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

The U.S. District Court for the Western District of New York has determined that the Fair Labor Standards Act requires employers to reimburse foreign H-2B visa workers for certain expenses paid by the workers if, after subtracting the costs from the workers’ wages, the workers’ effective net salary would fall below minimum wage. To learn more about the decision and its implications for employers, please continue reading at Littler's Wage and Hour Counsel blog.

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United States Citizenship and Immigration Services (USCIS) announced that it has begun issuing employment and travel authorization on a single card for certain applicants filing a Form I-485, Application to Register Permanent Residence or Adjust Status. This new card replaces the paper Advance Parole documents formerly issued to such applicants and offers increased security and durability. The card serves to verify a cardholder’s legal work status in the United States; specifically, employers may use the card as a List A document when completing a Form I-9. Additionally, cardholders can travel abroad and return to the United States without abandoning their pending adjustment application. Cardholders must present the card to request parole through the U.S. port of entry, at which point immigration officials will determine whether to grant parole (i.e., individuals who were unlawfully present in the United States may be denied re-admission).

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The European Parliament has announced two visa waiver agreements with Brazil, one concerning ordinary passport holders and the other for diplomatic, official and service passport holders. Under the agreements, all EU citizens, including nationals of Estonia, Latvia, Malta and Cyprus (who previously had needed visas to enter Brazil), can travel visa-free to Brazil for tourism and business stays of up to three months.

The new agreements do not apply to:

• students, researchers, artists, and members of religious orders, whose travel is governed by existing treaties between individual EU Member States and Brazil; or
• individuals seeking paid work. The agreements do not prevent EU Member States and Brazil from imposing visa requirements in accordance with (1) applicable EU or national law or (2) bilateral agreements that cover individuals seeking paid work.

Photo credit: Tobia Wolter

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As discussed here previously, legislators in many states have been introducing legislation mimicking Arizona’s controversial immigration legislation, SB 1070. In the past week, such legislation has progressed, albeit slightly, in South Carolina, but has been taken off the table in Colorado.

In South Carolina, The Sun News reported that S. 20, an Arizona-style immigration bill introduced by Senator Lawrence Grooms, was moving forward. However, after clearing the State Senate Judiciary Committee, the bill failed to garner sufficient votes to set it for Special Order, i.e., moving the bill to the top of the calendar. Accordingly, it is presently unknown when the bill will be voted on by the entire State Senate.

In Colorado, the sponsor of House Bill 1107, Rep. Randy Baumgardner, abandoned his attempt to institute an Arizona-like law, believing that legal challenges would burden taxpayers, reports Fox News Latino. On February 14, the House Committee on Agriculture, Livestock, & Natural Resources indefinitely postponed the bill. As we previously noted, a group of Republican Colorado lawmakers recently traveled to Arizona to learn more about its approach to immigration legislation.

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On February 14, Senator Orrin Hatch (R-UT) re-introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S. 332). Senator Hatch first introduced this bill on September 29, 2010, but it died in committee. The current bill has been referred to the Senate Judiciary Committee. As outlined in our report of the bill’s initial introduction, Senator Hatch’s bill includes a long list of immigration enforcement provisions, such as requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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On February 10, the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement held a hearing, “E-Verify – Preserving Jobs for American Workers,” in which it considered whether to make E-Verify mandatory for all employers. House Judiciary Committee Chairman Lamar Smith (R–TX ) favors the idea, as does the Subcommittee’s Chairman, Representative Elton Gallegly (R–CA). In introducing his reasons for supporting the expansion of E-Verify electronic employment verification program, Representative Smith stated: “With unemployment over 9% now for 21 months, jobs are scarce and families are worried. According to the Pew Hispanic Center, seven million people are working in the U.S. illegally. These jobs should go to legal workers.”

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The Department of Homeland Security (DHS) has announced that, on March 18, 2011, it will launch the E-Verify Self Check Program, a secure web portal that allows an individual to verify his or her work authorization status. Previously, only employers could conduct E-Verify checks, and, in the event of a possible mismatch, the prospective employee needed to resolve the matter, thereby delaying his or her possible hire and/or start date. The Self Check Program will allow individuals to correct any identity information errors that the E-Verify system might contain, thereby “provid[ing] a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

The Self Check program is a two-stage process: Stage 1 requires users to verify their identities; Stage 2 examines whether the individual is legally authorized to work in the United States.
 

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In a July 2010 proposal, the European Commission proposed a directive that would create a uniform standard for all 27 member states concerning international intra-corporate transfers (ICTs) of highly skilled employees. The proposal permits managers and specialists to remain in a member state for up to three years (trainees for up to one year), and to bring their family along. Many businesses, currently confronted with different applicable standards among member states, support the proposal, which many believe would increase competitiveness by allowing companies to bring their best and brightest overseas—albeit temporarily—to develop, strengthen and expand EU operations. Moreover, because ICT costs, including relocation, transportation and insurance, can be burdensome, uniform rules permitting longer stays would potentially offset front-end expenditures.

Support, however, is lacking among union representatives, according to EurActiv.com. One trade union official expressed concern that ICTs will permit companies to “flood labor markets with cheap labor that undermine local conditions.”

European Parliament and member states are expected to discuss the proposed ICT directive during the first half of 2011.

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According to euobserver.com, a proposal in the European Union (EU), if adopted, would require the collection of Passenger Name Record (PNR) data of travelers flying internationally into or out of the EU. The proposal does not apply to travelers flying between EU member states.

PNR data include an individual’s home address, mobile phone number, credit card information and email address. The data are collected in the departure country, then forwarded to the arrival country for security screening purposes. Such a procedure exists in the United States: airlines flying into and over the United States must provide authorities with all passengers’ PNR data.

Support among EU member states is mixed. The proposal’s supporters point to reports that data collection resulted in 1,800 individuals being denied entry to the United States in 2008 based on data revealing links to terrorist cells or organized crime. Opponents express concerns about infringements upon civil liberties and contend that the burden on governments to maintain another huge information database (and on businesses to collect and supply this information) is onerous.
 

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USCIS has announced that it is beta testing a web-based tool – Validation Instrument for Business Enterprises (VIBE) – designed to enhance the agency’s adjudications of certain employment-based immigration petitions by using commercially available data to validate basic information about companies or organizations petitioning to employ a foreign worker.

VIBE will relieve some burdens associated with USCIS’s paper-intensive petition review process by allowing its service centers to electronically receive information about a petitioning entity (e.g., current physical address, ownership, and legal status) from an independent information provider (IIP).

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On January 27, the Mississippi House of Representatives approved an immigration enforcement bill providing for fines of up to $25,000 per day against employers that hire unauthorized workers. As reported by the Clarion Ledger, the House amendments to Senate Bill 2179 are a significant departure from the original provisions, paving the way for a contentious reconciliation process. Before the bill can become law, it needs to be approved by the Senate, then signed by the Governor.

Originally, S.B. 2179 provided that a Mississippi resident could sue public officials or agencies that adopt or implement policies limiting or restricting the enforcement of federal immigration laws. Courts could impose civil penalties of between $500 to $5,000 for each day the policy remained in effect after a suit was filed.

The House amendments not only bring in employers as the enforcement target, but also dramatically increase the penalties. The amendments provide that a person may sue an employer “to challenge the hiring practices of the employer as being in violation of . . . the enforcement of state or federal immigration laws.” Moreover, courts could impose penalties of between $5,000 and $25,000 for each day the employer committed a violation. 

Photo credit: MBPhoto, Inc.

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Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace, including proposals relating to immigration. Representative Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt from visa quotas foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the United States. Senator Harry Reid (D-NV) introduced the Reform America's Broken Immigration System Act (S. 6), which calls for no specific reforms, but rather declares certain immigration-related goals. To learn more about the bills and their potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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United States Citizenship and Immigration Services (USCIS) has announced that the cap for H-1B petitions (65,000) has been met for FY 2011. Accordingly, USCIS will not consider petitions received after January 26, 2011. However, the agency will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

As previously noted, the 20,000 petition cap for H-1B Master’s Exemption visas was reached on January 7.

USCIS will continue to receive and process petitions that are otherwise exempt from the caps.

April 1, 2011 is the first day that petitions may be received for FY 2012 with an October 1, 2011 start date.

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