The H‑1B foreign workers program allows for the employment of foreign workers in specialty occupations, subject to certain requirements, including that the employer pay workers the higher of the wage rate paid to other employees with similar qualifications, or the local prevailing wage. The purpose behind this requirement is to help ensure that the wages of U.S. workers are not adversely affected.

The DOL investigation revealed willful violations of the law by PGCPS, resulting in $100,000 in civil penalties assessed along with a debarment period of two years. During the debarment period, PGCPS will be prohibited from filing new petitions for H-1B visas, requesting extensions, or making requests for permanent residency for workers under any employment-based visa program.

The DOL article can be found here.

The rule prohibits employers from accepting expired documents for employment verification purposes with no exceptions.  It also updates the list of documents that are acceptable for verification purposes to include the new U.S. passport card and foreign passports containing temporary Form I-551 (Permanent Resident Card) printed notations on certain immigrant visas, and removes older documents from the list such as Temporary Resident Cards and Employment Authorization Cards that are no longer issued by USCIS.  The rule also makes minor format changes to Form I-9.  The new form is available here.

It is worth noting that reverification of Form I-551 Permanent Resident Cards (or “green cards”) is not permitted, even when the document contains an expiration date.  As long as the document is not expired at the time of the initial employment verification, employers should not reverify.  Employees who are rehired may be subject to reverification.  Please refer to the Handbook for Employers issued by USCIS for more information.

A google search revealed that a “fusion center” is a terrorism prevention and response center operated by the Department of Homeland Security.  There appear to be no official reports of a labor-related “fusion center” having been opened.  The source of this information was apparently a release by a law firm in November 2010.  That report says that

Homeland Security Creates I-9 Audit Fusion Center

Soon, the Department of Homeland Security (DHS) will announce the creation of an I-9 Audit Fusion Center. This center will be staffed by approximately 20 forensic auditors who will assist local DHS offices executing I-9 audits for large employers. With the creation of this new center, employers can expect DHS to ramp up enforcement and conduct I-9 audits of larger employers. It is more important than ever for employers to ensure their I-9s are in good order, provide I-9 training for employees handling I-9 completion and compliance, and, for those larger employers, to ensure that there is a consistent company-wide policy in place for the treatment of I-9s and the increased possibility of an I-9 audit.

There is no source cited for this story, and the DHS website has no information to confirm this.  If DHS is, in fact, creating a fusion center to facilitate cooperation among the DOL Wage and Hour and the IRS, for example, this synergy would be very troubling news for employers.  The Obama Administration has dramatically increased the number of I-9 audits while decreasing the number of immigration raids.  Routine I-9 audits would have the potential to turn into a major inquisition by the federal government.  In addition, the privacy implications for employees would be extremely significant.  If DHS intends to open such a “fusion center,” one would hope that it would be announced publicly so that the merits of such an operation could be debated.

ICE Assistant Secretary John Morton stated, “We are increasing criminal and civil enforcement of immigration-related laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”  For example, ICE has more than quadrupled the amount of penalties that it has assessed against employers and dozens of businesses have been barred from working with the federal government. 

Employers should ensure that all I-9s and supporting documentation are properly completed and maintained.

ICE’s official site can be accessed here.  The ICE’s factsheet regarding NOIs can be accessed here.

Contributed by Laura Chaimowitz

According to a press release by the United States Attorney’s Office for the Eastern District of Virginia, Hi-Tech Trucking employed a workforce of both legal and illegal aliens from 2006 to 2009.  Federal investigators determined that Wang harbored and employed between six to 24 illegal aliens with Lu’s knowledge.  Wang and Lu also allegedly provided housing and meals for the illegal alien employees at three residences in Richmond, Virginia that were financed by Hi-Tech Trucking. 

Neil H. MacBride, United States Attorney for the Eastern District of Virginia, said, “We are committed to holding accountable employers who profit from illegal labor and have an unfair advantage over businesses that operate within the law.”

For an article with additional details, click here.

The proposed regulations had provided that an employer’s receipt of a “no match” letter from the SSA or DHS might be sufficient to constitute constructive knowledge of unauthorized employment.  The proposed regulations also gave guidance on a “safe harbor” for employers to avoid liability after receiving a “no match” letter.

Pending legislation on the issue has been referred to committee.

The Federal Register notice can be found here.  The summary states:

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of No-Match letters. DHS is amending its regulations as proposed on August 19, 2009, without change. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DATES:  This final rule is effective November 6, 2009.

(Hat tip to Workplace Prof Blog.)

Any company receiving bailout funds which seeks to file an H1-B petition must certify that it has in “good faith” attempted to hire a US worker but was unable to do so.  Additionally, companies seeking to fill a position with an H1-B worker must not have laid off any US worker in a similar position for 90 days either prior to or after the H1-B hire.  (Note that this restriction does not currently apply in a flow-down manner to companies that TARP recipients might hire for outsourced services.) 

Contributed by Robert R. Gillispie

The regulations are effective February 2, 2009, and the Federal Register section on the interim regulations can be found here.  More after the break.

UPDATED:  Please refer to our February 2, 2009, post regarding the effective date of these regulations being extended until April 2009.

Here is the revised list of acceptable employment authorization and identity documents from the interim regulation:

REVISED LIST OF ACCEPTABLE EMPLOYMENT AUTHORIZATION AND INDENTITY DOCUMENTS: Individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity. Only unexpired documents are acceptable. The identification number and expiration date (if any) of all documents must be noted in the appropriate space provided on the Form I-9. The following documents, so long as they appear to relate to the individual presenting the document, are acceptable to evidence both identity and employment authorization:

 United States passport;

 An Alien Registration Receipt Card or Permanent Resident Card (Form I-551);

 A foreign passport that contains a temporary I-551 stamp, or temporary I-551 printed notation on a machine-readable immigrant visa;

 An Employment Authorization Document that contains a photograph (Form I-766);

 In the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with a Form I-94 or Form I-94A bearing the same name as the passport and containing an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the Form;

 A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI.

 A Social Security account number card other than one that specifies on the face that the issuance of the card does not authorize employment in the United States;

 Certification of Birth issued by the Department of State, Form FS-545;

 Certification of Report of Birth issued by the Department of State, Form DS-1350;

 United States Citizen Identification Card, Form I-197;

 Identification card for use of resident citizen in the United States, Form I-179;

 An employment authorization document issued by the Department of Homeland Security.

 Form I-94 or I-94A indicating temporary evidence of permanent resident status. The individual indicates in section 1 of the Form I-9 that he or she is a lawful permanent resident and the individual:

• i. Presents the arrival portion of Form I-94 or Form I-94A with an unexpired foreign passport containing an unexpired “Temporary I-551″ stamp and a photograph of the individual, which is designated for purposes of this section as a receipt for Form I-551; and
• ii. Presents the Form I-551 by the expiration date of the “Temporary I-551″ stamp or, if the stamp or statement has no expiration date, within one year from the issuance date of the arrival portion of the Form I-94 or Form I-94A; or

 Form I-94 or I-94A indicating refugee status. The individual indicates in section 1 of the Form I-9 that he or she is an alien authorized to work and the individual:

• i. Presents the departure portion of Form I-94 or I-94A containing an unexpired refugee admission stamp, which is designated for purposes of this section as a receipt for the Form I-766, or a social security account number card that contains no employment restrictions; and
• ii. Presents, within 90 days of the hire or, in the case of reverification, the date employment authorization expires, either an unexpired Form I-766, or a social security account number card that contains no employment restrictions.

The effect of a debarment has 4 main consequences:

1. Company’s name is entered into the Excluded Parties List System (EPLS).

2. Company is prohibited from competing for new government contracts.

3. Debarment is effective government-wide.

4. Company must challenge the decision within 30 days.

To avoid such adverse consequences, government contractors must maintain a heightened awareness of regulations applicable to the hiring of foreign nationals as well as a system for accurately tracking the validity dates of all Employment Authorization Documents presented by employees. 

Contributed by Robert R. Gillispie 

The U.S. Citizenship and Immigration Services (USCIS) recently issued a new I-9 Form containing a revision date of “06/16/08″ at the lower right corner of the form and an expiration date of 06/30/09 at the upper right corner of the form.  There is no substantive change between the old I-9 Form and the new I-9 Form, the form simply bears a new revision and expiration date.

The I-9 Form contains a control number (the expiration date) used by the Office of Management and Budget (OMB) which must be in compliance with the Paperwork Reduction Act (PRA).   Technically, if the OMB uses an expired form, a person cannot be penalized for failing to comply with the expired form.  The previous I-9 Form was set to expire 6/30/08.  Thus, this new I-9 Form was necessary to ensure that the Department of Homeland Security could enforce sanctions for non-compliance.

The new version of the I-9 can be found at: www.uscis.gov/files/form/I-9.pdf.

Contributed by Alexis J. Alber.

The new rule is intended to eliminate any unfair advantage that might be received from filing multiple petitions on behalf of a single employee (i.e. to increase the chances of one of the petitions being randomly selected from the pool of petitions given the numerical cap on H1-B visas).  The USCIS noted that last year it found some 500 instances where a single individual had been named on multiple petitions.

The text of the USCIS announcement is as follows:

WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee.  These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions. 

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.   The interim final rule becomes effective upon publication in the Federal Register.

Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms.  The changes to the H-1B filing process under this rule are an important part of that initiative.

On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008.   For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers.  Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap.  Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap.  Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.

This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period.  If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit.  Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit. 

The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits.  Those filing fees will not be returned.