Immigration Droppings

H-1B Cap Exhausts: Change is Needed Part 2011~

I posted a similar blog earlier this year.  Last week USCIS announced the FY 2012 H-1B cap exhausted.  There are several things to draw from this.  

First, and on a positive note, when the economy is doing well companies are hiring.  For FY 2011 the cap exhausted in January of 2011.  For FY 2012 the H-1B cap exhausted in November; two months earlier.  While clearly note the sole nor a scientific indicia of a recovering economy, there is something to be said here.  

Second, we still need change.  This is the primary opportunity for President Obama to issue an executive order suspending the filing regulations for FY 2013, allow filings now, and also order DOS/DHS to issue advanced paroles to those who get their H's approved.  This would allow the economy to continue to grow!  

Third, we still need change.  The exhaustion of a cap (that is much too limiting) should be a key topic when discussing comprehensive immigration reform with anyone; whether its a senator, representative, your grandmother, your co-worker or your friend.  Why do we want to limit our potential economic growth?  It's simple.  The voters are entitled and not privileged.  They are entitled to jobs and don't feel the privilege of getting one and working one.  Case in point is the Alabama law.  Not only did it scare away those who are undocumented or without employment authorization, but those who were born here and out of work certainly haven't stepped to the plate to cover the employee shortages.  

The exhuastion of the H-1B cap does not mean that cap-exempt filings are precluded and these should continue to be filed.  As well, if there is an employee who is transferring over that has been previously counted against the cap then these cases should also be filed.  However, any transfers of employment where the beneficiary was not counted against the cap (from a school to a private employer as an example) cannot be filed until April of 2012 and the person cannot start working until October 1, 2012.  It's always best to check with your in house counsel and/or an immigration lawyer on these issues prior to proceeding. 

Philip Eichorn

Track 3 FOIA Requests Violate Settlement Agreement Says ND California

The U.S. District Court in the Northern District of California granted partial summary judgment, ordering USCIS to respond to Alien file requests in 20 days absent “unusual circumstances.”  The Court further found that Track 3 violates a 1992 settlement agreement and was promulgated in violation of the APA and FOIA.  The case is Hajro v. USCIS. 

The issue here is that Congress did not specifically permit discovery in removal proceedings.  However, Congress did indicate that an alien has a right to review his/her alien file.  DHS/USCIS have fought back and indicated they are not allowing defense attorneys to simply review the file as the scope of that review is limited by the Freedom of Information Act and Privacy Act.  Some judges have held this to be incorrect and ordered DHS to produce the file.  Some have agreed with DHS.

That said, the underlying basis for obtaining the majority of the alien file is to file a FOIA request. According to regulation the response must be answered within 20 days.  There is a settlement agreement frm 1992 that controls.  As USCIS is so far behind and simply cannot answer all the FOIA requests in a timely manner, the adopted a procedure to allow for faster dissemination of the responses for those in removal proceedings; Track 3.  The ND CAL held that Track 3 is incorrect and that USCIS must respond within 20 days.  

Interesting that President Obama has preached transparency of government and is promoting jobs.  It seems like a very simple fix here.  Add in an additional hundred or two hundred FOIA responders and comply with the regulations and settlement agreement.  Remember, the President does not need Congressional approval for this fix; he's the head of the executive branch and has unfettered control over the agencies in said branch.  

Philip Eichorn

 

 

Widow(er) Window Expiring on October 28, 2011

The two-year marriage rule for widow(er)s of U.S. citizens was abolished, but widow(er)s must file an I-360 by October 28, 2011 if the marriage was less than two years old at the time of death, and the death occurred prior to October 28, 2009. If you or someone you know is in this situation, please contact us immediately.

Philip Eichorn

Raleigh Man Arrested for Falsifying Immigration Documents

On September 13, 2011 Immigration and Customs Enforcement announced the arrest of Tommie Rand Pierce.  He's a 68 year old Raleigh man who took money from people, falsified their immigration papers and submitted them to USCIS for immigration benefits.  Link to the ICE Announcement.  At this point there at least 265 aggrieved individuals who need help rectifying their choice of preparer (which really should only be a lawyer).  

It's critical that all foreign nationals request to see their attorney's bar license and/or certificate prior to hiring them to do work.  All states require attorneys to carry proof that their license is current and unexpired.  Those who are caught up with paralegals, notarios and other people such as Mr. Pierce, must excuse themselves from these situations, search the American Immigration Lawyers Association website for the immigration lawyer search function and use that to find themselves a reputable attorney.  

Philip Eichorn

ICE Arrests More Than 2,900 Convicted Criminal Aliens

In an operation named "Cross Check," Immigration and Customs Enforcement arrested over 2,900 convicted criminal aliens.  These people are the focus of the Obama administration's removal policy and allocation of assets.  The criminal alien class is supposed to have the largest amount of fiscal resources devoted to removing them.

It's critical that all people understand that just because a person is arrested by ICE doesn't mean their detention is mandatory and without bond.  There are a great many exceptions and friends and family should retain counsel to review these cases.  ICE agents are human and they do make mistakes and they do misread the law.  

Additionally, there are a great many avenues of relief from removal regardless of whether detention is mandatory or not.  Many people who have been lawfully admitted either as a non-immigrant or as a permanent resident can apply for waivers or cancellation of removal if they are eligible.  As well and depending on the age of the crime, there are arguments that the old law under which the person was convicted was not a deportable statute.  Finally, convictions that occurred prior to 1996 may be eligible for 212(c) relief.  This form of relief as well as the 212(h) waiver can be used to obtain lawful status even for those convicted of aggravated felonies.  ICE posted a list of those arrested and at least two of them may not even be deportable!

Please call us if you or a loved one has a situation listed above or a similar one. 

 

Philip Eichorn

Fiscal Year 2013 Diversity Lottery Registration

Yesterday the Department of State announced the 2013 Diversity Visa Program (DV-2013) will open at noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011.  The regristration period will close at noon, EDT, Saturday, November 5, 2011. All applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) which can be found at www.dvlottery.state.gov. DOS indicates that paper entries will not be accepted.  If you or someone you know has questions or needs assistance in registering, please contact the undersigned.

 

Philip Eichorn

 

Ohio BMV Policy Regarding Asylees

A recent policy initiated by the Ohio Bureau of Motor Vehicles (BMV) has many asylees and attorneys concerned.  When Asylees apply for a driver’s license BMV seizes all of their documents and holds them while confirming their asylee status.  

Initially, we're curious as to what legal authority the Ohio BMV is operating when it seizes these documents.  Second, and out of reasonableness, the asylees are without proper identification while Ohio.  

The Ohio Chapter of the American Immigration Lawyers Association is currently engaged in dialogue with the BMV to ascertain what drove this shift in policy and the authority for it.  If you know of a case such as this, please contact the undersigned as soon as possible so that we can include your (or your friends, coworkers, family member's) complaint.  

 

 

Philip Eichorn

Do I or Don't I?: The I-9 Self-Audit And Who Does It?

Our office routinely performs I-9 self-audits.  In the course of preliminary conversations with potental new clients and existing clients contemplating a self-audit, this is the primary question.  What benefit do I get out of outsourcing an I-9 self-audit.  The answer is part legal, part experience and part common sense.

First, as an immigration law firm, we know immigration law and the different statuses.  For instance, there is a difference between a person who is on OPT and on an H-1B.  How that I-9 is completed and updated when the H-1B goes into effect is an easy example.  As we routinely deal with cases that are changes and adjustments of status, we know what status is authorized to work and when.  We also see these documents on a daily basis and know when there are potential issues impending.  

Our firm is part of the American Immigration Lawyers Association.  AILA is a top-notch organization that is on the cutting edge of communication with ICE and HSI as they ramp up worksite enforcement.  We get the information in much more depth and faster.  Some firms that provide wrap around litigation services, labor and employment law and HR counseling are excellent resources for those areas.  But they are not immigration lawyers.

Second, when determining whether or not to perform your own I-9 self-audit, think about who has been filling them out for the past several years.  Do they have the proper training?  Have they been to the recent conferences?  Are they tied in to the AILA resources?  Common sense says, is an independent third set of eyes better to review the I-9's than the set of eyes that completed the I-9 to begin with?

That last question is the one that captures the most attention.  A company can have either administrative or criminal liability.  If there is a knowing pattern or practice by the HR person completing the I-9's, wouldn't you want to know now and begin to mitigate the liability?   

Please confer with your current general counsel and determine if they are experienced immigration lawyers and if not, now is the time for that check-up.  

 

Philip Eichorn

www.eichorn-law.com

Louisiana Follows North Carolina Mandating E-Verify

Louisiana Gov. Bobby Jindal signed into law the following E-Verify bills, HB 342 (Act 376) & HB 646 (Act 402). The bills expand the use of E-Verify and mandate certification through E-Verify for businesses seeking public contracts.  This is similar to North Carolina's HB 36.  

It is important to see the trend here.  States are going to enforce the federal law and in doing so attempt to "protect" their voting public by rooting out those without proper work authorization.  Regardless of how you stand politically on immigration reform, we all as business owners must be cognizant of the federal work authorization laws and in particular I-9 compliance.  The best practice is to create a culutre of compliance and to have an independent third-party perform a "self-audit."  

Philip Eichorn

www.eichorn-law.com

I-9 Violations: Administrative and Criminal

What most small business owners do not know about I-9 compliance will hurt them; likely in the form of substantial civil penalties.  However, for those few business owners who are deemed to have knowledge that they are continuing to employ someone who is not authorized to work in the U.S. or have hired someone who is not authorized to work in the U.S., the penalty can be a criminal indictment.  The form of the criminal charges varies from False Statement charges to Mail Fraud and Wire Fraud up t and including RICO charges (yes like the mob bosses).    

The administrative penalties for substantive and uncorrected technical violations range from $110 to $1,100 per violation.  On the other hand a criminal fine can range from $375 to $16,000.  So if your business employs 50 people and each I-9 contains a de minimis violation that is left uncorrected, then you can probably be weigh the cost at about $5,500 to settle with ICE.  

I've recently done a series of I-9 self audits.  Every single company has had multiple substantive violations that could impute knowledge on the business owner that he/she was continuing to employ unauthorized workers.  Almost every single I-9 I've come across has contained at least one technical violation.  This is not an indictment on the small business owner's lack of knowledge.  Some of the largest companies in the country have been hit with inspections and have been fined; including Wal-Mart and Abercrombie.  

Now in North Carolina, HB 36 mandates the use of the federal E-Verify system for employers with more than 25 employees.  Not only do North Carolina employers have to maintain I-9 compliance or face federal issues, but if they don't use the E-Verify system, they now face state based penalties.  

This is the wave of the future.  In most cases, it is the dream of foreign nationals to come to the U.S. for employment and to build a better life for themselves and their families.  This is a primary avenue of enforcement for DHS.  If they can cut off employment opportunities then they hope to stem the flow of people who are violating the immigration laws.  For the states that inact the type of legislation as North Carolina did, they think they are protecting their residents.  Whether or not they are is unknown and whether or not the state law is constitutional is another discussion.   

My best advice is to create a culture of compliance within your company.  It is a critical first step.  Briefly, by performing a self-audit before ICE gets involved in your backyard, creates the beginning of a "good faith" argument that you are self-policing.  Then establish a written hiring and employment eligibility verification program.  Finally train your staff on compliance and outsource to an immigration law firm to handle annual audits.  Again, that is a very brief overview of the beginning of a culture of I-9 and work authorization compliance.  

Philip Eichorn

www.eichorn-law.com