Category Archives: Immigration, Nationality & Consular Law

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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

New I-9 Goes to 9 (Pages, That Is)

On March 8, 2013, the Department of Homeland Security (DHS) issued a new version of the Form I-9, Employment Eligibility Verification. DHS is providing a 60-day transition period, and the new form is mandatory as of May 7, 2013. The new document is nine pages, with detailed instructions taking up six of those nine pages. … Continue reading this entry

Spring Is Coming and So Are the H-1Bs

Spring is around the corner and so is a new H-1B filing period. On Monday, April 1, 2013, United States Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security, will begin accepting new H-1B cases to count against the 2014 H-1B cap. H-1B is a temporary, work-authorized classification under which American … Continue reading this entry

ICE’s Attempt to Elicit Admission of Liability in Form I-9 Settlement Agreements Fails

Disputes between employers and U.S. Immigration and Customs Enforcement (ICE) are heard by the U.S. Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO), which rules on issues arising under the Immigration and Nationality Act (INA) such as the known hire and ongoing employment of foreign nationals who are not authorized to work … Continue reading this entry

Investment-Based Employment Visa Finds Judicial Support

The “E-2 Treaty Investor” employment visa classification was established by Congress to promote capital inflow by foreign investors and to create additional employment opportunities for U.S. citizens. Currently, the United States has reciprocal investment treaties with 81 countries that permit foreign nationals to acquire employment-related work visas if demonstrable investments are made in the United … Continue reading this entry

Employment Authorization: Ask, But Ask Carefully (Part 2)

As discussed on our Labor & Employment Law Perspectives Blog on March 12, 2012, it is a best practice to ask job applicants about their ability to work legally in the United States. While asking “are you authorized to work lawfully in the United States” is necessary, that question may not generate sufficient information. Some … Continue reading this entry

USCIS Extends Validity of Current Employment Eligibility Verification Form I-9 Past Its Stated Expiration Date

U.S. Citizenship and Immigration Services (USCIS) recently announced  that employers should continue using the current version of Employment Eligibility Verification Form I-9 even after the August 31, 2012 expiration date printed on the form.… Continue reading this entry

Renewed Hiring Trends Present Opportunities to Revisit Policies on Employment of U.S. Citizens and Foreign Nationals

The division of the U.S. Department of Justice dedicated to enforcing the anti-discrimination provisions of the Immigration & Nationality Act (INA), namely the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently announced settlement agreements with two large-based corporate employers arising from their alleged discrimination against employment-eligible foreign nationals. Collectively, the announced settlements … Continue reading this entry

The Employment Authorization Question: Ask, But Ask Carefully

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) (http://www.ice.gov/worksite/) continues to use worksite enforcement (such as I-9 inspections) as a tool to curb illegal immigration. Recognizing the importance of maintaining a legal workforce, most employers focus on the issue early by asking job applicants about work authorization. Asking this question on the employment … Continue reading this entry

Business Visa Update: New Validity Dates for L-1 Visas

The U.S. Department of State (DOS) recently issued a new regulation affecting employees who work in the United States on L-1 visas, also known as Multinational Intra-Company Transferee Visas. This visa category is available to foreign national employees of U.S. companies who have worked abroad for at least one year for a branch, parent, subsidiary, … Continue reading this entry

IMAGE: Are You Ready to Join?

As the government continues to focus on strengthening the tools it offers to help prevent the knowing hire of unauthorized workers, employers who are serious about workplace compliance may consider joining the U.S. Immigration and Customs Enforcement’s (ICE) IMAGE Program. The program will not be right for all employers, but it has some benefits discussed … Continue reading this entry

"You're Fired" Does Not End H-1B Employment

Making a Donald Trump “you’re fired” announcement may be sufficient to end the employment relationship with most employees, but not with those relying on H-1B employment authorization. As shown by Limanseto v. Ganze & Company, OALJ Case No. 2011-LCA-00005 (June 30, 2011), failing to take the additional steps required to complete a “bona fide H-1B … Continue reading this entry

Supreme Court Upholds Arizona Law Sanctioning Employers for Hiring Unauthorized Aliens

In Chamber of Commerce v. Whiting, the United States Supreme Court upheld a controversial Arizona law that imposes penalties against employers who knowingly hire illegal immigrants. The Court held that the federal Immigration Reform and Control Act (IRCA) did not preempt Arizona’s Legal Arizona Worker’s Act of 2007, which allows Arizona courts to suspend or revoke … Continue reading this entry

USCIS' VIBE of Your Company

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced  the implementation of a long anticipated information validation tool that USCIS will rely upon in its adjudication of employment-based visa petitions submitted by U.S. companies to the benefit of foreign national workers.… Continue reading this entry

Government Scrutiny of H-1B Employers' Workplace Practices Continues to Increase

As a recent decision by the Department of Labor’s Wage and Hour Division illustrates, employers of H-1B nonimmigrant workers continue to face intense scrutiny from government agencies. Under the H-1B program, employers may temporarily hire foreign workers in professional occupations if certain conditions are met, including paying H-1B workers the same wages as U.S. workers … Continue reading this entry

Ensuring Compliance When Storing I-9 Forms Electronically

In 2004, Congress passed a law allowing employers to obtain electronic signatures on and electronically store I-9 forms. The rules are codified and explained at http://www.justice.gov/eoir/vll/fedreg/2010_2011/fr22jul10.pdf. Employers now have the choice to store I-9 forms in hardcopy, electronically, or both. The law is designed to alleviate the burden of storing hardcopy I-9 forms and contains … Continue reading this entry