Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

On July 28, 2010, the U.S. District Court for the District of Arizona issued a highly anticipated order in United States v. State of Arizona, a recent federal lawsuit challenging the constitutionality of the Arizona “Support of Law Enforcement and Safe Neighborhoods Act” (“SB 1070”). The order temporarily enjoins enforcement of certain provisions of SB 1070 pending the court’s final ruling in the matter. To learn more, please continue reading Littler's ASAP, What Arizona's Controversial Immigration Law Means for Employers, by Neil M. Alexander and Michael J. Lehet.

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Since October 2009, U.S. Immigration and Customs Enforcement (ICE) has levied over $600,000 in fines against Texas businesses for immigration-related violations ranging from incomplete I-9 records to employment of illegal immigrants, reports the Houston Chronicle. The largest fine ($360,000) imposed on a single business stemmed from an investigation commenced by the Bush administration in 2008. The newspaper’s review of federal records revealed a focus on fining employers rather than arresting undocumented workers, reflecting the Obama administration’s new immigration enforcement strategy that focuses on employer culpability through audits.

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Employers using E-Verify to authenticate employees’ work authorization status are subject to the Three-Day Rule, which requires an employer to create an E-Verify case no later than three business days after an employee first works for pay (commonly referred to as the Hire Date). Confusion sometimes arises, however, because the Hire Date differs depending on whether the E-Verify case is created before or after the first day an employee works for pay. To clarify the matter, United States Citizenship and Immigration Services (USCIS) created a webpage explaining how to determine the Hire Date, and how to calculate the compliance deadline.

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As of July 19, 2010, rules for the United Kingdom’s Points Based System have changed (pdf), permitting the Secretary of State to limit the number of Certificates of Sponsorship (CoS) assigned to sponsors, and to limit the number of CoS assigned to specific sponsors in any one period. The UK Border Agency (UKBA) released updated guidance on Tier 2 (General) sponsorship (pdf), which outlines the changes. UKBA will send each sponsor a letter detailing their individual CoS allocation for the interim period, which runs from July 19, 2010, to March 31, 2011.

Some sponsors will be given a “zero allocation” for the period, limiting their sponsorship to existing employed migrants, and preventing sponsorship of new employees unless the sponsor applies for “exceptional consideration,” which might result in additional CoS being issued. Moreover, sponsors that are downgraded to a B-rating will automatically have their allocation set to zero “until they demonstrate their commitment to make improvements by signing up to (and paying fees associated with) a sponsorship action plan.” 

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The State Department has released the August 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals changed from October 1, 2005, and November 22, 2005, respectively, to March 1, 2006. As previously discussed, considerable movement concerning the oversubscription date for Indian nationals was reported in the July 2010 Visa Bulletin.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic moved from August 15, 2003, to June 1, 2004. For Indian nationals, the date edged forward slightly from November 22, 2001, to January 1, 2002.
• EB-3 (other workers): The previous oversubscription date of June 1, 2001 progressed to January 1, 2002 for Indian nationals, and to May 15, 2002 for nationals of China, Mexico, and the Philippines.

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According to the Salt Lake Tribune, since the July 1, 2010, effective date of a Utah law requiring businesses with 15 or more employees to verify new hires’ work status through E-Verify, less than one-third have done so. The figure did not surprise Utah Governor Gary Herbert, who stated that even the law’s sponsor did not expect universal compliance. Some suggest that employers either do not know about the new requirement to use the federal electronic employment verification system, or are not hiring due to poor economic conditions, which could explain the low enrollment numbers.

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Audits, not raids, are the centerpiece of the Obama administration’s immigration enforcement strategy, reports the New York Times. In the past year, Immigration and Customs Enforcement (ICE) audited over 2,900 business to determine whether illegal immigrants were employed, and, in 2010, it imposed $3 million in civil fines. While audits are less visually dramatic than raids, the effects on workers and businesses are not.

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The U.S. State Department announced that the U.S. Embassy in Beijing, and four other consular offices in other Chinese cities, will be open on Saturdays to accommodate Chinese nationals seeking to visit the United States. The extended hours are intended to decrease the wait time for visa appointments. Last year, 487,000 visas were issued to Chinese nationals, two-thirds of which were for business and tourism. For 2010, to date, the number of visa applications received is 28% higher than at this time last year.

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The UK Border Agency announced that, beginning July 19, 2010, it will limit how many applications submitted under Tier 1 (General) of the points-based system will be considered per month. A long-term limit will be imposed in April 2011. Additionally, the score necessary for approval of a Tier 1 (General) work permit will increase from 95 to 100 points.

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The UK Border Agency announced that on July 19, 2010, it will introduce an interim limit on the number of sponsorship certificates employers can issue to migrant workers. An annual limit will be introduced in April 2011.

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The Department of Homeland Security (DHS) will be implementing additional requirements for employers who register for the E-Verify electronic employment verification system, in order to provide additional protection for employees’ personal information. Previously, registering employers provided E-Verify with their business name, business address, mailing address, phone number and other information, which was then compared to information already in E-Verify’s system in order to prevent duplicate registrations. Now, according to the DHS’s June 2010 Privacy Impact Assessment Update (pdf), employers wishing to register for E-Verify will be required to provide the following additional information:

• the employer’s “doing business as” (DBA) name (if applicable);
• the employer’s DUNS number (the Dun and Bradstreet identifier) (if applicable);
• the name of the employer’s administrator; and
• the name of the employer’s parent organization (if applicable).

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