USCIS Enters the Digital Age

In an effort to modernize and systemize immigration policy, USCIS recently launched the USCIS Policy Manual Page. The Policy Manual page will be split into three phases: the first phase is information on USCIS Citizenship and Naturalization policies — following phases will encompass further updates to different areas of immigration law.

USCIS’s new Policy Manual will, at some point, take the place of the current Adjudicator’s Field Manual (AFM). The rejuvenated Policy Manual will digitally streamline most aspects of immigration policy, including policy updates, immigration forms, updated and extended table of contents, and URLs to INA and CFR sections. USCIS will also supply dates for when updates have occurred on the Policy Manual page, which can be found here.

USCIS is making progress towards e-filing and digitizing its data and adjudications. Last May, USCIS introduced its Electronic Immigration System (ELIS) program. The system was created to enable immigration benefit seekers and legal representatives to create an account to file for benefits, and extend visas, online. The program is now moving towards welcoming other visa processes.

Today, immigration law is like a piece of Swiss cheese: if the body of the cheese represents the law, the larger holes are filled in with regulations and the small holes with memos from USCIS Directors. This still leaves some situations unaddressed or ripe for litigation and denials.

The Takeaway

Currently, all the resources for naturalization, laws, regulations, memos and AFM, have been consolidated in the policy manual. We hope highly complex areas, such as H1B visa and L visa filings and adjudications can be consolidated in the policy manual, offering the filer the assurance that all the legal resources related to the filing have been exhausted. This will lend transparency to adjudications and certainty to the law. Dare I dream?

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Why Comprehensive Immigration Reform Has a Chance to Pass This Year

Since President Obama was inaugurated for his second term, he has made Comprehensive Immigration Reform (CIR) a key policy initiative for his administration. Interest groups from the left and right, and even some Republicans, such as Florida Sen. Marco Rubio, are also in support of a comprehensive overhaul of US immigration laws.

Condoleezza Rice (former Secretary of State in the Bush Administration), Henry Cisneros (former Housing and Urban Development Secretary) and Haley Barbour (former Mississippi Governor) are three of 4 leaders spearheading a high profile group by the Bipartisan Policy Center in Washington D.C. The group’s aim is to act as a sounding board, and to assist and shepherd the initiative into law by the summer of 2013.

Bipartisan support continues, as Senators from both parties have also offered Obama a framework of principles that they hope will be included in CIR. This bipartisan group consists of eight senators, four Democrats and four Republicans: Sens. Charles Schumer (D-N.Y.), John McCain (R-Ariz.), Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

A Round Up of Ideas Offered by Proponents

The draft of the Senators’ proposed bill, entitled the “Immigration Innovation Act”, increases available H1B visas from 65,000 to 115,000 visas every year. It will create a market-based H1B escalator, which will allow for additional visas if the cap is hit early during the filing season, with a ceiling of 300,000 visas. The visas will be adjusted based on market demands.

The 20,000 H1B visa cap for US Masters and PhD students will also be abolished, allowing the US employer to employ foreign students of US universities with advanced degrees without limit.

This bill will provide the ‘plug and play’ workers needed by all sectors of industry, whether it be healthcare or hospitality; workers who are ready to hit the ground running, and keep services for the American consumer consistently available.

In addition, there is a proposal to allow dependents of H1B visas to work on their H4 visas.  Of course, there will be an increase in the filing fee, dedicated to worker re-training at the state level in technical fields.

The senators’ framework stipulates that, before illegal US immigrants can attain “probationary legal status”, they must pass a background check, as well as pay fines and back taxes. Illegal immigrants with serious criminal backgrounds will not be eligible for legal status. Additionally, the framework states that illegal immigrants will not be granted work authorization until the government increases enforcement, such as expanded border surveillance, to protect and secure the nation’s borders.

The President’s Plan Is Not So Differrent

Obama’s proposal for immigration reform comes in four parts:

  1. Strengthen our borders;
  2. crack down on companies that hire undocumented workers;
  3. hold undocumented immigrants accountable before they can earn their citizenship; and
  4. streamline the legal immigration system for families, workers and employers.

Earned Citizenship

Almost 11 million undocumented immigrants live in the US. Obama proposes to give undocumented immigrants the legal means necessary to earn citizenship, which will also persuade them to come out from hiding and pay their taxes and adhere to the rules. Illegal immigrants will be held accountable: before they can obtain citizenship, they must pass national security and criminal background checks, pay back taxes and penalties, learn English, and go to the back of the line. Young people will also have the chance to gain citizenship faster if they seek higher education or serve in the military.

Mandatory E-verify

Sen. Chuck Grassley of Iowa has introduced a mandatory E-Verify bill, which will require all employers to verify the authorized work status of their US workers. Today, the E-Verify system is voluntary; however, Sen. Grassley’s bill requires all employers to comply within 1 year of enactment. The bill will reduce employer’s liability for wrongful termination, and use E-verify to screen an applicant with his/her consent. The bill also imposes a mandate on the Social Security Administration to develop algorithms to detect multiple users of single Social Security numbers.

How will CIR help our economy?

Our economy demands legal immigration that is simple and adept, so that it encourages the best and the brightest to remain in the USA. A shorter wait for permanent resident status for the highly educated immigrants will boost the economy — if it is easier for STEM graduates to stay in the US, they will bolster and create industries, therefore creating jobs.

University education in the US will get a boost from the revenues generated by foreign students and their families; estimates put the revenue generated by foreign students at about $20 to $40 billion dollars every year. Often, American universities spend several hundreds of thousands of dollars educating these students, only to lose them to Canada, Australia, UK and Europe, or the students’ home countries. A chance for these students to remain in the US and pursue their academic and entrepreneurial dreams will add to the economy.

The taxes collected from the highly educated will help ensure that our Social Security and Medicare budgets are met. This revenue stream will be enhanced by offering a chance for a legalized workforce to pay employment-based taxes. These taxes will reduce the strain on American social systems, such as hospitals and schools. A legal workforce will be paid the mandated prevailing wage. Without a Social Security Number, a worker cannot open a bank account, buy car insurance, obtain a driver’s license, or attend school or college. Hence, a legalized workforce will provide a boost to the insurance, banking and finance industries, and increase wages for all, as employers will now pay the legal minimum wage.

The proposals all call for supplemental visas so that foreign entrepreneurs wanting to begin startups, and foreign graduate students with STEM degrees, will either come to the US to work or remain in the US post-graduation. We want, and need, the best and brightest minds for the US to flourish.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Recent I-9 Fines Reduced by OCAHO

Recently, the Office of the Chief Administrative Hearing Officer (OCAHO) has shown a trend of leniency towards companies that are found to be noncompliant with ICE‘s Form I-9 rules and regulations. ICE, on the other hand, isn’t always as forgiving as OCAHO, which can be expressly seen in ICE’s cases against March Construction, Inc., Forsch Polymer Corp., BKR Restaurants (DBA Burger King) and Barnett Taylor (DBA Burger King).

In order to determine a baseline fine for companies, ICE surveys five factors:

  1. The size of the employer‘s business,
  2. The employer’s good faith,
  3. The severity of the violation(s),
  4. Whether individuals involved were unauthorized aliens, and
  5. A history of former violations by the employer.

March Construction, Inc.

The construction company, March Construction, was found liable for a total of 103 violations after assessments made by both ICE and OCAHO. For March Construction, ICE determined a baseline fine of $770, but increased the baseline by 15% due to March Construction’s supposed lack of good faith, severity of violations and employment of undocumented workers. ICE requested $885.50 per violation for a total of $86,933.

OCAHO agreed with ICE on the severity of the violations, however found that ICE had no evidence that March Construction was actually employing undocumented workers. Also, the company’s ability to pay the fines is a major factor. OCAHO ultimately asked for a reduced sum of $17,120.

Forsch Polymer, Corp.

In June 2010, ICE issued a Notice of Inspection (NOI) to Forsch Polymer, asking for Forms 1-9 for all employees from the past year. The company sent ICE only 12 completed I-9s, and was consequently charged with 11 violations of the Immigration Reform and Control Act (IRCA), among the violations were failing to properly complete an entire Form I-9 and certain sections of Form I-9. ICE requested a fine of $11,827.75.

However, OCAHO found ICE in error: OCAHO discovered that three of Forsch’s employees did not complete an I-9 within three days of being hired. OCAHO determined that this was the fault of ICE — ICE should have issued a notice and provided ample time for Forsch Polymer to correct these mistakes. OCAHO dismissed the allegations of the company’s failure to complete Forms I-9, but found ICE correct in finding fault with the employer for backdating several Forms I-9.

ICE sought a baseline fine of $935 per violation, aggravating the baseline penalties 5-15% for each violation due to the severity of violations, lack of good faith and employment of four unauthorized aliens. OCAHO ultimately asked for a reduced sum of $4,600.

Burger King

BKR Restaurants and Barnett Taylor both do business as Burger King restaurants, and were both issued NOIs on the same day in December 2007. BKR Restaurants was found liable for a total of 87 violations of IRCA for not having Forms I-9 ready for 22 employees, and improperly completing Forms I-9 for 65 employees. Barnett Taylor was issued similar charges for not having Forms I-9 ready for 74 employees, and improperly completing Forms I-9 for nine employees.

Both BKR Restaurants and Barnett Taylor gave reasons for their failure in properly completing and retaining Forms I-9 for their employees; however, neither restaurant had convincing evidence bolstering their claims. Although OCAHO has supported a trend of reducing penalty amounts, OCAHO still requires companies to provide adequate evidence  against ICE’s allegations. None of the companies’ explanations created a defense of impossibility, which can only be established if the Forms I-9 has been completed but then lost or destroyed in a burglary or fire.

No final penalties were brought upon either restaurant; instead, OCAHO gave both restaurants 30 days to make additional filings — allowing the companies to right their wrongs.

Lesson Learnt

Initiating, processing, maintaining and auditing procedures for companies and employers are absolutely vital to the health of a company. Such procedures will assist in minimizing and quantifying employer liability, and more importantly will assist and enable the counsel for the employer to craft a defense in the event of audit.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

DACA Applications Received and Approved

Since the Obama Administration announced the Deferred Children for Childhood Arrivals (DACA) Memorandum, which allows immigrants who meet certain requirements to apply for deferred action, 53,273 applications have successfully gone through the entire approval office and been accepted.

A total of 308,935 applications have been submitted for approval since August — 298,834 of those applications have been accepted for the approval process; 10,101 have been rejected; 273,203 have been scheduled for biometrics; and 124,572 are still under review for complete approval. Almost 4,827 average requests are filed per day.

Of the top countries of origin, Mexico is the highest with 212,514 applications received to date. The other top countries are El Salvador, Honduras, Guatemala, Peru, South Korea, Brazil, Colombia, Ecuador and the Philippines. Of the top states of residence, California is the highest with 81,858 applications received to date. The other top states of residence are Texas, New York, Florida, Illinois, North Carolina, Arizona, New Jersey, Georgia and Virginia.

There is no application deadline for DACA.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

USCIS Develops Tools to Help Foreign Entrepreneurs in the US

In late November, USCIS Director Alejandro Mayorkas revealed a new addition to the Entrepreneurs in Residence (EIR) initiative, an online resource center called Entrepreneur Pathways. The digital resource center will aid entrepreneurs, who are looking to start a business in the US, in maneuvering through the immigration process.

The EIR initiative

The USCIS EIR initiative was instituted in early 2012, and works to bolster USCIS policies and economic growth using industry expertise. The EIR Team is comprised of USCIS immigration and business experts who work together to standardize the process for obtaining various nonimmigrant visa categories that are often utilized by entrepreneurs.

Additionally, the EIR team has also:

  • Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on startup businesses and the environment for early-stage innovations;
  • Trained a team of specialized immigration officers to handle entrepreneur and startup cases;
  • Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
  • Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

One of the team’s main goals is to find a way for foreign entrepreneurs to establish a business in the US within the scope of immigration law. In order to continue to build momentum, the EIR team will remain in effect until April 2013.

What We Need Now

A great first step has been taken by USCIS using the present framework to answer a need for self-sponsorship by entrepreneurs; but the same processing-bottlenecks remain in place, such as long waits for filing adjustment of status to complete the ‘green card’ process due to backlogged priority dates. We may be better served instead if there were more treaty countries added to the E-Treaty Trader and Treaty Investor Visas, or if there was a separate category of E-Investor Visa at the $250,000 investment level with a requirement for four full-time jobs created.

Subscribe to read my blog regularly. Your comments are welcomed.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

The Struggle Over STEM Immigration

Science, technology, engineering and mathematics (STEM) graduates are foreign-born students who have obtained graduate degrees from American universities in one of these four fields. Many of these students are vying for a green card to stay in the US; but the demand for green cards far outstripped supply. The result is that the best and the brightest are leaving the US for greener immigration pastures: either going back home, or to other more ‘immigrant’ friendly countries, like Canada.

In a previous blog post, I discussed how STEM graduates will help the US come out of its recession. We are currently experiencing a brain drain; and in order to remain a global force, we must reform our immigration policies. Multiple bills suggesting an increase in green cards for STEM graduates have been proposed to Congress, but none have yet to pass.

STEM Jobs Act

On Friday, November 30, the House passed the STEM Jobs Act, which reallocates 55,000 green cards per year to students with STEM degrees; the new act also seeks to remove the lottery green card program. Green cards are first made available to STEM graduates with PhDs — remaining green cards are then given to STEM graduates with Masters.

Dueling Bills

We must applaud both political parties for their sensitivity to the issue of STEM jobs, but there is a very obvious political divide. While the Republican initiative moves to abolish the 55,000 diversity visas, the Democrats want to preserve these visas for persons from under-represented countries.

This uncertainty is keeping employers from hiring qualified candidates, and keeping qualified US graduates from the US. Keep in mind, by most accounts, the education industry is a $27 billion industry with a multiplier effect on local economies.

What can we do?

Employers must lobby their Senate and House Representatives about the issue. The inaction is holding our economy hostage.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Planning for The New Year — H1B 2014

I was attending a Christmas party last week when a friend, who works for a prominent local employer, asked me, “What’s the latest in the immigration world?”

His question got me thinking: I am always taking urgent conference calls from employers who have visa issues, and filing visas at the very last moment. I think with 20-20 foresight (sic), now may be the best time to get employers to think about planning for the new hiring cycle and for new US visas, especially as the dreaded H1B visa season starts in a few months.

In 2012, H1B visas were over by June 15th, much faster than 2011 when the visas quota was finished only in mid-December. This H1B season, I expect H1B visas to be exhausted much earlier. We need to plan.

Immigration Strategy

Typical attorney consultations are discussions about which visa is appropriate for an employee — not much of the discussion focuses on which visa can be used for future employees. However it is important for companies to also look to the future, and to begin thinking about their employees’ immigration needs while planning product lines and office locations. Company strategy on immigration should involve the highest echelons who can make decisions about US and global requirements.

Global Companies

Our clients’ employees crisscross the world, going from USA to China to India, or from India to Brazil to Switzerland and beyond. Their visa journeys need to be mapped and matched to product roll-out dates; manufacturing skill requirements; economic marketing cycles; and changing individual country visa regulations. Most nations are seeking to protect native workers’ rights; hence, foreign workers have to pass more rigorous tests to obtain work permits.

US Employers

A company with several US business units, and with a rolling roster of demanding clients whose software products need to be completed timely and early, need to identify employees early to meet their goals. Our economic climate certainly dictates a live or die mentality.

Often companies think of the visa puzzle piece too late in the game: either when there is insufficient time to file, or when the need for a visa is urgent due to product rollout; however, at this point, visa quotas are often exhausted early in the year.

So how can an employer plan?

For US employment, the first step is to identify employees who are potential candidates for a new H1B visa. Either these persons are overseas or they are in the US, changing status from a non-immigrant visa to a new H1B, and are cap subject.

Employers must obtain their employees’ complete immigration history. History serves a dual purpose: both to identify potential workers who have no immigration violations, and to ascertain the nature and duration of other visa statuses that may reduce the amount of time an employee can validly spend on H1B visa status in the US.

Secondly, companies should determine a project’s actual start date in the US, so that visa dates can be tailored. If the employee is cap subject, they cannot start work until October 1.

What is the employee’s history?

While collecting an employee’s immigration history, also collect details of the employee’s experience in his/her industry, and educational qualifications for the position for which the future employee is being considered. This is to qualify the worker for an H1B visa in a specialty occupation, which requires a “theoretical and practical application of a body of highly specialized knowledge.”

Global Employees

Today, employers have global operations and often like to use their specialists in both the US and other countries. Most nations have a ‘work visa’ process, or an ‘intra-company transfer employee’ visa. Qualifying for this visa requires detailed employer information; as well as employee education, experience and travel document details. Even in the information age where exchange is instantaneous, filing for visas requires preparation and extra processing time if filing in a foreign system with foreign government requirements that do not match US processes. Natural disasters can also play a role: Hurricane Sandy took a heavy toll on Washington DC-based foreign visa processing units.

The Takeaway

Plan, Plan, Plan. Start the immigration strategy process when the project is in the drawing board stage. Work with an immigration attorney to assist you in identifying visa requirements and timelines in the filing process. The result could be less costly and stressful, and you may actually enjoy the holidays this year.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

OSC Document Abuse Settlements

The Errors that Employers Commit

Some hiring mistakes end up costing employers a lot of money and time, and loss of reputation. This past October, the Office of Special Counsel (OSC) arrived at an agreement with the New Jersey-based home healthcare provider, Advantage Home Care, LLC, which was charged for violating the anti-discrimination provision of the Immigration and Nationality Act (INA). Advantage Home Care was asking new hires, who were lawful permanent residents, to present additional and different documents during the Form I-9 employment eligibility verification process.

The claim was brought to OSC by an individual who applied for a job. When the individual applied to Advantage Home Care, the company ran a criminal background check and wrongly determined that the individual was using an invalid Social Security number (SSN). The individual went to the Social Security Administration, which concluded that the SSN was valid; however, Advantage Home Care would not employ the applicant. Upon further investigation, OSC found that Advantage Home Care required lawful permanent residents to provide more documents to validate work authorization than US citizens. The INA prohibits such discrimination.

In early October, similar charges were brought upon Las Vegas-based Tuscany Hotel and Casino, LLC. The company was also found to be using discriminatory practices during the employment eligibility verification and re-verification processes.

A complaint was filed with OSC in May 2012, asserting that Tuscany was asking non-citizen job applicants to provide additional or different documents during the work authorization process; US Citizen applicants were not asked to present more documents. Once hired, and in order to remain employed, the company then asked non-citizen employees to provide further document requests during the re-verification process. Moreover, non-citizen employees were subject to severe reviews, which US citizen employees didn’t have to endure.

Expensive Mistakes for Employers

Per OSC’s agreement with Advantage Home Care, the company will pay $1,633 to the individual and $46,575 in civil penalties to the US. Advantage Home Care must also pay back pay to previous job applicants who suffered financially from the company’s policy. Additionally, the company’s human resources staff will be trained in employers’ responsibilities and best practices to prevent discrimination during the employment eligibility verification process. In order to ensure compliance, Advantage Home Care’s staff will also be monitored by OSC for three years.

Under the agreement, Tuscany will pay $49,000 in civil penalties to the US and make payments to the complainant. Tuscany will administer new employment eligibility verification policies and practices that will eradicate any employment-based discrimination. Additionally, the company will train its staff on how best to avoid discrimination in the verification process, and will be monitored for compliance.

Lessons Learnt

Employers must train HR personnel on the proper documentation methods for ‘onboarding’ employees. In addition to training, written guidance or manuals for proper intake are necessary to avoid financial penalties, and work stoppage due to worksite audit. Losses may occur because workers are redirected to answering the government, providing requested documents and undergoing mandatory training as part of the worksite enforcement action. An employer’s reputation can suffer because the audit and fines are reported on government and public websites, and news media. Employers can use an immigration attorney to prevent these costly mistakes.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

How DACA Affects Employers

As of today, USCIS has received 298,834 applications for Deferred Action for Childhood Arrivals (DACA) eligibility. Of these, 53,273 have been approved; workers who have been approved will either seek new employment or continue with past employment. My previous blog post from mid-October discussed how employers could unintentionally admit to ‘knowingly’ hiring unauthorized workers who apply for DACA.

DACA allows illegal immigrants, who meet certain guidelines, to remain in the US. Individuals who receive approval, also receive USCIS-issue work authorization cards called Employment Authorization Document (EAD) to demonstrate eligibility to work in the US for US employers.

Under current law, employers must keep a Form I-9 for all hired employees, both citizens and non-citizens, who are engaged to work in the US. USCIS has now issued specific guidance for employers about treatment of DACA recipients’ EAD cards, and procedures to record and process their Forms I-9 for these employees.

Hiring new Employees with EAD cards issued under DACA

In order to properly complete a Form I-9, certain documentation is required to prove both identity and employment authorization; under List A, an unexpired EAD is an acceptable document for Form I-9 completion.

The DACA EAD provides proof that an employee has been allowed to stay in the US and has been authorized to work, but has no legal status. The employer can enter EAD information in Section 2 under List A since an EAD card provides both proof of identity and work authorization. The EAD alone provides I-9 proof of the employee’s ability to work in the US; if the employer is presented with an EAD, he or she may not ask for additional documents. When an EAD expires, the employer must reverify that the employee still has work authorization in Section 3 of Form I-9.

Guidance for Processing Existing Employees

Employers who collect updated documentation from employees should examine the employee’s previously completed Form I-9 to decide whether a new Form I-9 should be completed for that employee, or decide to only complete Section 3 of the original Form I-9.

Employers should complete a new Form I-9, write the original hire date in Section 2 and attach the new I-9 to the old I-9 if any of the following changes from Section 1 of the previously completed I-9:

  • employee’s name
  • date of birth
  • attestation
  • social security number (if one was provided)

Employers should only complete Section 3 of the previously completed I-9 if:

  • information from Section 1 hasn’t changed or if
  • the employee provides a new EAD

The employer should examine the documentation for authenticity; and, if provided, record the document title, number and expiration date. Employers should also sign and date Section 3.

Guidance on E-Verify

If the employer must complete a new Form I-9, and uses E-Verify, then the employer should confirm the new I-9 information through E-Verify. If the employer only has to complete Section 3 of I-9, then an E-Verify check is not required.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Employment Practices that Could Lead to Immigration Discrimination

In order to help employers, the Office of Special Counsel (OSC) sometimes answers immigration-related questions about unfair employment practices, such as an employee presenting either invalid or fraudulent documents.

When an employee provides fraudulent documents, an employer is allowed to request the employee to present a different document. However, the employer’s concern may be that the employee could be committing a felony; and that if the employer asks for more documentation, the employee might commit an additional felony.

The employer needs to remember that the Immigration and Nationality Act (INA) disallows four types of unlawful conduct. The employer is not allowed to discriminate on the basis of:

1. citizenship or immigration status discrimination;
2. national origin discrimination
3. unfair documentary practices during the employment eligibility verification (Form 1-9) process (“document abuse”); and
4 retaliation for filing a charge or asserting rights under the anti-discrimination provision.

(source)

An employer might be in violation of USCIS policy 8 U.S.C. § 1324a, which makes employment of unauthorized aliens unlawful if the employer is aware that a document is fraudulent but accepts it. If an employer rejects a document that seems to be invalid, then the employer is allowed to ask the employee to present a different document from the Lists of Acceptable Documents from Form I-9. In order to steer clear of violating anti-discrimination laws, employers should examine documents equally for all employees.

Company Policy

Another issue pertains to whether a company policy can fire anyone that presents fraudulent documents, and regard such individuals as unqualified for rehire. It is illegal for an employer to ‘knowingly’ hire an individual who is not authorized to work in the US. The statue 8 U.S.C. § 1324a(a)(1) states, “Employers determined to have knowingly hired or continued to employ unauthorized workers…will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted.” If an employee’s document is genuine but the employer deems it to be fraudulent, then the employee can bring charges under the anti-discrimination provision, or INA. During such a case, OSC’s investigation would concentrate on the employer’s objective.

Sometimes an employer can have a company policy of regarding individuals who provide invalid documents as unqualified for rehire. An employee can file charges under the anti-discrimination policy if the employer disallows a work-authorized employee from employment, based on the individual’s previously undocumented status. This sort of “dishonest policy” would be investigated by OSC, wherein OSC would focus on whether the policy is consistently applied, without observance of citizenship status or supposed national origin. OSC will also determine if the employee was terminated based on citizenship status discrimination. However, a consistent treatment of a “dishonesty policy” would not be a violation of the anti-discrimination provision.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather