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| (c) Law Office of Bonnie Stern Wasser |
Fall Edition 2007 |
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Greetings,
Things keep changing rapidly in immigration law. I can't seem to write this newsletter fast enough without there being changes as I write it. If you would like me to cover specific topics in future issues, please let me know.
The US Congress failed to pass Comprehensive Immigration Reform legislation this past spring so the status quo of a broken legal system and millions of undocumented immigrants in the US continues. In a cloture vote to avoid debate, the Senate failed to pass the DREAM Act which would have provided a path to citizenship for young immigrants brought to the country illegally by their parents when they were small children. If they went to college or joined the military, they could be on a six year track to citizenship. Instead, the Senate chose to deny ambitious students the chance to better themselves. The DREAM Act could resurface later as it has had strong bi-partisan support over the years. The anti-immigrant rhetoric of "no amnesty for law breakers" has been fervent and well organized. In meetings with Congressional staff, I heard that anti-immigrant protestors contacted Congress at a rate of 10:1 against reform legislation. Consequently, any new major immigration reforms are unlikely to be enacted until well after the new White House administration and a new Congress take office.
Nonetheless, Congress is taking up a number of issues on a piecemeal basis during their lame duck session. A few bills have support on both sides of the aisle such as agricultural worker visas (which the Senate may vote on this week in The Farm, Nutrition, and Bioenergy Act of 2007 or Farm Bill (H.R. 2419 as an amendment (S. 340 and H.R. 371)). But increasing the H-1B professional worker and H-2A seasonal worker visa caps looks dim despite Microsoft and other US companies opening up offices in Vancouver, B.C. and abroad. Meanwhile, the European Union is developing a "blue card" to attract highly skilled global talent. One proposal to impose an additional $3500 fee or tax on the already exorbitant filing fees for H-1Bs was just defeated.
One thing is very clear though. Enforcement-only legislation will continue to be enacted. The Department of Homeland Security (DHS) is focused on workplace enforcement using existing rules while Customs and Border Patrol (CBP) is enforcing documentary requirements at the border. Therefore, this issue of Immigration Law News looks at workplace issues for ALL employers and border requirements.
As always, please call me at (206)282-2279 if you have questions or would like more information.
Best Regards,
Bonnie Stern Wasser, Esq.
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WHAT EVERY EMPLOYER NEEDS TO KNOW ABOUT SOCIAL SECURITY NO-MATCH LETTERS
SSA Letters Are Not Issued Just to Employers with Immigrant Workers
Whenever the Social Security Administration (SSA) discovers that a social security number it receives for a particular employee does not match the name or the employer that provides it through payroll tax reporting, it issues to the employer a Social Security No-Match letter with language such as "[s]ome employee names and Social Security numbers that you reported on the Wage and Tax Statements (Forms W-2) for the year XYZ do not agree with our records....These records can determine if someone is entitled to Social Security retirement, disability and survivors benefits, and how much he or she can receive." See sample SSA letter. SSA says it has 255 million mismatched names and numbers in its Earnings Suspense files affecting US citizens and noncitizens alike. SSA gives several reasons that the numbers and names might not match: typographical errors in the number or the name; unreported name changes (e.g., through marriage, legal name changes or cultural naming conventions); errors on the W-2; or the name or number is false or assigned to someone else. SSA specifically PROHIBITS the employer from laying off, suspending, firing or discriminating against anyone on the no-match list. SSA provides suggested procedures for clearing up the discrepancy. There are no SSA administered criminal penalties associated with no-matches except in the case of fraud or identity theft. SSA is poised to issue another 144,000 no-match letters to employers affecting 8 million employees.
Meanwhile, just as EVERY employer must document on form W-2 the social security number for EVERY employee hired, US immigration laws require EVERY employer to document on Form I-9 the work permission status of EVERY employee hired since November 4, 1986 when the Immigration Reform and Control Act of 1986 (IRCA) was enacted. These forms must be kept on hand in case of an audit by the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE). Proper completion of Form I-9 for all employees is a good faith defense to a civil charge of "knowingly hiring unauthorized workers." There are fiscal penalties for an employer who 1) fails to properly complete and retain I-9s and for 2) knowingly hiring or continuing to hire unauthorized workers. The penalties range from minor paperwork civil fines to criminal penalties of stiff fines and/or jail time for a "pattern or practice" of knowingly hiring US workers.
In an attempt to reduce the availability of employer defenses for hiring unauthorized workers, DHS recently issued new regulations setting forth what action should be taken by employers when receiving SSA no-match letters in order to have a "safe harbor" defense to a charge of constructive knowledge for hiring an illegal worker. On October 10, 2007, a Federal District Court judge in San Francisco issued a preliminary injunction barring implementation of the DHS regulation. See AFL-CIO, et al. v. Chertoff. But, the story does not end there. Receiving SSA no-match letters can be the impetus for an employer to review its entire record-keeping system and to learn how to treat all employees equally.
Click here for more information on what employers should do if they receive a SSA no-match letter while the injunction is in effect.
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7 REASONS WHY EMPLOYERS SHOULD CONDUCT AN INTERNAL IMMIGRATION AUDIT
Be prepared for I-9, H-1B & PERM audits, workplace raids, SSA no-match letters, state and federal contracting, and/or mergers and acquisitions
An internal audit is one that the employer arranges with counsel to review paperwork, staff training and internal policies in advance of there being any government enforcement action. The purpose of an audit is to establish internal compliance, train key employees about how to prepare, document and retain regulatory paperwork, and to develop plans for response in case of audit or enforcement action. Similarly, engaging immigration counsel to conduct an internal audit during the due diligence process of a merger or acquisition can help to uncover potential liabilities or to strategize immigration status needs for target company employees. Finally, doing an internal audit is prudent before applying for state and federal contracts.
I-9 Audits
As noted in the preceding article, EVERY employer needs to complete I-9 forms for every employee hired after November 4, 1986. DHS/ICE has the right to audit employers' I-9 forms. Completion of the I-9s is a good faith defense to a charge of hiring unauthorized workers. While civil I-9 audits have been in decline over the years because ICE does not find them to be particularly cost-effective, ICE is conducting workplace raids that have the potential for criminal prosecution for related offenses such as identity theft, fraud, smuggling and trafficking in documents, goods or people. I-9s become a critical component of such enforcement action. While the numbers of criminal enforcement actions have been fairly low given the 12 million or so undocumented people living and working in the US, workplace raids can have significant impact on an employer and its workers regardless of status: public relations nightmares, fleeing or arrested workers and loss of work force, loss of productivity, split up families and related humanitarian issues, and expensive and protracted litigation. Moreover, employers need to know when, as the result of an audit, they are permitted to fire employees so as not to run afoul of anti-discrimination legislation which could lead to law suits by dismissed employees. Therefore, employers should consider hiring counsel to do an internal audit BEFORE ICE comes knocking on the door. See Form I-9. Beware, however, that DHS is about to change the form based on previously enacted rules and may come out with rule revisions next year.
H-1B Audits
The H-1B visa program allows employers to hire foreign workers temporarily who hold degrees in subjects related the the job where the occupation commonly requires a degree. This program is enforced in part by the US Department of Labor (DOL). The employer is required to prepare, post and maintain Labor Condition Applications (LCAs) which document the prevailing wage, the wage offered, and various attestations that the foreign worker will not be breaking a strike, and will receive benefits similar to US workers. The employer is required to have a public inspection file for all employees to view, and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker was paid the wage stated in the application. This is another area where it makes sense for employers of H-1B workers to hire counsel to review H-1B record keeping in case of an audit. In particular, Congress has asked for an investigation of contracting firms that use substantial numbers of the H-1B visas available. While H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. The consequences to an employer for improper record keeping can be back wages to the foreign worker, de-barment from the employer's participation in the H-1B program, and discrimination claims by US citizens and green card holders, among other penalties.
PERM Audits
PERM is the process by which a US employer sponsors a foreign worker for permanent residence following a very strict recruitment methodology administered by DOL called "labor certification". While PERM has become more of an automated process, employers can be audited based on certain automated triggers depending upon how application questions are answered, by random selection or specific industry investigations, or tips. Employers must be able to produce within a very limited time period all evidence of recruitment efforts, results of responses by candidates, documentation of business necessity for certain job requirements, and other business or recruitment information. Theoretically, employers should be documenting this information while their PERM applications are being developed and prior to filing PERM applications. But for employers who do not do this, hiring counsel to do an internal audit to make sure all paperwork is available upon a request from DOL is essential to continued participation in the program and successful approval of PERM applications.
Mergers and Acquisitions
When a company contemplates a merger or acquisition, business counsel is usually hired to analyze the liabilities of the target company, its financial status and viability. But often, mergers and acquisitions (M&A) counsel are trained in just business and finance issues and don't realize there may be immigration consequences for the employees they want to keep in the target company. Some foreign workers have a visa status that is employer-dependent. A change in employers or a change in employer ownership configurations or nationality can result in the need for a change or amendment to a visa category. Similarly, some immigrants can lose status altogether if the owners of the new company do not meet certain criteria. This is especially important for E and L visa holders. Many areas of immigration law are subject to "successor in interest" rules of which business M&A counsel may not be aware. Finally, including immigration counsel in this process can help to uncover potential I-9/unauthorized worker liabilities of the target company. Therefore, it is advisable to include immigration counsel during the due diligence process to review all personnel records of the target company for immigration issues, to review the corresponding ownership interests of the prospective new employer and future job duties of foreign workers once the M&A is complete.
Workplace Raids Due to Fugitives
There have been reports that ICE vans loiter outside workplaces when ICE is looking for people that have failed to report for deportation following a court order. This tends to invoke fear among employees who may work with the absconder. Often employers have no idea their employees have been ordered deported. Therefore, this is another reason in favor of conducting an internal audit. One person's problem can trigger an entire workforce raid.
Social Security No-Match Letters
As noted in the preceding article, receiving Social Security no-match letters might be a good time to consider an overall internal employee audit of your company, within the bounds of what Social Security and IRCA require.
State and Federal Contracting
Many federal agencies now require I-9 compliance in order to contract with the feds. This becomes a more difficult issue if your company works with subcontractors since there are specific subcontractor rules. Because Congress failed to pass comprehensive immigration reform, a component of which would have addressed employer liabilities, several states have now taken it upon themselves to require I-9 compliance and/or participation in the federal government's E-Verify program in order to contract. This raises a number of legal questions such as federal preemption over immigration law. Whether these state initiatives will withstand legal challenges remains to be seen. Nonetheless, in the interim, companies hoping to receive state contracts may be required to demonstrate I-9 compliance.
In sum, there are at least seven reasons why employers of all kinds of workers may benefit from internal audits before ICE or DOL come knocking or because of a contemplated change in ownership, or desire to contract with the government. This firm provides audit and training services.
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CRS REPORT ON IMMIGRANT INVESTORS
EB-5 Program important to US investors
A very interesting Congressional Research Service (CRS) Report looks at the economic impact of investor visas in the US. The report concludes that foreign investors in the EB-5 permanent residence program benefit American investors and entrepreneurs in US projects because foreign investor financing in limited partnerships can be easier and/or cheaper for US investors than qualifying for bank loans. The CRS report explores Congressional proposals to limit legal immigration at a time when the EB-5 program is finally picking up after years of declining applications. The report also examines the treaty trader/investor E-1/E-2 visa programs which are based on reciprocal trade and investment agreements and treaties between the US and many countries.
Modeled in part on the Canadian immigrant investor program, the EB-5 program was enacted in 1990 to encourage foreign investment in the US. 10,000 visas are available every year, but only a few hundred are approved annually. EB-5 status comes with a stiff price tag for immigrants ($500,000-$1,000,000), and some very restrictive rules on how immigrants can finance their contributions such as limitations on promissory notes, use of retained earnings, and the need for extensive documentation of the source of funds. But since 2005, the Department of Homeland Security (DHS) has been approving more regional pilot programs that foster larger, multi-investor, usually limited partnership projects, often in conjunction with state, regional or local economic development agencies. To date, there are now approximately 16 approved regional pilot projects around the country which allow foreign investors to allocate their required 10 new jobs indirectly through project-based economic models. By approving more projects that have multi-agency oversight, both US and foreign investors benefit and DHS sees less fraud which accounted for much of the restrictive view of EB-5 applications in the 1990s. Of course, the pilot project program is not the only way to gain EB-5 status. Indeed, it is scheduled to sunset in 2008 unless Congress renews it. It only covers 5000 of the available visas each year. Entrepreneurs can otherwise invest in their own businesses to qualify. For a list of approved regional projects, contact Bonnie Stern Wasser, Esq. at (206)282-2279. The entire CRS report can be found here.
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2009 DIVERSITY LOTTERY REGISTRATION OPEN OCT. 3 - DEC. 2
55,000 Visas Available October 1, 2009
The registration period for the 2009 Diversity Visa Lottery is open from October 3, 2007 until noon EST December 2, 2007 for visas that will be issued beginning October 1, 2008 through September 30, 2009. Persons born in the following countries are NOT eligible: Brazil, Canada, Mainland China, Columbia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, Russia, S. Korea, UK (excluding N. Ireland. However, people born in these countries may be eligible under cross-chargeability rules if spouses, parents or children qualify. Applicants may be residing in the US or abroad, but if they entered the US illegally, or have been out of status for six months or more they might need a waiver of the three- or one-year bar when seeking the visa at a US consulate abroad. Additionally, persons with criminal backgrounds, prior immigration violations, communicable diseases and other potential exclusion problems should seek legal counsel before making application. For more details about eligibility and procedures, see the US State Department's Visa Bulletin.
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IT'S TRAVEL SEASON: PLAN IN ADVANCE FOR PASSPORTS!
WHITI Air Travel Rules Effective Now; Land/Sea Transition Rules Effective Jan. 31, 2008
The Western Hemisphere Travel Initiative (WHITI) now requires US citizens and other travelers to and from the Americas (US, Canada, Mexico), the Caribbean, and Bermuda to have passports or other specific documents for air travel. Document requirements for travel by sea and land will have a transition phase beginning January 31, 2008 when proof of identity and citizenship will be required. Specific requirements can be found at the Customs and Border Patrol website. PLAN IN ADVANCE! The US and Canadian passport offices, in particular, have been inundated with passport applications. Delays are common even if you pay the extra fees for expedited handling.
A recent GAO report concluded that the State Department has been gouging Americans for passports. The basic fee is $97, $30 of which is to cover post office submissions, which the GAO found to be more than it actually costs for post office services. Expedited passports cost another $60. See passport applications for more information..
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FEE RECEIPT DELAYS
If we recently filed an application with USCIS for you, your employees or relatives and you haven't yet received a copy of the fee receipt from us, it is because USCIS is running approximately one month or more behind in their mail rooms due to unprecedented numbers of recent filings since June 2007. Receipt processing times are now posted on the USCIS website. As soon as they are received in this office, they will be forwarded to you.
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Firm News
Bonnie successfully obtained asylum for a young girl from Somalia who came to the US alone at the age of 13. All of her aunts, uncles and grandparents came to the US as refugees years ago and are US citizens. However, her family remained behind in a refugee camp in Kenya. The grounds for asylum sought were 1) past persecution because of political opinions imputed to her (her family home in Mogadishu was blown up by a rival clan at the start of the war in Somalia in 1990 just before the government of President Mohamed Siad Barre was overthrown; and 2) fear of future persecution based upon her membership in the social groups of a) her particular clan, the persecution of which the government cannot or will not prevent; b) young girls likely to be forced to have the most severe form of female genital mutilation (FGM) that there is, which is widely prevalent in Somalia; and c) young girls/unaccompanied minors with no family in Somalia returning from abroad who are likely to be kidnapped, put into forced slavery, sexually assaulted, or otherwise not protected by their clans if not married or if they refuse to have FGM. The US State Department's Annual Reports on Human Rights is particularly scathing about Somalia, though this was not the only evidence presented. This case was handled pro bono on referral from the Northwest Immigrants Rights Project. During the three years it took to get the case approved, the client transitioned from being a very shy, scared 13 year old, who suddenly found herself alone in a very strange land, to a strikingly beautiful, self-confident, English speaking, cell-phone chatting teenager on her school's debate team. She plans to become a lawyer. In a year, she can apply for permanent residence. Five years after that, she can apply for citizenship.
In other news, Bonnie is the new Chair of the Advocacy Committee of the Washington Chapter of the American Immigration Lawyers Association. This Committee is focused on media and community outreach. She will continue to serve on the Congressional Liaison, Consular, Customs and Border Patrol, and Continuing Legal Education Committees. Bonnie is available to speak to community, business and professional groups about immigration issues. In addition, business and community organizations wishing to establish coalition activities should contact her at (206)282-2279 or bonnie@bswasserlaw.com.
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