved for H1B visas. In Hyderabad, India, when the applicants’ experience letters were investigated through site visits to verify the existence of 150 companies, 77% of these employers turned out to be fraudulent. The outcome of this fraud report has led to a higher number of requests for evidence in the US, and a greater number of applicants being sent into administrative processing by the consulates for both H-1b and L-1b visas. The Chennai Consulate has hosted a worldwide H and L fraud conference, which has been attended by, amongst others, Department of Homeland Security (DHS), Kentucky Consular Center (KCC), and multiple posts that adjudicate a number of Indian H-1b applicants.

In other words, the outcome is that even if you have an approved H-1b, there is a 27% chance worldwide of being re-judged, reexamined and re-adjudicated by an officer at the consulate. At this time, there is no deference being accorded to approvals by US Citizenship and Immigration Services (USCIS) of H-1b applications. The H-1b visa holder who has been approved in the US, either through change of status, extension of status, or change of employer, now faces a prospect of going through another judgment process. At the consulate, the H-1b visa applicant is either given a visa stamp of approval in their passport or given a notice under Immigration and Naturalization Act (INA) 221(g). Or worse yet, the applicant is denied.

A 221(g) notice will generally ask for more documentation from the employer and from the employee, and for documentation that demonstrates an employer-employee relationship between the two. H-1b applicants must establish the existence of an employer-employee relationship with documentation that demonstrates that the requirements of experience and employment have been met. Among the various documents required by the consulate are petitions of tax returns; petitions of employees; state tax returns; employee’s work itinerary; a detailed account of the development project that the employee is working on; and academic credentials.

Under the US Department of State (DOS), Foreign Affairs Manual volume 9, FAM 41.53, Congress is given the authority to determine whether the alien meets the required qualifications for “H” status. This approval, in general, is to be considered prima facie evidence that the employee has met the requirements for H visa classification. According to 9 FAM 41.53 N2.2, “DOS does not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.” On the other hand, even if DHS approves the petition, this does not relieve the employee from establishing that they are eligible for the visa at the visa interview. New information could be made available to DOS during the interview, which could determine whether the consular officer should or should not approve H status without additional evidence. This evidence should bear a reasonable relationship to the issue, but the consular officer should not reconsider the petition because of legal or factual disagreements with DHS. In fact, 9 FAM 41.53 N2.2 states that, “By mandating a preliminary petition process, Congress placed responsibility and authority with DHS to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” These are the specific directions to DOS consular officers to accord deference to USCIS decisions. Yet, in a knee jerk reaction to the 2009 Fraud Report, it appears that far more petitions are issued 221(g) notices, demanding more documentation despite apparent bona fides established by the visa applicant and employer.

Further, Regulation 9 FAM 41.53 N2.2 also authorizes consular officers to process applications that appear legitimate; identify applications that require local investigation; and identify applications that require referral to USCIS for reconsideration. To avoid inconveniencing petitioners and beneficiaries, and causing duplication by DOS, the consular officer must have specific evidence of a requirement of automatic revocation of the visa; misinterpretation in the petition process; a lack of qualification on the part of the beneficiary; or if other previously unknown facts come to light that might alter a USCIS finding of approval.

When a consular officer seeks reconsideration of previously approved USCIS petition, the consular officer sends the application to KCC with Form DS-3099. The consular officer includes pertinent documentation, or a written memorandum of evidence supporting the request for reconsideration. KCC forwards the request to the approving USCIS office; then KCC scans the request and all the supporting documents to Petition Information Management Service (PIMS). KCC maintains a copy and tracks consular revocation requests. USCIS reconsiders the petition and sends back an approval or denial. This process may take several weeks or months.

The effect of this delay is that employees who are currently employed by US companies on various projects, and who are spending their vacation time with friends and family abroad, are now delayed 3-6 months in their home country. US companies are scrambling to fill those unexpected vacancies; there is a huge loss of revenue and profitability for US companies in the US. Consular officers often reject H-1b petitions based on an erroneous belief that given the high rate of unemployment in the US, those positions filled by the H-1b visa holder should actually be filled by a US citizen.

There is also a belief that US employers want to employ H-1b visa holders instead of US citizens — that US workers are fired so US companies may hire foreign nationals on H-1b visas who may work for lower pay. This is not true. Under current statute and regulations, H-1b visa holders must be paid the higher of the prevailing wage or the actual wage paid to US citizens in similar employment. In fact, every US employer attests to this fact when they file for Labor Condition Application (LCA) certification with the Department of Labor (DOL). US companies pay approximately $6,000 in additional legal and government imposed fees when hiring an H-1b visa holder.

Offsite working is a common practice in the computer industry. Large US companies in the business process consulting industry employ foreign nationals, and place these H-1b visa holders at customer work sites in order to design, build; and deliver business driven technology solutions that enable customers to get a competitive advantage in their market place. Due to the nature of the products and services offered by these US companies to its clients, it is necessary for US employers in this particular industry to provide its products and services directly at the customer’s location. When consular officers see a beneficiary of an H-1b visa not working at the employer’s offices but at a third party location, the immediate reaction by a consular official is to require the H-1b applicant’s employer to provide documentation of employee-employer relationship —- the right to control and the actual control. This requires both employer and employee to provide tax documentation, employee payroll, state tax payroll, contract letters, agreements with customers, and signed employee benefit manuals. It apparently does not matter that some or all of this information may be either confidential or proprietary to the US employer and their customer. Employers are between a rock and a hard place; between disclosing too much private or proprietary information, and risking a denial if these documents are not provided.

To counter these issues presented to and by consular officers, employers and employees should follow the subsequent list of Best Management Practices (BMPs) for adjudicating while applying for H-1b visas.

As an employee, you should avoid traveling outside the US; it could be detrimental to the status of your H-1b. If you must travel, you should notify your employer and attorney and wait for consent, an application review and an update by your immigration attorney, before traveling abroad. Your DS-160 Form should not say “unemployed” while you are not working for your employer. Obtain a vacation letter from your manager.

In terms of the application, the beneficiary should be aware of what the company says about him or her. The beneficiary must have supporting evidence that proves he or she has the skills and expertise to do the job. The beneficiary should also know the organizational framework of the company, and know how education and experience qualifications make him or her eligible for H-1b. If the beneficiary has been with the employer for over two years, then it is wise to begin the Labor and Green Card process and fill out an I-140 Form. Before submitting the H-1b application, make a full copy of the petition with all the supporting documents and study the original H-1b application. Be prepared to answer questions that are not within the scope of the application. Remember to dress business casual, and do not be modest about your accomplishments.

As an employer, the support letter should describe the company’s product, and the employer must ensure that the application meets the criteria of a US company. The employer must identify job duties, qualifications and experience for employees; and that the employer is the source of tools and knowledge for the job. The employer must prove that he or she manages the employee, and has the authority to delegate supplementary tasks and hire and fire, as well as review employee performance and furnish company benefits. Evidence should support the fact that the employer pays employees’ wages, and pays federal, state and local taxes on the employee’s wages. The employer must show that he or she claims the beneficiary as an employee on tax filings. The employer must also provide employee records, corporate tax returns and payroll for employees. In addition, companies must ensure that any publicly available information about their business is accurate. Consular officers either check Vibe or perform a quick search online about the company.

Please contact Mahadevan Law Office if you have any further questions.
Phone: 314-725-9958
Email: nsm@lawyersyoucantalkto.com
Website: www.lawyersyoucantalkto.com

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part III: How to Fill Out Section 1 of Form I-9

This is Part III of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. Employees should fill out the first section of Form I-9 before the first paid workday. A translator can help the employee complete Section 1. The best practice for an employer is to have the potential employee complete Section 1 and present documents from either List A, or List B and List C.

Both the employee and employer need to work together to fill out Section 1 of Form I-9.

Employees should provide:
• Their full legal name—women should give their maiden name, including hyphenated names, as it appears on their identity documents
• Current address
• Date of birth
Social security number
• Citizenship or immigration status
• Alien or Admission number, if applicable
• Date employment authorization expires
• Signature and date
• If a translator helps the employee, then the translator has to provide his or her name, address, signature, and date the form
• The employee and translator’s signatures must be dated on the same day

Employers must confirm:
• All employee’s information in Section 1
• The employee and translator have both signed and dated Section 1
• The employee specified when their employment authorization ends
• The employee’s employment authorization is valid and current on the date of the employee signing and dating Form I-9
• And communicate to the employee, at least 90 days before employment authorization expires, that they need to present a List A or List C document to show continued employment authorization. Employees must present these documents on the date their current employment authorization expires.

Which employers need to collect Form I-9? Check the previous post for a full description.

Next week : Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part II: Which Employers Collect Form I-9

This is Part II of a blog series for employers to maintain and and complete Form I-9, and to avoid audit by US Immigration and Customs Enforcement (ICE).

ICE uses Form I-9 to protect national security and to protect employees from employers; I-9 is used to prevent employers from hiring unauthorized workers and to prevent discriminatory practices against employees. It is vital that employers keep a record of I-9 for every employee hired in the US, both for citizens and non-citizens. Put simply, Form I-9 is a documentation of an employee’s eligibility to work in the US, and a worker’s proof of identity. I-9 is retained in order to show the validity and authenticity of those documents.

Which employers need to collect Form I-9? All employers must maintain I-9 for all US employees that work for pay and benefits; all employers must fill out I-9 for employees hired after Nov. 6, 1986.

Employers should file Form I-9 for employees who are on specific visas; for employees that are asylees or refugees; for students; for those on some other kind of non-immigrant visa with authorization to work; or for those who are US citizens and legal permanent residents (i.e. green card holders).

Employees who do not need Form I-9 are those that work only intermittently for their employers; or employees over whom the employer has no control in directing their work.

Who is an employer? Check the previous post for a full description.

Next week : Part III: How to fill Section 1 of Form I-9

Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2011. All rights reserved.

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Creating Your Website

This time my post is going to be short and sweet. It is evident that attention spans are brief these days! 

I hired an internet marketer to develop and publish my site. It was supposed to be up today, but of course I did not know that the ‘ftp’ devils were lurking! If your designer does not have ‘ftp’ access to your site, they cannot upload the beautiful pages the designer and internet marketer have created for you. I use Yahoo! as my domain host. Go to small business site on Yahoo!, click on ‘Business Control Panel’, choose ‘web hosting control panel’, then ‘password’ tab; create a new user for the web designer to upload the pages she has created for your website and then voila!!! Your pages are published to your domain. I thought I was going to practice law, but along the way I learned to be a web techie, an internet surfer and all around geek.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Marketing Your Law Practice

Marketing your law practice is something of an art and science. I started out by mailing 300 announcement cards to everyone I knew, and in ‘LinkedIn’ jargon, 2nd and 3rd connections. Of course these days you can twitter, Facebook, Linkedin and blog your practice. But who is watching, listening and reading? So we are back to who is your customer and how do you identify them, so that you can target them and let them know you exist. As lawyers, we have to pursue the potential client within the embrace of legal ethics. Yes! lawyers are bound by legal ethical rules set by the State Supreme Court. So there are rules; such as if you are a personal injury attorney, no ambulance chasing, especially in Missouri.  The Missouri ethics rules are found at – http://www.law.cornell.edu/ethics/mo/code/MO_CODE.HTM. There are rules about communicating lawyer services to clients, and advertising those services.  These include disclaimers to be exhibited prominently on any correspondence with prospective clients.

Going back to the basics though: how do you identify your customer? These days it is not only the small lawyer in solo practice struggling with this paradigm, but the large law firms don’t want to retain you if you are not a rainmaker. Make your own monsoon! But how? For starters, begin by making a list of existing customers. What do they have in common? Look at their age, gender, geographic area, case type; were they referred to you? By whom? How did they contact you? If you don’t have this information, then you need to start an intake sheet for each client with their identifying information for purposes of narrowing the type of successful customer or type of client you want in your practice. While I am on the subject, start by purging your practice of clients who are deadbeats, slow or non-payers. It sounds contrary, especially in this economy, but having a successful case is largely not only managing the case, but the client. Happy attorney, happy client, just like a marriage. You need to get past the honeymoon period. Even in this electronic age, grassroots marketing works, and one client at a time does pay off. Early on, I understood that my strengths lay in a particular type of client. Mine are professional, who are demanding and exacting, and require complete discretion; but these are paying clients with immediate problems of staying legal in this country. A lawyer friend told me that the secret to a successful lawyer was pandering to fear. Maybe there is some truth to that. Lawyers solve problems, yet there are ethical minefields awaiting the unwary, overzealous attorney who targets and fans the flames of fear. Lawyers deal in worst case scenarios because the good ones take care of themselves. Clients are like cases in law school. Identify the issue, get the facts, seek solutions and solve the problem. Simple?! Not really. With practice you can do it, but only if you know the type of client that is good for you. Why should you identify this good client? Because it will make you a happy attorney. Didn’t I just write happy attorney, happy client? Your practice will grow and make you money!

Happy monsooning! See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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Starting a New Business

I started out 7 years ago as a semi-solo attorney with another lawyer. Of course the first decision was to practice on my own, but what?  I looked at my natural inclinations (other than wanting to goof off!). So I started with immigration law and estate planning. Since then I have added business and real estate. I think I want to write about starting a business and the interesting cases I come across from time to time. No, I am not talking John Grisham Law and Order interesting, but about the situations that affect you and me. I am very interested in marketing my practice. Just think: law is a crowded field. What distinguishes my business from another? Service. We are lawyers you can talk to, just like our url spells. Repeat clients tell it best. When they come back you know you are doing your job and you have delivered. I now try to teach this to the budding puppy sharks  in law school. Donny Deutsch’s TV show is a great place to start to learn about business. This economy demands new ways to reach out and ‘serve’ someone. Making an attempt to help is more in demand than ever. I have a free legal clinic at the Hindu Temple in St. Louis, and try to help a non-profit SAWERAA that aids stranded South Asian women who are victims of domestic violence (DV). Imagine not being able to communicate with no English speaking skills and the cultural divide that condones DV–the isolation and fear! The St. Louis County Circuit Court has a very good website for victims of domestic violence. The site allows the visitor to hide the visit by clicking on a link that sends her back to yahoo.com. Imagine the perpetrator does not even have to know of the visit. There is a lot of useful information.

See you in my next post.

Nalini S Mahadevan, JD, MBA
Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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