Top 12 Immigration Mistakes Employers Made in 2012 Presented by: Shanon R. Stevenson Phone: (404) 231-1400 Email: sstevenson@laborlawyers.com
H-1B VISAS Job Must Require for Entry: Bachelor s degree (or equivalent); Professional level position. Employer promises: Pay greater of actual or prevailing wage No adverse effect on working conditions No strike or lockout Provide notice to workers Create Public Access File
LAWFUL OR UNLAWFUL? Employer hires a foreign national for its IT department. Informs her that she will be responsible for paying the attorneys fees and government filing fees for obtaining an H-1B work visa. Lawful Unlawful
MISTAKE #1: Failing To Properly Pay H-1B Workers USDOL debarred a Washington IT consulting services company from participating in the H-1B program for two years. Assessed $405,175 in civil money penalties. Ordered payment of $983,039.12 in back wages for numerous H-1B violations, including willful failure to pay required wages by demanding workers pay H-1B government filing fees.
HOW EMPLOYERS CAN AVOID MISTAKE #1 Train at least two HR employees regarding H-1B regulations and other immigration-related regulations; Adopt a policy where all hiring managers must go through one contact in HR who is familiar with the H-1B regulations before a foreign national can be offered a job or moved to a different job within the company; Disseminate the policy; and Retain immigration counsel for the company do not rely on foreign workers providing their own attorneys.
LAWFUL OR UNLAWFUL? Employer sponsors foreign national for an H-1B. Does not have assignments for the H-1B worker. Because the H-1B worker did not perform any work for Employer, Employer does not pay the H-1B worker or inform USCIS that the worker is no longer needed. Lawful Unlawful
MISTAKE #2: Failing to Properly Notify USCIS of an H-1B Worker s Termination H-1B workers are entitled to back pay for the entire period of the H-1B approval where the company failed to promptly withdraw the H-1B with USCIS and pay for the reasonable cost of the H-1B worker's return transportation to his home country. July 2012 over $87,000 in back pay and interest awarded to two H-1B workers, and $1,033 awarded to one H-1B worker for travel costs to her last place of foreign residence.
HOW EMPLOYERS CAN AVOID MISTAKE #2: BONA FIDE TERMINATION (1) Notice to employee that the employment relationship has ended; (2) Notice to USCIS that the employment relationship has ended; (3) Revocation of the LCA; and (4) Payment for return transportation of H-1B worker back to his/her foreign residence if dismissed before the end of the H-1B period.
LAWFUL OR UNLAWFUL? President of company wants to sponsor his client s son from Russia for an H-1B work visa as an accountant. Company files an H-1B petition on his behalf and it is approved. However, there is no actual accounting position at company. He ends up working as a waiter at a restaurant owned by the President of the company. Lawful Unlawful
MISTAKE #3: Visa Fraud The head of a Los Angeles law firm was sentenced to 10 months in prison. Set up nearly a dozen shell companies in order to file at least 137 fraudulent employment-based visa petitions. 100 foreign national clients in exchange for payments of $6,000 to $50,000.
HOW EMPLOYERS CAN AVOID MISTAKE #3 Ensure that the sponsored foreign worker works for the entity listed on the visa petition; Ensure that the sponsored foreign worker works in the position and at the location listed on the visa petition; and Ensure that amended H-1B petitions are filed with USCIS for any material changes to the sponsored foreign worker s job duties.
DEEMED EXPORT CONTROLS The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) impose licensing requirements on the export, re-export, and in-country transfer of a wide variety of items that are controlled for national security, foreign policy, and other reasons. Requirements include an obligation for U.S. persons, including corporate employers, to seek and receive a U.S. Government license before releasing in the U.S. to foreign persons various types of technology controlled by these regulations. This obligation is referred to by the Commerce Department as the deemed export rule because releases of controlled technology to foreign persons in the U.S. are deemed to be an export to the person s country or countries of nationality.
LAWFUL OR UNLAWFUL? Production and development technology for vertical fiber placement machines and production technology for five axis milling machines released to Indian and Italian nationals on work visas. Lawful Unlawful
MISTAKE #4: Failing to Abide by the Deemed Export Rule February 2012 - $230k fine: Transfer of technology, manufacturing equipment, and technical data to non-us employee related to crime control items (remote monitoring equipment). $100k fine: Technology transfer of non-combat military vehicle manufacturing technical data to foreign manufacturing partners and non-us employee.
HOW EMPLOYERS CAN AVOID MISTAKE #4 Strong internal compliance plan/program. Conduct export control license determination for every foreign national hiring on H-1B, L-1 and O- 1 visa petitions. Establish Internal Quality Control process (License Submission). Full disclosure of nature and scope of technology transfer.
USDOJ DISCRIMINATION CHARGES Charges of Discrimination I-9 Violations Citizenship Status Immigration Status National Origin Retaliation E-Verify Violations
LAWFUL OR UNLAWFUL? Employer runs advertisements for job openings specifying that the position is only open to U.S. citizens. Lawful Unlawful
MISTAKE #5: Citizenship Status Discrimination USDOJ reached an agreement with a manufacturer of semiconductor structures and advanced solar cells based in Illinois. Allegations that the company violated the antidiscrimination provision of the Immigration and Nationality Act ( INA ), when it placed six online job postings that explicitly stated citizenship status preferences or requirements that excluded certain workauthorized non-citizens from consideration. The company will pay $12,000 in civil penalties.
HOW EMPLOYERS CAN AVOID MISTAKE #5 If you are going add any language to recruitment ads and do not want to sponsor foreign nationals for visas due to costs, do not specify status required: Unrestricted authorization to work in the U.S. required. Do not ask about specific immigration status until an offer is made.
LAWFUL OR UNLAWFUL? When employees identify themselves as Lawful Permanent Residents in Section 1 of the I-9, Employer requests copies of their permanent residence cards. Lawful Unlawful
MISTAKE #6: I-9 Document Abuse In October, USDOJ settled a lawsuit against a Las Vegas Casino for $49,000 in civil penalties and full back pay to a former employee for unfair documentary practices. Required non-citizen employees to provide more or different documents than it required from citizen employees. Casino used the information gathered to impose improper document requests on non-citizens during the re-verification process as a condition of continued employment. Subjected non-citizen employees documents to a heightened review process by Sr. HR Reps that was not applied to document presented by U.S. citizens.
HOW EMPLOYERS CAN AVOID MISTAKE #6 CANNOT: Require specific document or combination of documents. Require more or different documents than minimally required. Refuse to accept documents that reasonably appear to be genuine.
I-9 BASIC REQUIREMENTS All employees hired after November 6, 1986 must have a current I-9 form on file. Current version of the form issued 03/08/2013. Section 1 - completed by employee prior to starting work. Section 2 - completed by employer by end of third business day after employee starts work.
LAWFUL OR UNLAWFUL? Employer hires new HR Representative. New HR Rep discovers that all I-9s were done incorrectly. HR Rep shreds all I-9s and completes new ones for every current employee. Lawful Unlawful
MISTAKE #7: Failure to Properly Complete Form I-9s Construction company with no history of previous I-9 violations was assessed fines in the amount of $17,200 for 103 I-9 violations. Failure to present I-9 forms for 10 employees. Failure to list the proper List A document in Section 2 of the I-9. 27 I-9s with procedural or technical violations.
HOW EMPLOYERS CAN AVOID MISTAKE #7 Conduct a self-audit by someone other than the individual responsible for completing I-9s Correct errors, as allowed, on each form. Section 1 Employee makes corrections. Section 2 Employer makes corrections. Strike through errors do not use White Out or Liquid Paper. All corrections should be initialed, dated, and include the words Per Self Audit.
E-VERIFY VOLUNTARY (unless required by state or federal law). E-Verify used to check newly-hired employee s eligibility to work in the U.S. DHS campaign to reward employers who use E-Verify I E-Verify stamp of approval if enroll, agree to I-9 audit and sign ICE Mutual Agreement to adhere to best standards practices.
LAWFUL OR UNLAWFUL? Private employer employs 101 individuals across the U.S., but only one in Georgia. Employer decides it is not required to use E- verify. Lawful Unlawful
MISTAKE #8: Failure to Abide by State Immigration Laws
HOW EMPLOYERS CAN AVOID MISTAKE #8 Prepare a list of all employees by location and have your immigration attorney determine whether you are required to use E-verify; Private Employer E-Verify in Georgia: 500 or more employees 1/1/12; 100 or more employees 7/1/12; 11 or more employees 7/1/13; Employee is person: Employed on Jan. 1; Working no less than 35 hours per week; Who works under the direction and supervision of an employer; To whom you issue W-2 or for whom you withhold FICA, or federal or state income tax from compensation.
LAWFUL OR UNLAWFUL? Employer uses E-verify program. New hire put through E-verify system. Query comes back with a Tentative Nonconfirmation. Employee chooses to contest the Tentative Nonconfirmation, but employer terminates her and provides her with no documents. Lawful Unlawful
MISTAKE #9: Failing to Follow Proper E-verify Procedures USDOJ reached a settlement with a provider of janitorial and facilities maintenance services based in Tampa to resolve allegations that the company violated the anti-discrimination provision of the INA when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S. Company agreed to pay $6,800 in monetary relief to the charging party, which included back pay and interest, along with a $2,000 civil penalty. Charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work authorized.
HOW EMPLOYERS CAN AVOID MISTAKE #9 Employers using E-verify must: Provide the employee with the documents needed to contest a DHS or SSA tentative non-confirmation. Take no adverse action against employee during Tentative Non-Confirmation process. Post notices at job site notifying applicants/employees of E-Verify use.
LAWFUL OR UNLAWFUL? Employer terminates employee after receiving a No-Match letter from the Social Security Administration ( SSA ). Lawful Unlawful
MISTAKE #10: Taking Adverse Actions Against Employees Solely on SSA No-Match Letters There is no clear guidance from the government on how an employer should respond to No-Match Letters received in 2013. Employers should take the following steps upon receipt of a SSN No-Match letter: Check your records to make sure your Human Resources department accurately recorded the employee s information. If an error was made, provide the SSA with any corrections; If your records are correct, promptly notify the employee that you received a SSN No-Match letter and ask the employee to go to SSA to address any discrepancy;
10. Cont d Do not take any adverse action against the employee based solely on the SSA No-Match letter; Apply any procedure developed to respond to the SSA No-Match letters in a non-discriminatory way; and Give the employee a reasonable amount of time to correct any discrepancy. If the employee indicates that he visited SSA and the situation is resolved, please note the actions you and the employee took to resolve the discrepancy in the event of an audit.
HOW EMPLOYERS CAN AVOID MISTAKE #10 Employers that receive a no-match letter should work with counsel to develop strategies to effectively balance their obligations to follow up while treating their employees in a manner that does not run afoul of the anti-discrimination laws.
LAWFUL OR UNLAWFUL? Employer receives a no-match letter from SSA and pulls the employee s I-9 only to discover that the permanent residence card the employee provided during the I-9 process contains a misspelling of issuing government agency. Employer terminates employee when employee cannot provide alternate documents. Lawful Unlawful
MISTAKE #11: Employing Unauthorized Workers Two Houston companies each forfeited $2 million and agreed to adhere to revised immigration compliance programs for employing unauthorized workers. Both companies received multiple "no-match letters" from the Social Security Administration ( SSA ), which indicated employee names and Social Security numbers did not match SSA records. ICE completed an I-9 audit of both companies, revealing that from 2005 to 2009 about 44 percent of the workforce of one company was undocumented, many employed with numerous "egregiously suspect" identification documents, including misspellings of agency names and/or containing the words "novelty item." I-9 audit of the second company revealed that 269 of its 451-person workforce consisted of undocumented workers.
HOW EMPLOYERS CAN AVOID MISTAKE #11 In Section 2, certify that the documents: reasonably appear to be genuine; relate to the individual; and authorize the individual to work. Documents examined must be originals not photocopies. If you re not sure, ask your attorney.
Document Relates to Person?
Document Acceptable List B?
Document Acceptable List C?
LAWFUL OR UNLAWFUL? Homeland Security Investigations shows up at Employer s premises with a warrant, helicopters, and Sherriff s deputies and takes away boxes of company documents, along with computers. Lawful Unlawful
MISTAKE #12: Not Preparing for an ICE Raid Served 3,020 Notices of Inspection and 495 Final Orders, totaling $12,475,575.00 in administrative fines. Made 520 criminal arrests tied to worksite enforcement investigations. Of the individuals criminally arrested, 240 were owners, managers, supervisors or human resources employees. They face charges such as harboring or knowingly hiring illegal aliens. The remaining workers who were criminally arrested face charges such as aggravated identity theft and Social Security fraud. ICE debarred 376 business and individuals for administrative and criminal violations. No industry, regardless of size, type or location is exempt from complying with the law or being the subject of an HSI investigation.
HOW EMPLOYERS CAN AVOID MISTAKE #12 Conduct self-audits of I-9s. Review all evidence of unauthorized workers. In the chaos of an ICE raid, company representatives should not volunteer statements to ICE agents or allow themselves to be interrogated without having an attorney present. Ensure supervisors know who to contact. Designate a point person in each location to document all aspects of the raid. Prepare employees for possible raid. Be prepared to address media.
BOTTOM LINE: CREATE A CULTURE OF COMPLIANCE Ensure immigration compliance programs are: in place up-to-date followed
Thank You Presented by: Shanon R. Stevenson Phone: (404) 240-5842 Email: sstevenson@laborlawyers.com www.laborlawyers.com Atlanta Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Diego San Francisco Tampa Washington, DC