Author: kathleenwalker

Increasing I-9 Audits and the Risks of Turning a Blind Eye

On July 24, 2018, Homeland Security Investigations (HSI) announced that it had issued more than 5,200 I-9 audit Notices of Inspection (NOIs) nationwide since January of 2018 as part of a two-phase operation. The second phase of the operation was conducted from July 16 to July 20, during which HSI agents served 2,738 NOIs and made 32 arrests.  2,540 NOIs were served and 61 arrests were made during the first phase of the national operation from January 29 to March 30.  The Acting Executive Associate Director of HSI, Derek N. Banner, noted that HSI will honor its commitment to increase I-9 audits to create a culture of compliance by United States (U.S.) employers.  In fiscal year 2017, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution in addition to $7.8 million in civil fines.  Asplundh Tree Experts, Co. headquartered in Willow Grove, Pennsylvania, was ordered to pay a forfeiture money judgment of $80 million dollars and an additional $15 million in civil fines, which was the largest civil settlement ever levied by Immigration and Customs Enforcement (ICE) in September of 2017 after a six year investigation. In addition, in the Spring of 2019, the Social Security Administration (SSA) is apparently resurrecting the issuance of employer no-match notices (EDCOR  Code V letters) when at least one W-2 form reflects a name and social security number mis-match. On...

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MISSION CREEP – Chinese Trade Skirmishes Lead to Visa Retaliation on June 11

The U.S. Trade Representative (USTR) issued its 2018 Special 301 Report in April, which identifies U.S. trading partners that do not sufficiently protect and enforce intellectual property (IP)  rights or otherwise deny market access.  The USTR Special Report lists the following 12 countries on the Priority Watch List: Algeria, Argentina, Canada, Chile, China, Colombia, India, Indonesia, Kuwait, Russia, Ukraine, and Venezuela.  China has been on the Priority Watch List for 14 consecutive years.  China’s coercive technology transfer practices, barriers to effective IP enforcement, and infringing activity—including trade secret theft, rampant online piracy, and counterfeit manufacturing—are referenced as reasons for inclusion.  While the ongoing threats of trade tariffs continues to cause major chaos as to the U.S./China yin and yang, U.S. visa policy for China now appears to be targeted. Various media and association outlets have reported that as of June 11, U.S. consulates will begin to limit student (F-1) and exchange visitor (J-1) visa validity to one year for graduate students in certain fields of study (e.g. aviation, robotics and high tech manufacturing) in response to concerns regarding intellectual property theft by China.   Currently, under the U.S. reciprocity schedule, which addresses maximum validity periods, a Chinese national may be issued an F-1 or  J-1 visa for up to 5 years. H-1B visas, however, are currently limited to a one year period of validity.  In addition, it appears that special...

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At a Crossroad: Consular Options to Immigrate as USCIS Adjustment Backlogs Increase

In order to uphold the “integrity of our nation’s immigration system,” on October 1, 2017, U.S. Citizenship and Immigration Services (USCIS) began to phase-in a mandate of in person adjustment of status (I-485) interviews for employment based cases at USCIS field offices nationwide.   Previously, USCIS field offices would rarely interview an employment based adjustment applicant. Prior to 1992, however, the legacy Immigration and Naturalization Service (INS) would routinely interview employment based adjustment applicants.   So, there is some precedent for the policy. On May 1, USCIS published its performance statistics related to adjustment of status applications for the first quarter of the 2018 federal fiscal year, which commenced on October 1, 2017. These statistics are just beginning to reflect the impact of these interview changes at the USCIS field office level. For initial comparison, however, it is obvious that staffing challenges for USCIS will become more dire: Employment based adjustment applications approved – Service Center level FY 2017 1st Q                                                                       FY 2018 1st Q Houston                      47                                                      284      (504%) Los Angeles                63                                                      121      ( 92%) Miami                          11                                                       51     (363%) New York                    110                                                    172     ( 56%) In March of 2018, USCIS announced that it was testing a new method to calculate its processing times of various applications, including the I-485 adjustment application. USCIS created a new website page for reviewing the processing times of its forms.   This announcement came in the wake of...

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Interagency Cooperation: Raising the Bar for Immigration Compliance

On April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) should again be open for business for a flood of H-1B petition filings, which are subject to the annual cap. Employers are required to pay the higher of the actual or prevailing wage for the area of intended employment to sponsor an H-1B specialty occupation visa.  Last year, USCIS received enough petitions (199,000) to meet the numeric cap (85,000) on April 7, 2017. Based on developments which followed the execution of the “Buy American, Hire American” (BAHA) Executive Order (EO) on April 18, 2017, both employers and employees have a new list of compliance considerations to review as part and parcel of their H-1B petition process. One of the key considerations is tied to increased oversight of submissions by an H-1B visa applicant and the petitioning employer with the various applicable branches of government.  Stove-piped legal representation is not advisable. (e.g., only focusing on one agency segment or one portion of a filing process)  While USCIS still struggles with its transformation project to achieve electronic filing for its petitions, attorneys and employers must make sure that representations made to USCIS and to the Department of Labor (DOL) in the petition process are also being addressed with any Department of State (DOS) consular visa application, which is also an adjudicative process. In addition, employers must be ready for increased site...

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SURVIVAL IN THE IMMIGRATION CULTURE OF DELAY AND SOCIAL MEDIA MINING: ADJUSTMENT INTERVIEWS

With the recent change by U.S. Citizenship and Immigration Services (USCIS) to mandate in-person interviews for employment based adjustment cases along with changes to require the review of social media and to what constitutes a misrepresentation of intent at the time of a visa application or entry to the U.S., employers must recalibrate and intensify their intake of cases and timing considerations before any adjustment of status filing in the U.S. Background: On October 1, 2017, USCIS will start to phase-in interviews of the following adjustment of status cases for U.S. legal permanent residence: 1.            Employment based I-485 applications. 2.            Refugee and asylee relative I-730 petitions for beneficiaries who are in the U.S. and are trying to join a principal asylee/refugee applicant. In the past, in person interviews were not mandated for such adjustment of status applicants. The change was made to comply with Executive Order 13780 (Protecting the Nation From Terrorist Entry in the United States) issued on March 6, 2017 (the EO).  Section 5 of the EO directed the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to implement a program as part of the adjudication process to identify those who seek to enter the U.S. on a fraudulent basis, and/or who support terrorism, violent extremism, and acts of violence toward any group or class of people in...

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The HR Blog is published by Dickinson Wright PLLC to inform the public of important developments within the firm and practice areas. The content is informational only and does not constitute legal or professional advice. We encourage you to consult a Dickinson Wright attorney if you have specific questions or concerns relating to any of the topics covered in this blog.

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