Category Archives: Immigration, Nationality & Consular Law

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Employment Authorization Issues Arising From Corporate Restructuring

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American business experienced a near record number of mergers and acquisitions in 2016, and this trend is likely to continue in 2017. Such corporate transactions raise a number of legal issues, including employment issues.  During its due diligence review, the buyer considers whether the seller’s workforce is covered by collective bargaining agreements, what benefits are … Continue reading this entry

Are You Using the New I-9 Form?

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As the Trump administration settles in, those of us who counsel employers have cautioned to “expect the unexpected.” Certainly, the last five weeks have brought a bevy of twists and turns. However, one consistent theme from the new administration has been a tough stance on immigration-related matters. Accordingly, employers must pay close attention to the … Continue reading this entry

DHS To Issue New I-9 Form After Recently Increasing Penalties For I-9 Violations

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Just when employers were becoming more comfortable with the complex and lengthy Form I-9, Employment Eligibility Verification that was issued in 2013, the federal government has decided to turn up the heat. First, the Department of Homeland Security (DHS) and the U.S. Department of Justice recently increased the penalties for I-9 violations. Second, DHS has announced that … Continue reading this entry

Potential Issues for Employers After Brexit (With No Clear Answers Yet)

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The voters in Great Britain caught the world off guard by voting to leave the European Union (EU) after over 40 years of membership. However, after the vote, the questions immediately started. Leaving the EU is governed by a treaty and terms of the “Brexit” will be negotiated between Great Britain and the EU in … Continue reading this entry

New USCIS Policy Decision Broadens Permissible Bases for Visa Transfer of Multinational Managers

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After four years of internal deliberations, U.S. Citizenship & Immigration Services (USCIS) recently issued a policy memorandum binding all USCIS personnel to follow the reasoning of a 2013 USCIS Administrative Appeals Office (AAO) decision. That AAO decision broadened the type of evidence a U.S. employer may cite in support of an L-1A intracompany transfer visa, … Continue reading this entry

DHS Extends Time Period for STEM OPT Employment Authorization

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As of May 2016, the Department of Homeland Security (DHS) has expanded the time period during which a foreign student with a degree from a U.S. university in a science, technology, engineering, or mathematics (STEM) field may work as a trainee. American companies sometimes struggle to fill specialty jobs requiring STEM degrees, and foreign students … Continue reading this entry

Hybrid Visa Offers Alternative to Limited H-1B Visa

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For an ever-increasing number of U.S. employers, the start of another calendar year also means H-1B season has arrived. However, given the competitive nature of the H-1B program, many employers are turning to an alternative and infrequently utilized hybrid visa, the “B-1 in lieu of H-1B,” to obtain professionals with specialized skills.… Continue reading this entry

High Fines Continue to Provide “Additional Motivation” for I-9 Compliance

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Although Immigration and Customs Enforcement (ICE) has recently eased off of its record pace for commencing new I-9 inspections, employers can take no comfort. ICE continues to use these inspections as a key enforcement tool to build a “culture of compliance” among employers, as shown by a recent decision issued by an administrative law judge (ALJ) … Continue reading this entry

An Employer Wins! BALCA Finds Crucial Inconsistency

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A recent decision by the Board of Alien Labor Certification Appeals (BALCA) illustrates just how draconian decision-making with regard to labor certification filings can be at the U.S. Department of Labor (DOL), and provides insight into the importance of filing labor certification appeals.… Continue reading this entry

New Social Security Card Application Requisites Raise Eyebrows

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On August 10, 2015, the Social Security Administration (SSA) adopted a final rule that, as of September 9, 2015, eliminates the requirement that applicants seeking to obtain a new or replacement Social Security number card submit “documentary evidence.” The Social Security number (SSN) is issued on a Social Security Card and consists of a nine-digit … Continue reading this entry

Employers Beware: If You Moved an H-1B Worker Without Advising USCIS, You Have Until August 19, 2015 to Make Amends

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A recent binding decision issued by the Administrative Appeals Office (AAO) has complicated even further the confusing rules governing employer obligations in the H-1B nonimmigrant visa program. Part of U.S. Citizenship and Immigration Services (USCIS), the AAO conducts administrative review of negative agency decisions on certain types of immigration benefits, including denials and revocations of nonimmigrant … Continue reading this entry

USCIS Acts to Eliminate Employment Disruption for Professional Workers

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Employers who seek to reduce disincentives that currently encourage H-1B non-immigrant employees to abandon adjustment to lawful permanent residence status will benefit from a new employment authorization rule announced on February 24, 2015, by U.S. Citizenship & Immigration Services (USCIS). The new rule, effective May 26, 2015, will allow the spouses of H-1B employees to … Continue reading this entry

DACA and DAPA and Form I-9, Oh My! Does Prior Document Fraud Require Termination?

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President Obama’s recent decision to take executive action on immigration may cause confusion for some employers with regard to Form I-9 compliance. The action includes two initiatives that potentially impact Form I-9 recordkeeping — enhancements to the Deferred Action for Childhood Arrivals (DACA) program and the creation of a similar program for parents of U.S. citizens … Continue reading this entry

Avoiding Fines by Starting the I-9 Process Early. Just Not Too Early…

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As we have noted in prior posts, Immigration and Customs Enforcement (“ICE”) has been aggressively pursuing I-9 inspections and imposing record fines (about $12.5 million per year) as part of its multi-year strategic plan. Employers should not turn a blind eye to this uptick in enforcement activity and would be wise to fight back by … Continue reading this entry

Approved H-1B? Get the Ball Rolling on Your Consular Application Now!

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Getting an H-1B nonimmigrant visa for new employment with a private employer in the United States has become an obstacle course that now even requires winning a lottery. The process has become so complicated that H-1B beneficiaries lucky enough to find a bona fide offer of employment, win the visa lottery, and actually have their case … Continue reading this entry

Hit With I-9 Violations? Put Them on ICE

Employers who seek administrative review of enforcement fines sought by Immigration Customs and Enforcement (“ICE”) related to U.S. Citizenship & Immigration Services (“USCIS”) Form I-9 violations may petition relief from such ICE allegations before the Office of the Chief Administrative Hearing Officer (OCAHO), a division of the U.S. Department of Justice. In previous years, the … Continue reading this entry

E-Verify: Enrollment Up, But DHS Is on the Prowl for Misuse

The United States Department of Homeland Security (“DHS”) has been very successful in increasing the number of employers that participate in the E-Verify program. As of late January 2014, over 500,000 employers are enrolled and approximately 1,500 employers enroll each week. E-Verify is DHS’s internet-based employment authorization verification program. Participating employers complete an E-Verify case … Continue reading this entry

B-1s Beware: You Can’t Work in the United States

It’s a growing problem. Current U.S. immigration law provides few options for foreign entrepreneurs who are keen on establishing start-up companies in the United States. Investments in the $500,000 to $1 million range may provide investors with immigration options under the EB-5 program. Some smaller investments may qualify for E-2 treaty investors visas, but this … Continue reading this entry

I-9 Documentation Continues to be at the Center of ICE Scrutiny

Immigration Customs and Enforcement (“ICE”), has recently launched a “silent raid” targeting over 1,000 U.S. employers suspected of hiring undocumented immigrants by notifying them that they must submit to a full audit of their I-9 compliance documentation. The so-called “silent raids” are the largest since July 2009, and highlight the government’s continued trend of sanctioning … Continue reading this entry

It’s All or Nothing With I-9s and Nothing Proves Costly

A Washington drywall company recently learned the hard way that a partially completed I-9 form is insufficient to avoid costly penalties. The company was fined over $280,000 by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) after ICE’s audit revealed that many of the employer’s I-9 forms were incomplete. The company appealed, arguing … Continue reading this entry

Trends in Fines Assessment for I-9 Paperwork Violations — OCAHO Update

A string of recent decisions issued by the U.S. Department of Justice’s Office of the Chief Hearing Officer (OCAHO) provides useful insight into current trends in determining the amount of fines that may imposed on employers for mistakes made on Form I-9, the document that must be completed to verify the identity and employment authorization … Continue reading this entry

E-Verify — Am I Required to Use It?

According to the U.S. Citizenship and Immigration Services (USCIS) Web site, “U.S. law requires companies to employ only individuals who may legally work in the United States — either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same … Continue reading this entry

DHS Clarifies Date for Mandatory Use of New Form I-9 – May 7, 2013

As stated in our March 18, 2013 Labor & Employment Law Perspectives, the Department of Homeland Security (DHS) has issued a new version of the Form I-9, Employment Eligibility Verification. In announcing the new I-9 Form, DHS stated that “after May 7, 2013,” employers must use the new I-9 Form in verifying employment eligibility as … Continue reading this entry

AAO Finds USCIS Impermissibly Redefines Showing of Specialized Knowledge

The Administrative Appeals Office of U.S. Citizenship & Immigration Services, otherwise known as the AAO, recently reversed a finding by U.S. Citizenship & Immigration Services (USCIS) that had denied approval of an L-1B intra-company specialized knowledge employment visa for a five-year, India-based employee of the company. L-1B intra-company employment visas are approved by USCIS where … Continue reading this entry