New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

Many employers are justifiably confused as to whether they may accept a receipt notice showing that an employee has applied for a particular document that is acceptable for I-9 employment eligibility verification purposes. With U.S. Immigration and Customs Enforcement (“ICE”) serving an additional 1,000 Notices of Inspection to employers for I-9 audits in June 2011 alone, it is a good time to refresh your understanding about the use of receipts for initial verification, reverification and to correct errors found in the course of self-audits.

As a general rule, a receipt notice showing an application for an initial period of employment or for an extension of an expiring employment authorization period is not acceptable during the initial I-9 verification or a subsequent reverification. There are, however, exceptions. An employer must accept a receipt during the I-9 process in place of one of the otherwise accepted documents – known as a List A, List B or a List C document – set forth on the instructions accompanying the Form I-9 in the following circumstances:
 

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Immigration and Customs Enforcement (“ICE”), the enforcement unit of the U.S. Immigration Service, is continuing its vigorous efforts to police the Immigration Reform and Control Act (“IRCA”), with a particular emphasis on employer audits and enforcement actions. IRCA prohibits employers from knowingly hiring or employing unauthorized workers, and requires employers to verify the work authorization of employees through the Form I-9 employment verification process at the time of initial employment.  Under the current Administration, ICE has dramatically ramped up I-9 audits and enforcement actions. In the fiscal year ending September 30, 2010, ICE conducted over 2,000 employer audits, compared to only 250 just three years ago. The dollar value of penalties assessed and the number of debarments of federal contractors for IRCA violations has also significantly increased.

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As all employers know, the Immigration and Nationality Act (“INA”) makes it unlawful for an employer to employ an individual who is not authorized to work in the United States. However, the non-discrimination provisions of the INA prohibit an employer from discriminating against certain individuals based on national origin or citizenship status with respect to, among other things, hiring and termination. As a result, employers are often faced with a dilemma: how far can an employer go to obtain information regarding an applicant’s immigration status during the hiring process without violating the INA. This dilemma may appear to be particularly difficult when making an employment decision based on an individual’s need for visa sponsorship. But, as explained below, that problem can be solved relatively simply.

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Foreign nationals frequently approach employers with a request to sponsor them for permanent residency based on employment. As many employers know, the first step in the sponsorship process consists of obtaining an approved labor certification application from the U.S. Department of Labor (DOL). This permanent labor certification program (often referred to as the “PERM” program) was redesigned by the federal government in 2005 and contains very specific rules and regulations detailing how employers must conduct any recruiting for a permanent residency position.

One requirement for obtaining certification is proof that there are no minimally qualified U.S. workers for a specific job vacancy within a specific job pool. In order to satisfy that requirement, it is very important for the employer to clearly and properly define the qualification threshold below which the employer is not willing to hire any job applicant - the employer's actual minimum requirements for the position. As a result, PERM recruiting differs significantly from the normal hiring practices of most employers, who seek the most qualified candidate for the job, not just one that meets the job's minimum requirements. Employers should strictly comply with DOL’s regulations and keep the following points in mind when drafting minimum job requirements.
 

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U.S. employers continue to rely upon the H-1 B Specialty Occupation Worker category to facilitate the temporary employment of foreign nationals in professional positions.  In 2010, the U.S. Citizenship and Immigration Services ("USCIS") is authorized to issue 65,000 H-1 B approvals for those beneficiaries who possess at least a bachelor's degree, and an additional 20,000 approvals for those beneficiaries who have obtained a master's or higher degree from a college or university in the United States. These limits are often referred to as the "H-1B cap." These approvals authorize employment beginning October 1, 2010 (the beginning of the federal government's fiscal year).

Pursuant to federal regulations, interested U.S. employers may file H-1 B petitions six months in advance of the start of the fiscal year. This means that the earliest that a U.S. employer may submit a petition for a new H-1B worker, who has not already been counted against the H-1B cap, is April 1, 2010.
 

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The Office of Fraud Detection and National Security (“FDNS”) is part of the United States Citizenship and Immigration Services. FDNS’s mission is to detect, deter, and combat immigration benefit fraud. FDNS consists of approximately 650 Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. In addition, FDNS has contracted with multiple private investigation firms to conduct site visits on its behalf. In 2010, FDNS intends to increase its H-1B site audits to 25,000 – a fivefold increase. If you are unlucky enough to be chosen for one of those 25,000 site audits, what should you do? The American Immigration Lawyers Association has provided suggestions.  This post contains some of those site audit basics and recommendations for preparation.

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In a final rule published today in the Federal Register, the Department of Homeland Security (“DHS”), has rescinded its controversial “no-match” letter regulation promulgated during the Bush administration. The action has been anticipated ever since it was initially announced in July, and completes a process which commenced with the publication of a proposed rule on August 19, 2009. The Bush era regulation never went into effect because its enforcement was preliminarily enjoined by a federal district court.  The significance of the rescission is explained below.

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E-Verify is a free, Internet-based system operated by the Department of Homeland Security (“DHS”) and the U.S. Citizenship and Immigration Services (“USCIS”) in partnership with the Social Security Administration (“SSA”). E-Verify enables participating employers to electronically verify the employment eligibility of their employees based upon electronic information and records maintained by the DHS and SSA databases. As of September 8, 2009, many federal contractors and subcontractors are required to use the E-Verify system to confirm whether their employees are eligible to work in the United States. This change is the result of the final version of the applicable Federal Acquisition Regulation (“FAR”). The scope of coverage of the new rule is described below. DHS, SSA and USCIS have a variety of informational resources on E-Verify on the USCIS website, www.uscis.gov.

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