H-1B Filings for Fiscal Year 2011 can be Filed April 1, 2010

Wed, 10 Mar 2010 22:12:48 GMT

H-1B filing season is upon us again. The most often used work visa for Professional Workers is the H-1B. The H-1B has a limited availability of approximately 58,000 per year. Despite the economy, these visas still are anticipated to be in high demand and become unavailable by the end of 2010.

Although, H-1B visas will be valid on October 1, 2010, a company may apply as early as April 1, 2010. Because of the high demand in this category, employers should file as early as possible. Indeed, the first week of April is recommended.

This H-1B quota applies to current or potential employees who are not in H-1B status, for example:

- Employees currently in F-1 student status who are working on a limited duration work authorization;

- Employees in TN, L, E or another status for whom the company may want to commence a green card process; and

- Employees currently abroad who will move to a U.S.-based role in the fall.

Employees currently working based on H-1B status are not subject to this numerical limit, and therefore generally do not need to be concerned about this timing.

Last year, the government did not meet the H-1B cap until December. We anticipate that the filing window will be much shorter this year. Contact the Global Immigration practice group at Jackson Lewis as soon as possible to start the filing process.

Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They?

Wed, 10 Mar 2010 21:45:13 GMT

Is the Eleventh Circuit Court of Appeals going to reverse its decision in the controversial case of Corbitt v. Home Depot?

Last August I reported on this decision by the Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama), in which the court analyzed the claims of two former Home Depot employees who claimed their male supervisor repeatedly subjected them to unwanted flirtatious compliments and sexual touchings. The plaintiffs alleged that the supervisor made such comments as "your hair is beautiful," and "I like your green eyes" and touched the plaintiffs in a sexual way on several occasions. He even allegedly told one of the employees, “I know you’re not gay, but you’ve probably thought about it, I could show you how, I know you’ll like it." The court held that under the totality of the circumstances, the supervisor's conduct was not sufficiently severe or pervasive to constitute sexual harassment under Title VII.

In December the court issued a revised opinion that reached the same result on the plaintiffs' sexual harassment claims.

Today, however, the court vacated its December opinion and announced that the case will be reheard en banc, i.e. by the whole court rather than a three-judge panel. This is a signficant development that may portend a reversal of the holding in Corbitt and a change in the law on sexual harassment in the Eleventh Circuit. Stay tuned.

Flirtation and Brief Touchings are Not Sexual Harassment -- Or are They?

Wed, 10 Mar 2010 21:45:13 GMT

Is the Eleventh Circuit Court of Appeals going to reverse its decision in the controversial case of Corbitt v. Home Depot?

In December the court issued a revised opinion that reached the same result on the plaintiffs' sexual harassment claims.

Today, however, the court vacated its December opinion and announced that the case will be reheard en banc, i.e. by the whole court rather than a three-judge panel. This is a significant development that may portend a reversal of the holding in Corbitt and a change in the law on sexual harassment in the Eleventh Circuit. Stay tuned.

UPDATE - COBRA Subsidy: New Extension Through March 31, 2010

Tue, 09 Mar 2010 20:07:52 GMT

The following EBG client alert should be of interest to all Florida employers.

By Joan A. Disler, Michelle Capezza, and Jason M. Rothschild

As we reported in our Client Alert of December 24, 2009 ("UPDATE: COBRA Subsidy: What It Means for Employers Now"), President Obama signed into law the Department of Defense Appropriations Act, 2010 (the "Defense Appropriations Act"), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA") pertaining to premium assistance for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The Defense Appropriations Act extended the COBRA premium subsidy program for assistance-eligible individuals who became eligible for COBRA from the period that began September 1, 2008, and ended on December 31, 2009, to the period that ended on February 28, 2010.

On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (the "Act"). The Act extends the 15-month COBRA premium subsidy program for an additional 31 days. Thus, this extension will provide the COBRA premium subsidy for eligible individuals who are involuntarily terminated from employment through March 31, 2010. Congress is currently considering another bill, H.R. 4213, the Tax Extenders Act of 2009, which would extend the COBRA premium subsidy program through the end of 2010.

The Act also expands the application of the premium subsidy to individuals who had a reduction of hours of employment (occurring from September 1, 2008, through March 31, 2010), followed by an involuntary termination that occurs on or after March 2, 2010 and before April 1, 2010. These individuals are eligible for the premium subsidy on a prospective basis, whether or not they made an election of COBRA coverage on the basis of the reduction of hours of employment. In such cases, the involuntary termination of employment is treated as the qualifying event for purposes of obtaining the subsidy. However, pursuant to the Act, the maximum duration of the COBRA period is determined as if the qualifying event were the reduction of hours of employment. Any of these individuals who have these new election rights are not required to make payments for any continuation coverage between the reduction of hours and the involuntary termination of employment. It is not clear whether the intent of the legislation is also to allow an eligible individual to elect retroactive (unsubsidized) coverage as of the date of the reduction of hours of employment. Administrators of group health plans will now have additional notice requirements with respect to individuals who are COBRA assistance-eligible under this new rule.

The Act also includes clarification regarding an employer's determination as to whether an employee's termination was involuntary. The Act provides that, for purposes of the COBRA subsidy rules, a termination of employment shall be deemed to be an involuntary termination, provided that (i) the employer determines that such termination is an involuntary termination based on a reasonable interpretation of ARRA and the administrative guidance thereunder, and (ii) the employer maintains supporting documentation of the determination, including an attestation by the employer of involuntary termination.

The Department of Labor Employee Benefits Security Administration has updated the introduction on its COBRA Web page to reflect the Act and is in the process of updating the fact sheet, frequently asked questions and other materials on the COBRA Web page. Additional guidance is anticipated

UPDATE - COBRA Subsidy: New Extension Through March 31, 2010

Tue, 09 Mar 2010 20:07:52 GMT

The following EBG client alert should be of interest to all Florida employers.

By Joan A. Disler, Michelle Capezza, and Jason M. Rothschild

ICE Expands Worksite Enforcement Activities in the Southeast

Mon, 08 Mar 2010 19:54:19 GMT

On Tuesday, March 2, 2010, the U.S. Department of Homeland Security (“DHS”) announced that it was expanding its worksite enforcement strategy in the Southeastern United States. As part of this strategy, the U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS directly responsible for worksite enforcement, indicated that it is issuing Notices of Inspections (“NOIs”) to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi.

These NOIs alert the businesses that ICE will be inspecting their Form I-9s and seeking to review voluminous other business records, including a list of current and terminated employees with hire and termination dates; the names, social security numbers and dates of birth of all active employees; quarterly wage and hour reports and/or payroll data on all employees covering the period of inspection; quarterly tax statements; all correspondence with the Social Security Administration (including “No-Match” letters); and more! All of this is an effort by ICE to determine whether the businesses are complying with federal employment eligibility verification laws and regulations. This DHS announcement is the latest in a series of expanding worksite enforcement efforts by the Obama administration. Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers.

Hector Chichoni, the Chair of EBG’s Southeastern Immigration Practice, notes: “this action by ICE underscores what the Immigration Law Group at EBG has been advising clients since the Obama administration took office. Businesses need comprehensive employment verification and related compliance plans in place because the civil and potentially criminal consequences of this enforcement strategy can be severe. Businesses that ignore this important aspect of their operations can face substantial fines that make compliance now not only good corporate citizenship, but also good risk management.”

These ICE inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area. This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis management procedures, including access to outside counsel that specializes in this area, in the event that the “ICEman” cometh!

ICE Expands Worksite Enforcement Activities in the Southeast

Mon, 08 Mar 2010 19:54:19 GMT

Legislation to Increase I-9 Penalties Introduced in Congress

Fri, 05 Mar 2010 23:13:44 GMT

New legislation that would expand penalties for employers who knowingly hire unauthorized workers has been introduced in the House of Representatives. The “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627), introduced by Representative Frank Kratovil (D-Md.), would significantly increase imprisonment terms, criminal fines, and civil fines that can be levied against an employer or individual with “hiring authority.” A person with “hiring authority” is anyone who has “direct authority to make a decision to hire or to recruit or refer for a fee, an individual for employment.”

Currently, criminal penalties for knowingly hiring unauthorized workers apply only if a “pattern or practice” can be shown. An entity or individual may be fined $3,000 and an individual may be imprisoned for up to six months for the entire “pattern or practice.”

The proposed legislation would impose criminal penalties for each unauthorized worker, and criminal penalties would increase with each subsequent conviction:
- For a first offense, a fine of $2,500 and/or imprisonment of up to 1 year
- For a second offense, a fine of $5,000 and/or imprisonment for up to 2 years
- For a third or subsequent offense, a fine of $10,000 and/or imprisonment for up to 5 years

The bill also would increase the civil penalties assessed:
- For a first offense, a fine ranging from $1,000 – 5,000 (currently $250 – $1,000)
- For a second offense, a fine ranging from $5,000 – 10,000 (currently $2,000 – $5,000)
- For a third or subsequent offense, a fine ranging from $10,000 – 20,000 (currently $3,000 – $10,000)

Stay tuned as Jackson Lewis will continue to follow this legislation and update readers through this blog.

Immigration Reform Ping Pong

Fri, 05 Mar 2010 04:25:18 GMT

It's a question I hear almost every day.

"Do you think," ask clients, "we'll have immigration reform this year?"

It's a tough question.

Immigration reform resembles a ping pong match.

Ping.

According to the Los Angeles Times, the President met yesterday with two senators, Democrat Charles Schumer and Republican Lindsey Graham, whose support are crucial to immigration reform. Presumably, the purpose was to ask them to hasten a blueprint.

Pong.

Just a month ago, immigration reform seemed dead. After Scott Brown won the Massachusetts special election, Newsweek reported the chances of having an immigration reform bill had become dramatically slimmer.

Obama's State of the Union Speech also contributed to the pessismistic outlook of pro-reform leaders. Many observers felt his reluctance to address immigration reform was tantamount to abandonment.

Reverend Samuel Rodriguez, head of the largest U.S. Hispanic Christian organization, labeled Obama's 38-word commentary "a crumb" to satisfy the hunger of immigrant communities. He added it marked 'the death knell of immigration reform in 2010.

Ping.

The disillusionment articulated by Rodriguez was a stark contrast to sentiments last fall.

In November, DHS secretary Janet Napolitano stated the Obama Administration would push for immigration reform in 2010.

Shortly afterwards, Congressman Louis Gutierrez introduced the Comprehensive Immigration Reform for America's Security and Prosperity Act (CIR ASAP) Act of 2009.

Pro-immigrant leaders expressed optimism about the prospects of immigration reform.

Pong.

Prior to these gestures, despite Obama's bold campaign promises, immigration reform languished for several months after his victory.

At a populist pit stop in my neck of the woods last spring, the president was taken aback when posed a question about immigration reform. The question was not surprising for a Southern California audience. Yet, Obama's response resembled a rookie batter swinging at one of Josh Beckett's curveballs.

And The Winner Is . . .

The president understands the volatility of reform. He has tried to appease both sides of the immigration equation. However, with midterm elections around the corner, the issue is reaching a boiling point.

Very soon, the administration will have to fish or cut bait.

The Democratic Solution: Counting Votes

Before joining the bar, I spent several years working in political offices.

I learned the art of counting votes. Before diving in too deeply.

Given the uncertain political climate in a midterm election year, my guess is the president will take a middle-of-the-road approach.

He cannot go too far in promoting pro-immigration legislation or he'll lose the support of many moderates.

On the other hand, as Politico's Ben Smith points out, Obama must push some of his campaign promises to maintain the enthusiasm of immigrant communities which strongly voted for his party two years ago.

My hunch is that one or two "safer" pieces of the pro-immigrant agenda will be taken up in the spring or early summer.

But like I tell my clients, don't bet the house on it.

Miami-Dade County Passes New Wage Theft Ordinance

Wed, 03 Mar 2010 16:42:44 GMT

By Teresa Maestrelli

The Miami-Dade Board of County Commissioners recently approved a Wage Theft Ordinance designed to make it easier for employees to take legal action against employers that fail to pay (or underpay) them. Under the new ordinance, the county will rely on a streamlined hearing examiner process to address complaints by employees.

The unanimous vote made Miami-Dade the first county in the nation to adopt a countywide wage theft law.[1] For nearly a year, members of the South Florida Wage Theft Task Force - a coalition of union, immigrant, faith, women’s and legal services organizations - worked with County Commissioner Natacha Seijas, the principal sponsor of the ordinance, to craft and introduce the ordinance.

The ordinance bars wage theft, and allows the county to use its police powers to intervene and help recover workers’ back pay. The ordinance specifically applies to private sector employees and employers in cases involving at least $60 (the “threshold amount”). Under the ordinance, wages include pay for daily, hourly, or piece work at a rate no less than the highest applicable rate established under federal, state, or local law.

Wage-Theft Violations:

An employer that fails to pay a portion of wages due to an employee, according to the wage rate applicable to that employee, within a “reasonable time” from the date on which the work was performed by the employee, shall be wage theft. The ordinance establishes a presumption that a “reasonable time” is no later than 14 calendar days from the date on which the work is performed. Employers may lengthen the period of time between the date work is performed and the date the employee is paid wages, for a period not to exceed 30 days, upon express written agreement signed by the employee.

Procedures for Wage-Theft Complaints:

An aggrieved employee may file a complaint with the county alleging a violation of the ordinance. The complaint must set forth the facts upon which it is based with sufficient specificity to identify the employer and for the county to determine both that an allegation of wage theft has been made, and that the threshold amount has been met. Upon determining that the complaint alleges wage theft, the county will then serve the complaint on the employer, which will have 20 days to file an answer.

Hearing Before Hearing Examiner:

Upon request by either party, a hearing will be held before a Hearing Examiner appointed by the county. In conducting any hearing to determine whether a violation of the ordinance has occurred, the Hearing Examiner will have the authority to administer oaths, issue subpoenas, compel the production of and receive evidence. The burden of proof by a preponderance of the evidence rests upon the complainant/employee.

Upon the conclusion of the hearing, an adjudicative final order will be issued and served upon the parties setting forth written findings of fact and conclusions of law.

Enforcement of Violations:

At the conclusion of the hearing and upon a finding of a wage violation, the employer will be ordered to pay wage restitution to the affected employee in an amount equal to three times the amount of back wages that the employer is found to have unlawfully failed to pay the employee. The county will further order the employer to pay the Board of County Commissioners an assessment of costs not to exceed actual administrative processing costs and costs of hearing. The new ordinance provides for additional penalties for failing to comply with the Hearing Examiner’s order.

As demonstrated above, the penalties for violation of the ordinance can be costly. Employers in Miami-Dade County need to be sure that they comply with the new ordinance by timely paying wages due to their employees. As stated, the new ordinance establishes a presumption that a reasonable time is no later than 14 calendar days from the date on which the work is performed, however, employers are free to modify that (for a period not to exceed 30 days) by an express written agreement signed by the employee.

[1] San Francisco has an ordinance similar to Miami-Dade’s, but it only covers the city. Los Angeles and New Orleans also are considering wage theft legislation.

Miami-Dade County Passes New Wage Theft Ordinance

Wed, 03 Mar 2010 16:42:44 GMT

By Teresa Maestrelli

Wage-Theft Violations:

Procedures for Wage-Theft Complaints:

Hearing Before Hearing Examiner:

Upon the conclusion of the hearing, an adjudicative final order will be issued and served upon the parties setting forth written findings of fact and conclusions of law.

Enforcement of Violations:

[1] San Francisco has an ordinance similar to Miami-Dade’s, but it only covers the city. Los Angeles and New Orleans also are considering wage theft legislation.

Florida Led Nation in FLSA Lawsuits in 2009

Mon, 01 Mar 2010 14:34:08 GMT

Florida led the nation in Fair Labor Standards Act lawsuits in 2009. Statistics generated from PACER (Public Access to Court Electronic Records) show that about 2000 new cases were filed in United States District Courts in Florida last year, far more than in any other state.

Of course, Florida is not the only hotbed of wage-hour litigation. California, which has its own, more rigorous wage-hour laws, has a large number of wage-hour cases filed in its state court system. Texas and New York are also seeing increasing numbers of wage-hour cases.

But when it comes to the FLSA, the Sunshine State rules. The reasons for this are somewhat mysterious. Are Florida employees more litigious than in other states? Do Florida employers violate the FLSA more often? Is there a more active plaintiff-side employment bar in Florida? I suspect the answer is a combination of all these factors, plus good old-fashioned word of mouth. Here’s what I mean: The vast majority of FLSA cases settle before trial. FLSA settlements generally must be approved by a court, see Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), and many judges refuse to allow FLSA settlements to be confidential. And even if the terms of a settlement are confidential, a settling plaintiff can always disclose that the case has been “resolved amicably,” or words to that effect. Whatever the exact words, the message is clear – the plaintiff got a nice check. It’s like that old shampoo commercial from the 70’s: a settling plaintiff tells two friends, and they tell two friends, and so on and so on… Pretty soon you have 2000 FLSA cases on the docket.

So what can a Florida employer do to avoid being named in an FLSA lawsuit? Well, the best advice I can offer is to make every reasonable effort to comply with FLSA. That may seem obvious, but it’s not as easy as it sounds because the FLSA can be counterintuitive; its rules are often inconsistent with what seem to be reasonable and ethical business practices. But if you learn what the FLSA requires, and adopt policies and practices that are consistent with the law, you will go a long way toward avoiding a lawsuit. And, yes, get the advice of a qualified employment lawyer if you are unsure about what to do. Believe me, it will be far less expensive than litigation.

Florida Led Nation in FLSA Lawsuits in 2009

Mon, 01 Mar 2010 14:34:08 GMT

UPDATE - COBRA Subsidy: DOL Issues Updated Model COBRA Notices and Other Guidance

Sat, 27 Feb 2010 18:32:42 GMT

The following EBG Client Alert should be of interest to all Florida employers

by Joan A. Disler and Ray Kaplan

As we advised you in our Client Alert that was issued on December 24, 2009 ("UPDATE: Cobra Subsidy: What it Means for Employers Now"), President Obama signed into law the Department of Defense Appropriations Act of 2010 (the "Act"), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA") pertaining to premium assistance for benefits under the Consolidated Budget Reconciliation Act of 1985 ("COBRA"). The Department of Labor ("DOL") has issued the following updated information, of which we wanted to make you aware:

On February 17, 2010, an updated Application for Expedited Review of Denial of COBRA Premium Reduction for the amendments to ARRA under the Act, which is available on the DOL Web site by accessing the following link: http://www.dol.gov/ebsa/COBRA/main.html.

On January 13, 2010, updated model COBRA notices to reflect the changes made by the Act, which are available on the DOL Web site by accessing the following link: http://www.dol.gov/ebsa/cobramodelnotice.html.

On January 11, 2010, an updated fact sheet, FAQs for employees, and posters and flyers for the provisions extending the ARRA premium reduction in the Act, which are available on the DOL Web site by accessing the following links:
http://www.dol.gov/ebsa/newsroom/fsCOBRApremiumreduction.html
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html
http://www.dol.gov/ebsa/pdf/joblossposter2.pdf
http://www.dol.gov/ebsa/pdf/cobrastimulusflyer2.pdf
http://www.dol.gov/ebsa/pdf/cobrastimulusflyer1.pdf
http://www.dol.gov/ebsa/pdf/distributionflyer09.pdf

For more information, please contact Joan A. Disler, at(973) 642-1900 or jdisler@ebglaw.com, or Ray Kaplan, at (973) 642-1900 or rkaplan@ebglaw.com.

UPDATE - COBRA Subsidy: DOL Issues Updated Model COBRA Notices and Other Guidance

Sat, 27 Feb 2010 18:32:42 GMT

The following EBG Client Alert should be of interest to all Florida employers

by Joan A. Disler and Ray Kaplan

On February 17, 2010, an updated Application for Expedited Review of Denial of COBRA Premium Reduction for the amendments to ARRA under the Act, which is available on the DOL Web site by accessing the following link: http://www.dol.gov/ebsa/COBRA/main.html.

On January 13, 2010, updated model COBRA notices to reflect the changes made by the Act, which are available on the DOL Web site by accessing the following link: http://www.dol.gov/ebsa/cobramodelnotice.html.

On January 11, 2010, an updated fact sheet, FAQs for employees, and posters and flyers for the provisions extending the ARRA premium reduction in the Act, which are available on the DOL Web site by accessing the following links:
http://www.dol.gov/ebsa/newsroom/fsCOBRApremiumreduction.html
http://www.dol.gov/ebsa/faqs/faq-cobra-premiumreductionEE.html
http://www.dol.gov/ebsa/pdf/joblossposter2.pdf
http://www.dol.gov/ebsa/pdf/cobrastimulusflyer2.pdf
http://www.dol.gov/ebsa/pdf/cobrastimulusflyer1.pdf
http://www.dol.gov/ebsa/pdf/distributionflyer09.pdf

For more information, please contact Joan A. Disler, at(973) 642-1900 or jdisler@ebglaw.com, or Ray Kaplan, at (973) 642-1900 or rkaplan@ebglaw.com.

Major Changes in Landscape of H-1B Visa Usage Results from USCIS Memorandum

Thu, 25 Feb 2010 23:45:01 GMT

The USCIS had mandated sweeping changes in the use of H-1B visas, redefining the employer-employee relationship for third-party worksite placements pursuant to H-1B petitions, among other things. The changes, which have alarmed many employers, came in memorandum from the agency’s Associate Director of Service Center Operations, Donald Neufeld, this past January.

Although the “Neufeld Memo” arguably targets consulting companies which place professionals at third-party worksites, it also has a significant impact on U.S. employers who supplement their full time workforces with teams of both talented U.S. and foreign workers, considered consultants. In a recession, these consultants make up a significant portion of corporate workforces and are vital to many companies’ continued viability.

If fully implemented, the Neufeld Memo could result in denials of amendments and extensions of status for current H-1B visa holders. In addition, H-1B workers travelling internationally may face re-adjudication and denial of admission by Immigration officials at U.S. ports of entry. Lastly, this could result in potential revocations of status for H-1B visa holders should the USCIS conduct workplace site visits.

While challenges to the Neufeld Memo are mounted and considered, we will continue to guide clients on how to enhance chances of securing H-1B visa approvals under the Memo rule.

Immigration court in TN can't keep up with caseload

mario@mrvisa.com (Mario Ramos) — Wed, 24 Feb 2010 16:11:32 GMT

By Janell Ross • THE TENNESSEAN • February 24, 2010 "Mario Ramos had heard stories. But last month, he finally saw for himself. “It really looked like there were 1,000 people in that ICE line,” said Ramos, a Nashville immigration...

By Janell Ross • THE TENNESSEAN • February 24, 2010

"Mario Ramos had heard stories. But last month, he finally saw for himself.

“It really looked like there were 1,000 people in that ICE line,” said Ramos, a Nashville immigration lawyer. “And those are just the people in Nashville who are on the wait list for an immigration court
date to be set.”

The immigration court has such a heavy caseload that hundreds of people recommended for deportation haven’t even been given a court date yet. They line up monthly at local immigration offices, where suspected illegal immigrants are asked to check in until a court date can be set.

After three years of stepped-up immigration enforcement, the overloaded court system isn’t keeping pace — and observers say almost nowhere in the country is the problem worse than in
Tennessee.

The Memphis-based immigration court — which handles most immigration matters in Tennessee, Arkansas, Kentucky and the northern half of
Mississippi — has one of the nation’s highest caseloads per judge. In 2008, the most recent year for which data are available, Memphis had only two judges to handle about 3,500 pending cases.

About four weeks ago, the situation in Memphis went from busy to something worse. One of the judges was reassigned to Arlington, Va. Now, while there is a judge in one Memphis courtroom, cases
assigned to the other are heard by a constantly rotating cast of judges around the country via video conference.

Less than two full months into 2010, just about any hearing requested is scheduled in 2011.

Family waits and hopes

Jose Resendiz is an illegal immigrant from Mexico with a story that highlights the problems in Tennessee and the need for real immigration reform, said his wife, Christy Resendiz.

He has lived in a state of limbo since his arrest in 2008.

Christy, a U.S. citizen, and Jose, a Mexican national, live with their two children in Greenback, Tenn., about 45 minutes from Knoxville. The couple married in July 2003 and started trying to adjust Jose’s legal status almost right away, Christy said. They expected it to be straightforward, since Jose had married an American citizen, but an ill-timed trip back to Mexico derailed the process...".

at; http://www.tennessean.com/article/20100224/NEWS03/100223128/2066

Why we need immigration reform; DEA supervisor exposes cover-up of U.S. agents' role in mass murder in Mexico

mario@mrvisa.com (Mario Ramos) — Tue, 16 Feb 2010 15:18:30 GMT

"April 1, 2005—DEA supervisor Sandalio Gonzalez hit a nerve when he fired off a letter in February 2005 to U.S. Immigration and Customs Enforcement (ICE) officials in El Paso, Texas. Gonzalez' letter blew the whistle on the alleged cover-up of...

"April 1, 2005—DEA supervisor Sandalio Gonzalez hit a nerve when he fired off a letter in February 2005 to U.S. Immigration and Customs Enforcement (ICE) officials in El Paso, Texas.

Gonzalez' letter blew the whistle on the alleged cover-up of ICE agents' complicity in multiple murders in the Mexican border town of Ciudad Juárez. The homicides were tied to an investigation into Heriberto Santillan-Tabares, who U.S. prosecutors claim is a top lieutenant in Vicente Carrillo Fuentes' Juárez drug organization.

Santillan has been charged with cocaine and marijuana smuggling along with five counts of murder—a crime that can get him a death sentence in the U.S. justice system. His case is currently pending in federal district court in San Antonio, Texas, and is slated for trial in May.

A confidential informant, who allegedly had attained high standing within the Juárez organization, played a critical role in snaring Santillan. The informant's name is Jesus Contreras, who is also known by the nickname "Lalo."

Between August 2003 and mid-January 2004, a dozen people were tortured, murdered and then buried in the yard of a house in the Mexican border town of Ciudad Juárez. Contreras, according to sources, participated in many of those murders."...

at http://onlinejournal.org/Special_Reports/040105Conroy/040105conroy.html

Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry

Fri, 12 Feb 2010 18:39:22 GMT

Copyright 2010 American Health Lawyers Association, Washington, DC.
Reprint permission granted.
Further reprint requests should be directed to
American Health Lawyers Association
1025 Connecticut Avenue, NW, Suite 600
Washington, DC 20036
(202) 833-1100
For more information on Health Lawyers content, visit: http://www.healthlawyers.org.

Hector A. Chichoni, Esquire

Robert S. Groban, Jr., Esquire

Frederick Warren Strasser, Esquire

Epstein Becker & Green PC

New York, NY, and Miami, FL

Introduction

As the current debate over healthcare reform has dominated the headlines, the business of running America’s healthcare institutions has never been more challenging. Healthcare executives are being forced to navigate their institutions through the most difficult economic and regulatory environment in recent history. In this article, we hope to ease that management burden by identifying an area of regulatory exposure—immigration compliance and worksite enforcement—that many healthcare executives may overlook as they struggle to address all of their other operational needs. The additional regulatory exposure from inadequate immigration compliance becomes even more critical when you consider the healthcare workforce’s sheer size. The U.S. Department of Labor (DOL) identifies the healthcare industry as the country’s largest employer, accounting for more than fourteen million jobs annually.1 The DOL also estimates that the healthcare industry will add another three million new jobs from 2006-2016, more than any other industry. Managing a diverse healthcare workforce has never been simple given the unique way in which most hospitals and other healthcare institutions function. Unions, medical practices within hospitals, independent contractors, and third-party contractors can be found in nearly every large healthcare organization, along with a complex matrix of professional, quasi-professional, and non-professional employees that must be recruited, trained, and managed in a manner that comports not only with labor and employment laws, but also with regulatory requirements, licensing, and union agreements. Amid this vortex of legal obligations, it is easy to overlook the increasingly important legal responsibility of Form I-9 compliance. 2 As recent actions by the administrations former President George Bush and President Barack Obama demonstrate, however, the failure to address immigration compliance can have serious civil and criminal consequences to the organization, as well as its employees and senior management.

IRCA and Worksite Enforcement

When Congress passed the Immigration Reform and Control Act of 1986 (IRCA),3 it made it unlawful for employers to hire or retain undocumented workers and established a process, the Form I-9 process, that required employers to verify the identity and employment eligibility of all workers hired on or after November 6, 1986.4 In the twenty years following IRCA’s enactment, the Immigration and Naturalization Service and, later, its successor, Immigration and Customs Enforcement (ICE), targeted egregious violators and deported illegal workers— but levied few significant civil or criminal penalties against employers. When larger organizations were involved, the fines tended to be so minimal that they were not really considered a “serious” compliance issue. The regulatory calculus surrounding worksite enforcement changed radically following the September 11, 2001, terrorist attacks. This precipitated creation of the U.S. Department of Homeland Security (DHS) and led to substantially increased funding for worksite enforcement and border security. 5 Later, the Bush Administration’s support for comprehensive immigration reform created such a hostile public environment against undocumented workers that worksite enforcement, coupled with enhanced border security, were seen as essential prerequisites to any meaningful dialogue on how to fix the country’s broken immigration system. The result was an unprecedented number of public enforcement actions by the Bush Administration that focused primarily on rounding up illegal workers, not penalizing their employers. 6 The Obama Administration has pursued a different approach toward worksite enforcement and expanded its efforts beyond Form I-9 compliance to include H-1B fraud, 7 wage and hour complaints, compliance with the Public Access File requirements of the H-1B program,8 overall immigration fraud, and other areas where legal immigration and employment issues may intersect. As DHS Secretary Janet Napolitano noted, “DHS is focused on smart, tough and effective enforcement of the laws we currently have.” 9

The Vulnerability of Healthcare Employers to Worksite Enforcement Actions

The healthcare industry is not immune from regulatory scrutiny. Given the size and diversity of its workforce and increased union activity, the likelihood that healthcare employers will become targets for worksite enforcement actions seems apparent. This means that healthcare organizations need to identify the critical components of immigration compliance and then develop and incorporate more vigorous policies and procedures into their overall risk management program. Form I-9 completion and retention is the primary legal responsibility for most employers. Healthcare employers should have a uniform written policy for Form I-9 completion using only the form’s latest edition. 10 Such a policy is important to ensure that the organization not only confirms that all new employees are authorized to work, but also avoids discrimination claims that can arise when different Form I-9 completion procedures are used. 11 Under IRCA, an organization must retain its Form I-9 documentation for at least three years or one year following the employee’s termination—whichever is longer—and must make these forms available for inspection if requested by the DOL, DHS, or U.S. Office of the Special Counsel. An employer’s failure to properly complete and retain a Form I-9 provides the same basis for serious civil or criminal liability as if the form was never completed at all.

Under IRCA, an employer cannot use the Form I-9 process to screen candidates for employment. If a healthcare employer does not want to hire foreign nationals who require immigration sponsorship or have limited employment authorization, should it develop an employment application and interview process that will identify these candidates from the outset. 12 It should also implement an immigration employment policy which, among other things, defines the circumstances in which it will sponsor foreign nationals, if any. This policy should also make clear that the organization’s immigration sponsorship does not waive its employment at-will policies, guarantee success, or prohibit the organization from withdrawing its sponsorship for any reason or no reason at all. Such explicit language is particularly important in light of a decision like the Tenth Circuit’s ruling in DerKevorkian v. Lionbridge Technologies, Inc., 13 which held that an employer may have a fiduciary obligation to sponsor a foreign national in the absence of a specific policy. Proper completion of the Form I-9 process does not end an employer’s legal responsibility. Under IRCA, an employer who acquires “actual or constructive knowledge” that an employee does not have employment authorization can be subject to civil or criminal penalties. Such actual or constructive knowledge can arise in a variety of circumstances. For example, an employer would have reason to question the status of an employee who claims to be a permanent resident on his Form I-9—but then asks his manager for immigration sponsorship. Similarly, an organization that has information from a background check that contradicts the status claimed in the Form I-9 would also have constructive knowledge that the employee might be undocumented. Another common situation that might support a finding of constructive knowledge is the employer’s receipt of a “no-match” letter from the Social Security Administration (SSA). Prior to 2007, the SSA sent these letters to notify employers that the names and Social Security numbers (SSN) of certain employees did not match what the SSA had in its system. To ICE, an employer who fails to resolve this discrepancy has constructive knowledge that the subject employee(s) might be undocumented. 14 To the SSA, by contrast, these letters are simply correction requests issued to reduce the suspense fund and properly credit tax payments to the right employee. In this regard, the SSA neither has the authority to penalize employers that supply incorrect SSN information nor those that fail to respond to a no-match letter. While the SSA cannot share its no-match information with DHS under current law, the SSA can provide no-match information to the Internal Revenue Service, which does have the authority to investigate, audit, and ultimately fine the employer. 15 In 2007, the Bush Administration published a “safe harbor” rule that purported to establish a government-sanctioned procedure that employers could follow if they received a no-match letter. Those that followed this rule would receive safe harbor from criminal prosecution and protections against having constructive knowledge that an employee was not authorized to work. The rule was quickly challenged in federal court, which enjoined its implementation. 16 As part of this challenge, the SSA also voluntarily halted the issuance of new no-match letters until the litigation had concluded. On October 7, 2009, DHS rescinded its controversial no-match rule.17 ICE, however, still considers an employer’s receipt of and failure to address a no-match letter to be evidence of the knowing employment of an undocumented worker. With the rescission of the safe harbor rule, healthcare employers should be ready to receive new no-match letters from the SSA. Thus, they should have a policy in place for handling them as part of their overall immigration risk management practices. Of course, any employer who concludes that an employee does not have employment authorization must terminate that employee.

State Immigration Laws: The New Frontier

The failure of comprehensive immigration reform in August 2007 left the impression that the federal government was politically unable to deal with America’s immigration issues. Moreover, this legislative paralysis occurred as the 2008 presidential campaign was heating up and aspiring contenders lined up to demonstrate political toughness by proposing more rigorous measures addressing unlawful immigration. Colorado, the home of 2008 presidential candidate Representative Tom Tancredo (R), passed the first state legislation, which became effective on January 1, 2007. This law required all employers to sign a state affidavit verifying that their employees had work authorization and mandated that all state contractors use E-Verify, the federal government’s employment verification system. 18 Arizona, the home of Senator John McCain, the eventual Republican candidate for president, and former Arizona Governor and now DHS Secretary Janet Napolitano (D), promptly followed Colorado’s lead when it enacted even more stringent legislation in July 2007.19 Effective January 1, 2008, this law not only made it illegal to knowingly hire an undocumented worker, it also required all Arizona employers to utilize E-Verify or risk loss of their business license. 20 Colorado and Arizona initiated a growing trend of state legislation directed at the employment of undocumented workers. The June 2009 report of the National Council of State Legislatures found that forty-four states had passed 144 laws and 115 resolutions affecting foreign nationals and immigration. 21 While some see this as a positive step in controlling unauthorized employment, it has become a nightmare for employers who now must deal with a dizzying patchwork of federal and state laws and often conflicting compliance requirements. For larger healthcare organizations operating in multi-state arenas and varying jurisdictions, it simply ups the ante on ensuring compliance not only with federal immigration laws—but also with whatever laws now are imposed by individual states.

Immigration Risk Management: Best Practices

While the Obama Administration has shifted away from controversial worksite raids, it has made it clear that it intends to hold employers accountable for immigration law compliance. To emphasize this point, ICE issued more than 650 Notices of Inspection in July 2009 to employers in a wide range of industries suspected of Form I-9 and other serious worksite violations. 22 As the pressure for comprehensive immigration reform builds, the key to a more unified approach, especially in this difficult economy, remains strong worksite enforcement that penalizes employers who violate the law and employ undocumented workers. As a result, it is critically important for all employers in the healthcare industry to re-double their efforts and adopt policies that promote legal compliance and facilitate risk management. Healthcare employers looking for “best practices” may find assistance in the DHS’ ICE Mutual Agreement between Government and Employers (IMAGE) program. 23 Originally proposed in 2007, the IMAGE program has not attracted a large number of registrants, in large part because of its burdensome requirements. However, IMAGE does offer a set of “best hiring practices” that can serve as a model for developing policies and procedures that will better prevent potential worksite violations. 24 Not all best practices may be realistic for every employer. Nevertheless, the list provides a useful reference for organizations seeking to enhance their compliance efforts. It thus makes sense to review them in some detail.

E-Verify

ICE recommends that employers use the E-Verify program for all new hires. E-Verify allows registered users to better confirm the identity and employment authorization of new employees by running selected Form I-9 information through the DHS and SSA databases. Under federal law, it is a voluntary program, except for certain vendors who receive solicitations or contract awards under the Federal Acquisition Regulations. 25 Several states, however, require either employers or state contractors to use E-Verify.26 Based on recent pronouncements, it is clear that the Obama Administration is considering support for legislation that mandates that employers use E-Verify as a means of facilitating comprehensive immigration reform. Thus, employers in the healthcare industry should take a careful look at E-Verify so that they will be prepared to implement it in 2010 if necessary.

Form I-9 Training

ICE recommends that employers train all employees involved in the Form I-9 process and ensure that only trained employees participate in this process. The training should include the Form I-9 completion process, detection of fraudulent documents, and any other topics that relate to an employer’s particular circumstances.

ICE also recommends that employers provide annual updates on this training.

Form I-9 Audits

ICE recommends that employers conduct periodic Form I-9 audits and arrange for an annual audit by an external auditing firm or a specially trained employee not otherwise involved in the Form I-9 process.

Self-Reporting Procedure

ICE recommends that employers establish a self-reporting procedure for informing ICE of any violations, along with an employee tip line to report activity relating to the possible employment of undocumented workers.

No-Match Letter Process

ICE believes that there is a strong correlation between a no-match letter and the employment of an undocumented worker. For this reason, ICE recommends that all employers establish a procedure for responding to these letters.

Contractors/Subcontractors

ICE recommends that organizations establish a process for ensuring that all contractors and subcontractors adhere to procedures that protect against the employment of undocumented workers. This has become an important component of any compliance program since Wal-Mart was fined $11 million in 2007 for using cleaning contractors that employed undocumented workers. 27 It is also important to protect employers from unwitting violations of the L-1B and H-1B Reform Acts. 28

Unlawful Discrimination

IRCA prohibits unlawful discrimination in the Form I-9 process. ICE recommends that employers establish and maintain safeguards against unlawful discrimination when completing and maintaining Form I-9 documentation. This can consist of clear policies and procedures that define how the Form I-9 process must be handled, together with training on how to avoid not only unlawful discrimination, but also unfair immigration-related employment practices in the Form I-9 completion process.

The DHS IMAGE program is not for every organization. Indeed, we do not recommend it unless an organization has had a history of immigration-related compliance problems. DHS best practices do, however, provide useful recommendations for all organizations that are interested in controlling potential immigration violations as an element of their overall risk management program.

Risk managers should review these practices and others that might better fit their organizations, and use them as a resource for developing strong policies that ensure legal compliance, promote consistency, and prevent fraud in the temporary worker and permanent resident processes. 29 We advocate developing a comprehensive immigration policy that not only addresses recruitment, sponsorship, and termination of foreign national employees, but also recognizes that immigration compliance has become an important component of risk management. Implementing such a strong, comprehensive immigration policy will go a long way toward reducing the possibility of significant organizational liability.

Mr. Groban is a member of Epstein Becker & Green PC (EBG) and the chair of its Immigration Law Group (ILG). He has been selected as one of the Best Lawyers in America for Immigration by his peers, as a New York Super Lawyer for Immigration by the New York Super Lawyers-Metro Edition magazine 2009, and as a “Leader in the Immigration Field” by the editors of Chambers USA 2009. Mr. Groban has more than twenty-five years of experience advising clients on how to employ foreign nationals and develop appropriate risk management policies, as well as representing them in worksite enforcement and other immigration-related civil and criminal litigation. Prior to joining EBG, Mr. Groban served as a special assistant U.S. attorney in the United States Attorney’s Office for the Southern District of New York from 1976-81, and handled a variety of civil, criminal, immigration, and Nazi War Criminal cases at both the trial and appellate levels. Mr. Groban received a Special Achievement Award from the Executive Office of the United States Attorneys for his sustained superior performance in the trial and subsequent appeals of Bell v. Wolfish, 441 U.S. 520 (1979).

Mr. Chichoni chairs EBG’s South Region Immigration Practice and practices U.S. and global immigration law. He has represented a vast number of corporate and individual clients throughout his legal career, ranging from premier U.S. healthcare organizations to Fortune 100 and Fortune 500 companies. He currently serves as immigration counsel to several major healthcare organizations including two of the largest children’s hospitals in the United States. He also regularly serves as lead counsel for immigration and employment verification issues during ICE audits, large acquisitions, mergers, and corporate reorganizations. Mr. Chichoni is a frequent author, legal presenter, and lecturer.

Mr. Strasser is a senior counsel in the ILG at EBG and practices out of the firm’s New York office. Mr. Strasser advises clients on complicated issues regarding nonimmigrant work visas and permanent resident applications, obtaining visas at foreign consulates and securing work permits for employment outside the United States. He counsels clients on many types of compliance matters, such as Form I-9 documentation, Labor Condition Application requirements, and Export Control Regulations (e.g., BIS, ITAR, OFAC). Mr. Strasser has served as a member of the Immigration and International Law Committees of the Association of the Bar of the City of New York and currently serves as the Acting President of the Central Jersey Shore Chapter of the Federal Bar Association. Mr. Strasser served as a law clerk for the U.S. Attorney’s Office for the Eastern District of New York, where he worked in the General Crimes Unit and contributed research to Dividing Lines: The Politics of Immigration Control in America by Professor Daniel Tichenor of Rutgers University. He has lectured at seminars in New Jersey, New York, and Puerto Rico on the use of technology in immigration law.

1 Bureau of Labor Statistics, see www.bls.gov/oco/cg/cgs035.htm.

2 The Form I-9 is the form that employers must use to verify the identity and authorization to work of all new employees. Employers who fail to complete the Form I-9 properly are subject to civil and criminal penalties. 8 U.S.C. § 1324a.

3 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (codified at 8 U.S.C.

§ 1324a).

4 See www.uscis.gov/propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a0 78a9fbfbc379. In addition to the Form I-9 requirement, IRCA also increased protections for workers by prohibiting discrimination on the basis of an employee’s or prospective employee’s citizenship or national origin.

5 The DHS now includes United States Citizenship and Immigration Services (USCIS), United States Customs and Border Protection (CBP), and United States Immigration and Customs Enforcement (ICE). The actions of these three agencies were previously administered by the Immigration and Naturalization Service, formerly an arm of the United States Department of Justice.

6 In December 2006, for example, ICE agents raided the operations of Swift & Co. in six states, resulting in the arrest of 1,297 illegal workers. No criminal charges or civil penalties were ever levied against Swift & Co. In 2008, a union official and human resources employee of Swift & Co. were convicted of harboring illegal aliens. See www.ice.gov/pi/nr/0808/080808desmoines.htm.

7 The H-1B is a nonimmigrant (temporary) visa classification that allows employers to hire foreign nationals in professional specialty occupations. A September 2008 study by the USCIS found that approximately 25% of the cases reviewed contained an error or material misrepresentation. See USCIS, H-1B Benefit Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/files/nativedocuments/H-1B_BFCA_20sep08.pdf. As a result, the USCIS has escalated its investigations of employers filing H-1B petitions.

8 Employers who file an H-1B petition so that they can hire a foreign national employee must maintain a Public Access File, which contains pertinent documents from the H-1B process for public inspection on twenty-four hours notice. See 8 U.S.C. § 1182(n)((1).

9 Testimony of Secretary Napolitano before the Senate Judiciary Committee, “Oversight of the Department of Homeland Security,” May 6, 2009, available at www.dhs.gov/ynews/testimony/testimony_1241706742872.shtm.

10 The current Form I-9 has a revision date of August 7, 2009, and is available at www.uscis.gov/i-9.

11 Discrimination claims under IRCA can take many forms. They can be based on the fact that the employer implements the Form I-9 process differently for different employees. They can also result when an employer asks an employee to produce specific documents, or more or different documents, than IRCA allows.

12 This policy should also identify applicants who are “protected” under IRCA and who thus cannot be refused employment on the ground that their employment authorization is temporary, such as asylees and refugees. See 8 U.S.C. § 1324a. Acceptable pre-employment questions include: “Are you authorized to work in the United states without restriction?” and “Do you now or will you in the future require immigration sponsorship?”

13 No-07-1125, 2008 WL 5077720 (10^th Cir. Dec. 3, 2008).

14 This is not the position taken by the SSA. It issues no-match letters so that it can properly credit Social Security taxes to the proper employee’s account. At present, the SSA maintains a suspense fund with more than $300 billion in 17 unaccounted tax payments. It costs the SSA to administer this suspense fund and deprives the actual employee of rightful tax payments. The SSA began issuing no-match letters solely as an effort to resolve these problems. Indeed, the typical letter indicates that it is not and should not be construed to be evidence that the subject employees are not authorized to work.

15 The IRS can fine employers $50 for each W-2 Form filed with an incorrect SSN. The maximum an employer can be fined is $250,000 per year, or $100,000 per year for smaller employers with gross receipts of less than $5 million. If the IRS determines that these failures resulted from an employer’s intentional disregard of the information-reporting requirements, the penalty is $100 per return or 10% of the amount to be reported correctly, with no annual limit. IRS can also institute its own criminal investigation. See 26 C.F.R. § 31.

16 American Fed. of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007).

17 See 74 Fed. Reg. 51447 (Oct. 7, 2009).

18 Colorado House Bill 1343; Colorado Rev. Stat. Art. 8-17.5-101,102.

19 Arizona House Bill 2279, available at www.azleg.gov/legtext/48leg/1r/bills/ hb2779c.pdf.

20 The constitutionality of the Arizona legislation was upheld against a constitutional challenge by the Ninth Circuit in Chicanos Por la Causa, Inc. v. Napolitano, 544 F. 3d 976 (9^th Cir. 2008), petition for cert. filed, 78 U.S.L.W. 3065 (U.S. July 24, 2009)(No. 09-115).

21 See www.ncsl.org/Default.aspx?TabID=756&tabs=951,119,851#951.

22 See www.ice.gov/pi/nr/0907/090701washington.htm.

23 As part of IMAGE, ICE, and USCIS will provide education and training on proper hiring procedures, fraudulent document detection, anti-discrimination procedures, and use of the E-Verify employment eligibility verification program. Voluntary participation in IMAGE also gives ICE unprecedented access to an employer’s hiring and compliance procedures. See www.ice.gov/partners/opaimage/index.htm.

24 See www.ice.gov/partners/opaimage/index.htm.

25 Exec. Order No. 13,465, 73 Fed. Reg. 67651-01 (Nov. 14, 2008).

26 See Arizona House Bill 2279 and Colorado House Bill 1343.

27 Wal-Mart settled the action without charges being filed and was subject to an unpublished consent order. See www.foxnews.com/story/ 0,2933,150846,00.html.

28 The H-1B Reform Act prohibits certain contractors from placing H-1B workers on the client’s premises if this would displace an American worker. Consolidated Appropriations Act, 2005, Subtitle B, § 421-430, “H-1B Visa Reform Act of 2004.” Pub L. No. 108-156, 117 Stat. 1944 (Dec. 3, 2003). To demonstrate non-displacement, the contractor must first secure a statement from the client that no U.S. worker will be displaced by the H-1B assignment. Id. Many managers close with these contractors sign these statements without any idea of why they are requested or what they mean. The L-1B Reform Act prohibits contractors from placing L-1B workers at a client’s site unless they will use the specialized knowledge of their employer’s operations that was the basis for visa issuance. Consolidated Appropriations Act, 2005, Subtitle B, § 411-417, “L-1 Visa (Intracompany Transferee) Reform Act of 2004.” Id. In our experience, most employers do not have effective risk management policies in place to identify and prevent possible violations of these laws. See www.uscis.gov/ propub/ProPubVAP.jsp?dockey=2b289cf41dd6b70a61a078a9fbfbc379.

29 The DOL, USCIS, and Congress all suspect that there is extensive fraud in the H-1B and labor certification process, the latter of which being the first step in most permanent resident applications. U.S. Citizenship and Immigration Services, H-1B Fraud & Compliance Assessment, Sept. 2008, available at www.uscis.gov/ files/nativedocuments/H-1B_BFCA_20sep08.pdf. To help identify and address this unlawful activity, the DOL has recently developed and implemented the “ICERT” process that requires all labor condition applications (H-1B) and labor certification applications (permanent residence) to be filed online. ICERT allows the DOL to verify the existence of the employer and any variations in job descriptions that might be used improperly to enhance the prospects for approval. See http://icert.doleta.gov/. The USCIS recently started conducting unannounced on-site investigations of H-1B employers to confirm that the information supplied by the employer is accurate. Violators can be fined, debarred from the H-1B and labor certification programs, or prosecuted criminally for knowing and willful violations. These additional enforcement developments also counsel in favor of developing strong risk management policies in the immigration area.

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Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry

Fri, 12 Feb 2010 18:39:22 GMT

Hector A. Chichoni, Esquire

Robert S. Groban, Jr., Esquire

Frederick Warren Strasser, Esquire

Epstein Becker & Green PC

New York, NY, and Miami, FL

Introduction

IRCA and Worksite Enforcement

The Vulnerability of Healthcare Employers to Worksite Enforcement Actions

State Immigration Laws: The New Frontier

Immigration Risk Management: Best Practices

E-Verify

Form I-9 Training

ICE also recommends that employers provide annual updates on this training.

Form I-9 Audits

Self-Reporting Procedure

No-Match Letter Process

Contractors/Subcontractors

Unlawful Discrimination

1 Bureau of Labor Statistics, see www.bls.gov/oco/cg/cgs035.htm.

3 Pub. L. No. 99-603, 100 Stat. 3359 (Nov. 6, 1986) (codified at 8 U.S.C.

§ 1324a).

10 The current Form I-9 has a revision date of August 7, 2009, and is available at www.uscis.gov/i-9.

13 No-07-1125, 2008 WL 5077720 (10^th Cir. Dec. 3, 2008).

16 American Fed. of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007).

17 See 74 Fed. Reg. 51447 (Oct. 7, 2009).

18 Colorado House Bill 1343; Colorado Rev. Stat. Art. 8-17.5-101,102.

19 Arizona House Bill 2279, available at www.azleg.gov/legtext/48leg/1r/bills/ hb2779c.pdf.

21 See www.ncsl.org/Default.aspx?TabID=756&tabs=951,119,851#951.

22 See www.ice.gov/pi/nr/0907/090701washington.htm.

24 See www.ice.gov/partners/opaimage/index.htm.

25 Exec. Order No. 13,465, 73 Fed. Reg. 67651-01 (Nov. 14, 2008).

26 See Arizona House Bill 2279 and Colorado House Bill 1343.

27 Wal-Mart settled the action without charges being filed and was subject to an unpublished consent order. See www.foxnews.com/story/ 0,2933,150846,00.html.

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Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry

Form I-9 Training

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Immigration Compliance and Worksite Enforcement: A New Risk Management Concern for Employers in the Healthcare Industry

Form I-9 Training

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