To VIBE or not to VIBE? Employers can avoid RFEs, NOID, 221(g)

MJ went up to the window at the US Consulate–he was there for an H-1B interview. The process normally takes about 5-10 minutes at the window. Behind him were more nervous interviewees, waiting their turn.

The consular officer (CO) went through the papers, “Who is your employer?” he asked. MJ replied, “XYZ”. The CO checked his database and did not find XYZ, so he searched the company name online; still no information. The CO believed the applicant was employed by the company but since the new Neufeld Memo, issued last year, he had to make sure the applicant was actually ‘employed’ by XYZ and that XYZ really existed. He could find no corroboration; CO felt there was insufficient documentation in the application, so the CO issued a request under INA 221(g) to the applicant.

Applicant was required to produce more employer tax records, payroll records and other information that would corroborate the employer’s self attestations in the application. Until that time the applicant was in administrative processing, which could take up to 6 months. The company was out a valuable resource and was losing money on their project because MJ was delayed overseas.

Unfortunately for MJ, his employer’s information was not included in Validation Instrument for Business Enterprises (VIBE). A web-based tool, VIBE was designed to enhance USCIS’s adjudications of certain employment-based immigration petitions. VIBE uses commercially available data from an independent information provider (IIP) (Dun & Bradstreet) to validate basic information about companies or organizations petitioning to employ certain foreign workers.

USCIS may also send an RFE or NOID or Notice under 221(g) because of the information in VIBE. Petitioners MUST respond to these RFEs or NOIDs or Notice under 221(g); failure to respond may result in the denial of the petition.

Currently, the information in the VIBE program includes: business activities, such as type of business; NAICS codes (North American Industry Classification System code); trade payment information; and status (active or inactive). VIBE also includes financial standing, including sales volume and credit standing; number of employees, both on-site and globally; relationships with other entities, including foreign affiliates; type of office (examples include single entities, branches, subsidiaries and headquarters.); type of legal entity: for example, LLC, partnership or corporation; company executives; date of establishment as a business entity; current physical address.

Adjudicators use the information from VIBE to verify the petitioner’s qualifications. For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status. Information from VIBE will help confirm petitioners’ financial viability in cases where petitioners must establish ability to pay.

Generally, USCIS will issue an RFE or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of VIBE-supplied information that are material to the benefit requested, and an immigration services officer (ISO) will make a final decision based on the totality of the circumstances.

Updating VIBE is easy. If you are a US-based company employing foreign nationals, then create, verify and correct the Company’s D &B’s information via D&B’s iUpdate. This link is minus the direct marketing appeals from D & B. This also a fee free service. This link is only for US companies that are government contractors. For other US-based publicly traded companies, government entities and foreign companies wishing to create, update or view their report with D&B may use www.dnb.com; however, they may be subjected to direct marketing from D&B.

Immigrant Classifications Included in VIBE are:
• E12, outstanding professor or researcher
• E13, multinational executive or manager
• E21, member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
• E31, skilled worker
• E32, professional
• EW3, unskilled/other worker

Additionally, the following I-360 (Petition for Amerasian, Widow(er) or Special Immigrant) employment-based immigrant classifications are included in VIBE:
• SD1, minister of religion
• SR1, non-minister in a religious occupation or vocation
• Nonimmigrant Classifications Included in VIBE

The following I-129 NIV employment-based classifications are also included in VIBE:
• E-1, treaty trader
• E-2, treaty investor
• E-3, member of specialty occupation who is a national of the Commonwealth of Australia
• H-1B, specialty occupation worker
• H-1B1, specialty occupation worker from Chile or Singapore
• H-1B2, worker performing services related to a Department of Defense cooperative research and development project or coproduction project
• H-1B3, fashion model of distinguished merit and ability
• H-2A, temporary or seasonal agricultural worker
• H-2B, temporary nonagricultural worker
• H-3, trainee or special education exchange visitor
• L-1A, intracompany transferee in a managerial or executive position
• L-1B, intracompany transferee in a position utilizing specialized knowledge
• LZ, blanket L petition
• Q-1, international cultural exchange visitor
• R-1, religious worker
• TN, NAFTA professional from Canada or Mexico

Classifications Not Included in VIBE are:
• CW-1, Commonwealth of the Northern Mariana Islands (CNMI)-only transitional worker
• E-2C, long-term foreign investors in the CNMI
• E11, individuals of extraordinary ability
• E21, national interest waiver
• EB-5, immigrant investor
• O, individuals with extraordinary ability or achievement (including essential support personnel)
• P, internationally recognized athletes and entertainment groups, performers under a reciprocal exchange program, and artists or entertainers under a culturally unique program (including essential support personnel)

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Part X: Managing I-9 in Mergers and Acquisitions

This is Part X of our I-9 blog series, which explains how employers can avoid audit by ICE.

Mergers and acquisitions (M&A) refers to handling and negotiating the buying, selling, dividing and combining of different companies that allows for the parent company to grow in its original division or new area, without a subsidiary company or supplemental assistance.

The risk for Forms I-9 audits is real and high: I-9 audits by ICE have soared since 2009, with more than 6,000 audits on US employers and $76 million in fines. This is also part of the Obama Administration initiative to step up enforcement against employers hiring unauthorized workers. As a result, the Department of Justice has increased its efforts in criminal investigations.

But what does this have to do with M&A? In M&A, the Buyer should certainly take care because the Buyer often acquires all of the Seller’s responsibilities, including I-9 non-compliances, if there are any.

What should the Buyer do before the merger? There are a few steps that should be taken:

1. Evaluate the Seller’s Forms I-9

Gain a full understanding of how the Seller completed and housed Forms I-9. Also determine if the Seller maintained Forms I-9 using an electronic I-9 software solution or kept paper copies, and if the Seller was in compliance with ICE rules and regulations.

2. Perform Soft Audits of Forms I-9

If the Seller uses an electronic I-9 software solution, then the Buyer should perform a full audit report in order to lighten the cost and time of organizing a soft audit. Also utilize an immigration attorney who is experienced in I-9 compliance and can help the Buyer compute future monetary fines or penalties, if there are any. Immigration attorneys can also aid in developing post-deal tactics.

3. Access Samples of Forms I-9

Another option to a soft audit is to administer a partial audit, which looks at an archetypal sample of the Seller’s Forms I-9 found on divisions, departments, regions or category that correctly represents the Seller’s organizational structure.

4. Assign Monetary Figures to I-9 Form Errors

I-9 audit experts can assist in assigning monetary costs to any errors the Seller has made. This will help determine what costs the Buyer will incur if the deal were to transpire.

5. Understand the Seller’s Compliance Culture

If an ICE audit occurs, the efforts of the Buyer to demonstrate I-9 compliance will not go in vain. In order to understand the Seller’s compliance culture, the Buyer should gain a full comprehension of the Seller’s I-9 compliance policies, and systems of training and internal enforcement.

If there is no compliance culture or system of self- or internal audit of Forms I-9, then apply the Seller’s rules to the Buyer’s forms and perform the soft audit.

What the Buyer should do post-deal if the Seller is incapable or reluctant to allow access to Forms I-9:

1. Transition I-9 Forms

The Buyer must determine whether to require the Seller’s employees to complete new I-9 forms or to preserve existing forms. Sometimes the sheer volume of Forms I-9 can be daunting. Often a good solution is to use an electronic I-9 software solution to aid in shifting I-9 form data.

2. Adopt a Compliance Culture

Establish a company-wide policy and guarantee compliance–this is a great way to reduce I-9 audit risk and noncompliance, and to facilitate a M&A.

Next Week : Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part IX: Best Practices

This is Part IX of our I-9 blog series, which explains how employers can avoid audit by ICE. In order for employers to reduce the chances of an I-9 audit, employers should know best practices and how to protect themselves.

Best employment practices:
1. Develop a plan to self-audit.

2. Communicate to workers that an Notice of Inspection (NOI) has been issued.

3. Establish a process for connecting with employees during the audit. Communicate:
• With employees that the employer is subject to an ICE audit, or
• That the employer has received a notice.

4. Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE.

5. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I‐9 documents to present.

6. If the employer’s workers are represented by a union, inform the union of ICE’s audit and determine whether a collective bargaining agreement triggers any employer obligations.

7. Inform employees from whom the employer seeks specific information, that the employer is seeking this information in response to an ICE audit.
• Communicate in writing with employees from whom the employer is seeking more information in response to the ICE audit.
• Describe the specific basis for the discrepancy in the employee’s record.
• Detail what information the employer needs from the employee.

8. Follow the instructions on the ICE notice and the instructions for the Form I‐9 when seeking to correct Form I‐9 defects, including the Lists of Acceptable Documents and the anti‐discrimination notice.

9. Employers should consider compliance planning before they receive a notice from ICE. Regardless of the size of a company, receipt of a NOI should be taken seriously, particularly if the employer has been targeted before.

10. Receipt of a notice should trigger a consultation with an immigration attorney for guidance through the ICE inspection process.

11. Steps to take immediately:
• Notify the management and executive teams of the audit.
• Notify or retain experienced immigration counsel.
• Gather I-9s and supporting documentation.
• Employers should immediately engage experienced immigration counsel to evaluate current processes and procedures and address all of the grey areas in the law and to correct and remedy issues raised by a self-audit.
• Develop policies, documentation, and training to ensure that all the employees are aware of the gravity of collecting, maintaining and auditing I-9 forms.

12. If the employer has many worksites and a large workforce, the employer should consider an electronic system that will alleviate many I-9 concerns by preventing mistakes, standardizing practices/procedures, and guiding employers on the proper procedure for requesting I-9 documentation.

Worst practices:
1. Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status established in the receipt of an ICE NOI.

The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a ‘knowingly’ and intentionally discriminatory policy toward non-citizens.

2. Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I‐9 documents.

John Jay College was found guilty of discriminatory treatment of certain individuals in the employment eligibility verification process. Between 2004-2008, an employee was asked to produce her Employment Authorization Document (EAD) and green card for employment eligibility re-verification. However, on January 30, 2008, she was told her EAD had expired. On the same day, John Jay College refused to accept her Social Security card and driver’s license to reverify her employment eligibility. Again on January 30, the college requested that the employee provide an unexpired EAD or green card. The employee was fired on January 30 without the reasonable opportunity to produce documents that would validate her authorization to work.

3. Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring the employer to obtain.

The company Life Generations Healthcare, LLC committed discriminatory conduct against its non-US citizen employees. Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9. Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).

4. Limit the range of documents that employees are allowed to present for purposes of the Form I‐9.

In a case against the Maricopa Community Colleges, it was found that the colleges were in violation of document abuse and found guilty of a practice of discrimination in the hiring process. The colleges required new non-US hires to complete an internal non-US citizen employee tax data form, or “the Form”. The Form required new non-US hires to produce certain documents in order to verify employment eligibility. The colleges required only non-US citizen applicants to comply with the specific documentation of the Form.

5. Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the US.

The company Home Care Giver Services, Inc. was found guilty of the anti-discrimination with regard to discrimination against an employee based on her national origin and accent. The employee was subjected to verbal harassment, including insults about her accent and Hispanic culture. Home Care Giver Services knowingly and intentionally committed national origin discrimination against the employee when it terminated her based on her national origin. Respondent’s actions constitute an unfair immigration-related employment practice in violation of 8 U.S.C. § 1324b(a)(1)(A).

6. Set different employment eligibility verification standards or require that employees, because of their national origin and citizenship status, present different documents.

The University of California, San Diego Medical Center< case is an example of this practice. Non-US citizens were unnecessarily asked for specific List A documents. 7. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents. The Maricopa Community Colleges case is an example of this practice. Non-US citizens were allowed to only present certain documents that the colleges chose. 8. Request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen. The company Mar-Jac Poultry, Inc. was found in violation of the anti-discrimination provisions of the INA with regard to its systematic pattern and practice of treating non-U.S. citizens differently than U.S. citizens in the employment eligibility verification process. Specifically, Mar-Jac Poultry required non-citizen applicants to show immigration documents issued by the U.S. government before considering them for employment. Mar-Jac Poultry was in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(6) and document abuse in violation of 8 U.S.C. § 1324(a)(6).

9. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.

The Life Generations Healthcare, LLC case is an example of this practice. The company refused to accept an employee’s EAD because it had a future expiration date.

10. Request that, during re-verification, an employee present a new unexpired EAD if he or she presented one during initial verification. For re-verification, each employee must be free to choose to present any document either from List A or from List C.

The John Jay College case is an example of this practice. John Jay College asked an employee to produce both an EAD and green card for re-verification.

11. Limit jobs to U.S. citizens, unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract. On an individual basis, the employer may legally prefer a U.S. citizen or non-citizen national over an equally qualified alien to fill a specific position, but the employer may not adopt a blanket policy of always preferring citizens over non-citizens.

Next Week : 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

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Employers must not insist on ‘green cards’!

Documentary abuse and discrimination against work-authorized workers continues.

The Justice Department (USDOJ) announced today that it reached an agreement with Ross Stores Inc., resolving allegations that the company had engaged in a pattern or practice of discrimination based on citizenship status while verifying employment eligibility at its store in San Ysidro, CA. The allegation was that Ross Stores discriminated against a work-authorized individual when it refused to honor a genuine work authorization document and requested that she produce a green card, despite the fact that the company did not require US citizens to show specific work authorization documents.

The department’s investigation began in response to a charge of discrimination filed by a work-authorized, non-US citizen, who was not permitted to work at the San Ysidro store after showing a valid Employment Authorization Document (EAD) for the Form I-9. The worker complained that Ross Stores refused to allow her to work after presenting her EAD, and that Ross requested more or different documents for the Form I-9 and eventually withdrew her job offer. The worker had already produced sufficient documentation establishing her work authorization.

USDOJ alleged that Ross Stores subjected newly hired non-US citizens to excessive demands for documents, in order to verify their employment eligibility, but did not require the same of US citizens.

The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status.

Employers must not treat authorized workers differently during the employment eligibility verification process based on their citizenship status or national origin.

Under the settlement agreement, Ross Stores agrees to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and to be subject to reporting and compliance monitory requirements for 18 months.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Part VIII: How can employers protect themselves from discrimination?

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has 10 recommended steps that helps employers avoid discrimination in the work place.

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Examine and accept original documents that appear genuine and relate to the employee.

3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine.

4. As long as the job applicants are authorized to work in the US, avoid requiring job applicants to have a particular citizenship status unless mandated by law or federal contract.

5. Give out the same job information to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later.

8. On Form I-9, verify that you have seen documents establishing identity and work authorization for all your new employees hired after November 6, 1986.

9. If re-verification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present. For re-verification, employees need only present either a List A document or a List C document.

10. Be aware that US citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a US citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are US citizens or nationals. Also, an immigrant may become a US citizen by completing the naturalization process.

Yet in 2011, we had nine cases of document abuse and seven cases of improper inquiry about citizenship status.

The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. If a potential employee wrote that he or she was a noncitizen in Section 1 of Form I-9, UCSD Medical Center required them to issue particular List A documents to establish employment authorization. UCSD Medical Center continued the same documentary abuse, asking for specific List A documents, even at the re-verification stage. The employer entered expiry dates of all List A documents and then proceeded to re-verify List A documents that did not need to be re-verified.

The complaints started when a lawful permanent resident employee complained that UCSD Medical Center required her to present an unexpired “green card”, or she would be fired. An inquiry from OSC to UCSD Medical Center confirmed the complaint. From January 2004 to June 2011, UCSD Medical Center required noncitizen new hires to present specific List A documents. UCSD Medical Center misunderstood ‘green card’ for a visa or work permit, and thought this ‘green card’ required re-verification at expiration date. The employer also rejected combinations of List B and C documents if presented by noncitizen new hires; however, if a US citizen new hire presented those very same documents, the employer accepted those documents.

USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a “knowingly” and intentionally discriminatory policy toward non-citizens.

In another case, the company Life Generations Healthcare, LLC committed similar discriminatory conduct against its non-US citizen employees: Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9; the company did not ask the same of native-born US citizens.

The complainant in the case was a work-authorized asylum applicant. When applying for a job, the company’s HR department asked the applicant to present a “green card”. The applicant explained that she did not have a Permanent Resident Card but was authorized to work. The second time the applicant applied for the job, she was asked to present her work authorization papers, or Employment Authorization Document (EAD). With her EAD, she was authorized to work as an asylum applicant. Even though the applicant was qualified for the job, she was told that she would not be employed because her EAD carried a future expiration date.

Between January 1, 2008 and April 12, 2010, the company required all newly hired non-US citizens to produce a List A document during the Form 1-9 Employment Eligibility Verification process because of their citizenship status and/or national origin. During the time the complainant was authorized to work, June 23, 2009-June 22, 2010, Life Generations Healthcare hired five new individuals: one US citizen and four lawful permanent residents. The lawful permanent residents presented a permanent resident card to show work authorization.

Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).

Citizenship status discrimination refers to employers treating potential employees differently because they may or may not be US citizens, or may or may not be authorized to work in the US. US citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. But there is an exception to the citizenship status discrimination: those permanent residents who do not apply for naturalization within six months of being eligible to apply are not protected from citizenship status discrimination.

Employers seem to be fixated on green cards. From the cases above, the employer’s HR employee asked for a green card during the I-9 employment verification process. In particular, HR was fixated on asking for green cards from non-US citizens even though these employees had produced valid and acceptable documents; HR consistently asked for more documents than required, and refused to accept valid and acceptable documents. This constitutes document abuse.

The result has been that OSC has settled with employers for very costly monetary fines, civil penalties and remediation. In addition, employers have to enter into agreements to undergo training, reporting and monitoring between 18 months to three years. This is an unnecessary expense for the employer. Fines have ranged from $10,000-$115,000.

What is the solution? First, employers should make sure HR personnel understand the laws, especially which documents are required in order to establish identity and work authorization. Second, seek help from an immigration lawyer. Last, use the newest updates and technology to ensure that no mistakes are made.

Next Week: 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

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Waivers of Inadmissibility to be Processed in the US

On March 30, 2012, USCIS proposed to change the way it processes I-601, waivers of inadmissibility; instead of the beneficiary leaving the United States to process abroad and face possible denial, thereby preventing the unification of the family; USCIS now proposes to adjudicate this waiver Stateside!

U.S. Citizenship and Immigration Services (USCIS) today posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

“The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months of separation from family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation.”

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced today before publishing the final rule in the coming months. Individuals at this time should not submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

USCIS encourages the public to submit formal input on the proposed rule through www.regulations.gov during a comment period that runs from April 2, 2012 until June 1, 2012.

A detailed Web page addressing the proposed rule is currently posted to http://www.uscis.gov/provisionalwaiver.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Copyright 2012.  All rights reserved.

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Part VII: Penalties

This is Part VII of a blog series for employers to avoid audit by ICE. After the employer receives a notice from ICE, which details whether the employer has been found in violation, then ICE will determine the employer‘s penalties.

The following are the most common notices:

Notice of Inspection Results
Notice of Suspect Documents
Notice of Discrepancies
Notice of Technical or Procedural Failures
Warning Notice
Notice of Intent to Fine
Final Order
Notice of Hearing
Determination of Recommended Fine

Find that each type of notice is hyperlinked and explained in further detail.

There are three different types of violations that an employer could be found guilty of: civil fines and criminal penalties for violation for Form I-9 laws; ‘knowing hire’ and ‘continuing to employ’ violations; and substantive and uncorrected technical violations.

Employers who have ‘knowingly hire’ or ‘continuing to employ’ violations will be forced to stop unlawful activity and may be fined. ICE will divide the number of both violations by the number of employees with misfiled Forms I-9, and obtain a violation percentage.

In the case of technical violations, ICE will do the same in order to obtain a violation percentage.

The violation percentage gives a base fine amount depending on whether this is a First Tier (first time violator), Second Tier (second time violator), or Third Tier (third time violator) case.

In our very own city, St. Louis, J&J Industrial Supply, Inc. was found at fault for employing illegal workers after an inspection by ICE‘s Homeland Security Investigations (HSI). The company pled guilty to knowingly hiring multiple illegal immigrants, and was charged with a $150,000 penalty, a year of probation, and forfeiting a company car. The monetary fine was equal to the profit J&J made during the 12-month period that illegal immigrants were on the company payroll.

J&J Industrial Supply was initially caught because a driver of the (forfeited) company car was caught speeding. The car was pulled over by the police and found that an illegal alien employee was driving. ICE was immediately called. Under Missouri Statute 577.675.1, it is “unlawful for any person to knowingly transport, move, or attempt to transport in the state of Missouri any illegal alien who is not lawfully present in the United States…for purposes of employment.” Doing so will result in prison time, a monetary fine, or both.

In another midwest town, Springfield, IL, five employees from La Fiesta Mexican Restaurant were criminally charged. Three were charged with abuse of fraudulent employment eligibility records; the other two were charged with illegally reentering the US after having been previously deported. If found guilty, the penalty for misusing false documents is up to five years in prison; the penalty for reentering the US after deportation is 20 years in prison and a $250,000 fine. Not only will the unauthorized workers be charged, but the owners can also be charged in civil and criminal indictments, and are also liable to fines.

In San Diego, California, The French Gourmet, Inc. was sentenced for charges of knowingly hiring illegal workers after a four year inspection by ICE‘s HSI. The company was ordered to forfeit $109,200 in profits made during the year in which illegal workers were employed, and ordered to pay $277,375 for its employment of illegal aliens. The company’s owner was also sentenced to five years of probation based on these ‘knowingly hiring’ violations.

Click on the different types of violations, which are hyperlinked, to find charts of employment percentages and fines.

Next Week : 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

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Part VI: Step Three in the ICE Audit Process

We took a little break from detailing the US Immigration and Customs Enforcement (ICE) audit process for you, but now we’re back with the step three of ICE’s inspection.

Our entries on Form I-9 are guidelines that employers should follow in order to avoid audit by ICE. After an ICE officer visits the employer‘s worksite and examines Forms I-9, then the officer determines whether the employer adheres to rules and regulations or is in violation.

Step Three: Penalties

The employer may be given a monetary fine for technical violations. When determining the penalty amount, ICE considers five factors: the size of the business; good faith effort to comply with I-9 regulations; the seriousness of the violation by the employer; whether the violation(s) by the employer involved hiring unauthorized workers; and the employer‘s history of previous immigration and I-9 violations.

An employer who ‘knowingly’ hired, or continued to employ unauthorized workers, will be required to stop hiring unauthorized workers. The employer may be fined and in certain situations may be prosecuted criminally. This action by ICE may also involve criminal prosecution of the company’s officers. The employer may also face debarment by ICE, meaning that the employer can not participate in future federal contracts, or receive other government benefits.

Monetary fines for ‘knowingly’ hiring and ‘continuing to employ violations’ range from $375 to $16,000 per violation, with repeat offenders receiving higher fines. Fines for substantive violations, which includes failing to produce Form I-9, range from $110 to $1,100 per violation.

Employers who violate the law may be subject to:
• civil fines
• criminal penalties (when there is a pattern of violations)
• debarment from government contracts
• a court order requiring the payment by the employer to an individual employee discriminated against
• a court order requiring the employer to hire the individual employee discriminated against

An example of how an employer should not proceed is made by two companies in Houston. Atrium Companies and Advanced Containment Systems Inc. (ACSI) were found by ICE of knowingly hiring illegal immigrants to work in their facilities. Both companies were made to forfeit $2 million to Department of Homeland Security. However, the US government has agreed to not criminally prosecute the companies; instead, forcing the companies to rectify previous immigration violations, pay a hefty penalty and remain cooperative with the criminal investigation.

Atrium Companies and ACSI were sent multiple notices by the Social Security Administration (SSA), signifying that the companies’ employee names and Social Security numbers did not match SSA records. Both companies did not address this question of immigration, and continued to employ illegal immigrants from 2005-2009.

In 2011, both companies received separate audits by ICE. These audits showed that nearly half of both companies’ workforces consisted of illegal immigrants, and that the companies were knowingly hiring illegal immigrants. Since the audit’s began, all illegal immigrant employees were terminated.

Read the full details of the case here.

In the next section of Part VI, Section D, we will be discussing the last step in ICE’s auditing 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

Tara Mahadevan

Copyright 2012.  All rights reserved.

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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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