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

By Kelly Reese

On September 28, 2011, the District Court for the Northern District of Alabama (Judge Sharon Blackburn) issued a ruling (pdf) on a motion for preliminary injunction in the lawsuit filed by the U.S. Department of Justice against the State of Alabama challenging its recently enacted immigration law, House Bill 56 (HB 56).

The court has granted a preliminary injunction enjoining the enforcement of two provisions of HB 56 which are of direct concern for employers. The first is Section 16, which prohibits employers from deducting as business expenses wages or compensation paid to an unauthorized alien and imposes a penalty of 10 times the claimed deduction. The second is Section 17, which creates a new cause of action making it a discriminatory practice for employers to knowingly fail to hire a job applicant or discharge an employee who is either a U.S. citizen or authorized alien while retaining or hiring an individual the employer knows, or reasonably should know, is an unauthorized alien. Employers violating this provision can be subject to a civil suit, and the prevailing party may recover compensatory damages and reasonable attorneys’ fees.

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Under the H-1B visa program, an employer may employ foreign workers in occupations requiring theoretical or technical expertise in a specialized field. An H-1B visa holder is issued a Social Security number (SSN) but is only authorized to work for his or her sponsoring employer.

In response to a recent Department of Homeland Security (DHS) study and criminal investigations launched by the Department of Justice (DOJ) concerning visa fraud, the Social Security Administration’s Office of the Inspector General (OIG) set out to assess whether H-1B workers were properly using their SSNs. In its September 2011 Audit Report, H-1B Workers' Use of Social Security Numbers, the OIG estimated that 18% of H-1B workers assigned a SSN in 2007 may have used their SSN to work for a non-approved employer: specifically, 11% posted wages from an employer other than their approved employer, and 7% posted no wages from fiscal years 2007 to 2009.

Based on its findings, the OIG recommended that the Social Security Administration work more closely with DHS and establish a data match agreement to help DHS identify and reduce improper SSN usage by H-1B visa holders.

Photo credit: Aggressive Entertainment

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HireRight, an international employment screening provider, recently released its 2011 Employment Screening Benchmarking Report (available here). The report, in part, examines employer use of E-Verify, the federal electronic employee verification system. Of the 1,800 human resources, talent management, recruiting, security, safety and compliance professionals surveyed, 51% indicated that they use E-Verify, as compared to 28% in the 2010 report.

Other findings in the 2011 report include:

• 11% of those surveyed reported that although they are not currently using E-Verify, they plan to use it in the future.
• 60% of respondents store Form I-9s exclusively in paper form, 12% digitally store, and 27% use a combination of both. According to HireRight, employers using a paper-based I-9 process are more likely to experience errors, thereby increasing the risk of noncompliance.
• 69% of respondents reported feeling completely or very prepared for a U.S. Immigration and Customs Enforcement (ICE) Notice of Inspection or audit.

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As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.

On September 21, 2011, the House Judiciary Committee approved the bill, which was sponsored by Judiciary Chairman Lamar Smith (R-TX). Rep. Smith had previously called on President Obama to include a similar provision in the American Jobs Act.

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U.S. Citizenship and Immigration Services (USCIS) has published a final rule establishing a Transitional Worker (CW) classification for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification will allow CNMI employers to hire nonimmigrant workers who are otherwise ineligible to work. In Fiscal Year 2012 (October 1, 2011 to September 30, 2012), 22,416 CW visas will be available, and the number of available visas will decrease each year. The visa will not permit the holder to travel or work in any other part of the United States, except for nationals of the Philippines who may, via the Guam airport, travel between the CNMI and the Philippines.

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The U.S. Department of State has released the October 2011 Visa Bulletin, which summarizes visa availability. As compared to the September 2011 Visa Bulletin, minimal 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 progressed three months, from April 15 to July 25, 2007.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of Mexico and the Philippines advanced 16 days, from November 22 to December 8, 2005. A 24-day advance occurred for nationals of China, from July 15 to August 8, 2004. Indian nationals experienced a one-week advance, from July 8 to July 15, 2002.
• EB-3 (other workers): There were no changes concerning Chinese nationals (April 22, 2003); Indian nationals’ oversubscription date advanced one week, from June 1 to June 8, 2002; the oversubscription date for nationals of Mexico and the Philippines advanced several weeks, from August 1 to September 15, 2005. 

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The Migration Advisory Committee (MAC) has recommended to Parliament that the shortage occupation list under Tier 2 of the United Kingdom’s point-based immigration system be reduced to cover 190,000 employees (not migrants) – by comparison, in 2007 the number was 1,000,000. MAC has recommended eliminating 29 job titles from the list (e.g., veterinary surgeons, obstetrics and gynecology consultants) and adding 33 job titles (e.g., actuaries, high integrity pipe welders). If the recommendations are accepted, the listed occupations would be the only positions open to migrants from outside the European Economic Area under Tier 2’s shortage occupation route, which has an annual limit of 20,700.

The full 252-page report is available here (pdf).

Photo credit: Alina Hart

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By Ian Macdonald

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf).  OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

• a wage rate included in a collective bargaining agreement;
• a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
• a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
• a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

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On September 6, 2011, the California State Senate passed Assembly Bill 1236 (AB 1236), the Employment Acceleration Act of 2011, which now heads to Governor Jerry Brown. The Act
prohibits the state, counties, cities and special districts from mandating that employers use an electronic employment verification program (such as E-Verify), except when required by federal law or as a condition of receiving federal funds. The Act’s prohibition on mandating use of an electronic employment verification program specifically applies in the following circumstances:

• as a condition of receiving a California government contract;
• as a condition of applying for or maintaining a business license; or
• as a penalty for violating licensing or other similar laws.

The findings and declarations set forth in AB 1236 include, among others:

• E-Verify’s inaccuracies have prevented employers from hiring employees “in a timely manner;”
• had E-Verify been mandatory in 2010 it would have cost employers $2.7 billion; and
• the net societal cost of all federal contractors using E-Verify would be $10 billion per year, according to a U.S. Chamber of Commerce estimate.

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Representative Lamar Smith (R–TX) has called on President Obama to include in the American Jobs Act a provision mandating that employers use E-Verify, the electronic employment authorization program. Responding to Obama’s September 8, 2011, jobs speech, Smith stated: “[I]f President Obama is indeed focused on putting 23 million unemployed or underemployed Americans back to work, there is one element that is missing from his jobs plan: a federal E-Verify requirement. This is one of the best options available to put unemployed Americans back to work.” The E-Verify program has been criticized by many, including Obama, for problems with its accuracy.

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A recent report by the New York Times observes that, as global migration has increased, so has the importance and influence of the International Organization for Migration (IOM), an intergovernmental organization focusing on migration-related issues. IOM, founded in 1951 and comprised of 132 member countries (89 of which joined in the past 20 years), assists governments and individuals. For example, IOM has helped recruit meatpackers for Canada, assisted the U.K. government screen would-be migrants for tuberculosis, and installed microscopes in Bangladesh’s airports to detect passport fraud. Assistance for individuals has included aiding migrants’ repatriation during armed conflicts, and staging folk dramas to warn against sex trafficking.

The Times observes that IOM’s influence varies by location, noting that “[t]he United States and other rich donors largely dictate [IOM’s] agenda and ensure that it does not erode their power to decide which migrants they admit and how many.” In nations whose labor needs are satisfied via migrant workforces, and in nations that supply migrant workers, IOM plays a heightened role in guiding policy and educating and assisting workers. Although some of IOM’s actions have been criticized by policy groups and government officials, with a $1.4 billion budget, it appears that the group, originally established to resettle Europeans displaced by World War II, will remain an active participant in global migration affairs.

Photo credit: Vasare

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U.S. District Judge Sharon Blackburn has ruled (pdf) that a complaint challenging Alabama’s recently-enacted immigration law lacks specificity, and ordered the plaintiffs to amend the pleading. The complaint, filed by 36 immigration and civil rights organizations against 11 defendants, contains “380 paragraphs, including 144 paragraphs of facts and history,” and 9 counts–with each count incorporating all previous factual allegations. Labeled a “shotgun complaint” by Judge Blackburn, the plaintiffs were directed to clarify, by September 16, 2011, for each discrete claim:

• which plaintiff(s) asserts the claim;
• the defendant(s) against whom relief is sought; and
• all factual allegations that support the discrete claim.

The organizations’ lawsuit is one of three challenges to the law; the U.S. Department of Justice and a group of religious leaders also have filed suit. As discussed here previously, on August 29, 2011, Judge Blackburn temporarily enjoined enforcement of the law.

Photo credit: Christian Baig Photography

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The Social Security Administration (SSA) has started using a new process for assigning Social Security Numbers (SSNs): randomization. This change is designed to extend the longevity of the nine-digit SSN and enhance identity protection.

Previously, the first three SSN digits (area number) were assigned by state (e.g., 545-573 California; 449-467 Texas; 050-134 New York). However, the state-driven area number assignment had limitations and, with only approximately 420 million available SSNs, the SSA amended the process to extend the longevity of nine-digit SSNs.

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Throughout September, U.S. Citizenship and Immigration Services (USCIS) will offer free webinars on the following subjects:

• Form I-9: An overview of the process, including step-by-step instructions on completion, retention and storage of Form I-9’s.
• E-Verify Self Check: An overview of the program that allows employees, at no charge, to check their employment eligibility.
• E-Verify: An overview and demonstration of the program, along with examining the enrollment process and employer responsibilities.
• Federal Contractor E-Verify: A general program overview for those awarded a federal contract containing the FAR E-Verify Clause.
• E-Verify for Current Users: A detailed program overview discussing user roles, common mistakes, and case alerts.

Webinar dates and registration links are available on the USCIS website. While some topics are offered multiple times, the webinar on E-Verify for current users is only offered once this month, on September 29. A computer with internet access and a telephone are required for viewing and listening. 

Photo credit: Matthew Bowden

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The Department of Homeland Security (DHS) has issued a final rule, published in the Federal Register on August 29, which will enable U.S. Citizenship and Immigration Services (USCIS) to transition from a paper-file-based systems environment to an “electronic customer-focused, centralized case management environment for benefit processing.” The transition will be a multi-year project that will allow USCIS to:

• streamline benefit processing;
• eliminate the capture and processing of redundant data; and
• reduce the number of and automate forms.

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On August 17, 2011, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum (pdf) to its staff concerning nonimmigrants regularly residing in the same dwelling as a principal nonimmigrant (i.e., a visa holder who is in the United States on a status such as H-1B or F-1). The Memorandum clarifies that nonimmigrant spouses, children, parents, cohabitating partners, and other “household members” of principal nonimmigrants may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder for the duration of their authorized period of stay. The Memorandum defines a “household member” of a principal nonimmigrant as “an alien who regularly resides in the same dwelling as the principal nonimmigrant and with whom the principal nonimmigrant maintains the type of relationship and care as one normally would expect between nuclear family members.”

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012, as of August 26, 2011. Since data were last updated (based on filings as of August 12, 2011), 3,700 H-1B regular cap petitions were filed, bringing the total to 29,000. During the same period, 1,100 H-1B Master’s Exemption petitions were filed, bringing that total to 15,800. Although the number of H-1B regular cap eligible petitions filed is less than half of the cap amount – 65,000 – the cap eligible H-1B Master’s Exemption petitions filed constitute more than 75% of the cap amount – 20,000.

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