Tag Archives: Immigration

Immigration Reform Bill Revealed and the Debates are On…

Contributed by Sara Zorich

Last week the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced.  Since then, there have been a series of congressional hearings to discuss the provisions of the Act.  It is clear from the hearings that there are strong opinions on the bill from many communities that would be affected.  In general, the bill proposes sweeping reform to the country’s broken immigration system.  A summary of the main sections covered by the bill is as follows:

  • Border Security – improving border security including increased surveillance and patrol
  • Legalization and Legal Immigration – work authorization and path to citizenship for individuals currently in the United States with unlawful status; requirement to pay back taxes as part of the application process
  • Legal Immigration – overhaul of the current system for family and employment based immigration
  • Mandatory E-Verify and Increase/Additional Penalties – all employers would be required to use the E-Verify system for employment verification in addition to the Form I-9 within the required phase in periods; employers with more than 5,000 employees would be phased in within 2 years, employers with more than 500 employees will be phased in within 3 years and all employers within 4 years; significant fines from $3,500 – $7,500 per worker for knowingly hiring or continuing to employ unauthorized aliens and fines for failure to comply with E-Verify use requirements; establishes the potential for an electronic Form I-9 in conjunction with E-Verify
  • H-1B Visa Reform – increasing the current cap for the H-1B visa category, additional regulations aimed to curtail alleged H-1B abusers by requiring “H-1B dependent employers” to pay significantly higher wages and modification of application/posting requirements for all H-1B employers
  • New W-Visa Program for Lower-Skilled Workers – new visa category for foreign workers to perform services or labor for registered employers in registered lower skilled positions; the number of visas in this new category would fluctuate annually and is dependent on unemployment rates, job openings, bureau recommendations and additional data
  • Agricultural Job Opportunities – current undocumented farm workers will have an opportunity to obtain legal status

Employers should be aware that the congressional hearings have begun and nothing in the current bill is set in stone.  The bill is certain to go through rounds of revisions before it is set for any vote before the Senate or the House of Representatives.  However, at least thus far, mandatory E-Verify is a pillar of the bill and its continued inclusion seems certain.

Since, in recent years, the government has only increased its enforcement of I-9 and immigration compliance, employers should consider reviewing their current processes and policies in advance of any implementation of mandatory E-Verify.  Further, as a reminder, employers MUST utilize the new Form I-9 (Rev. 03/08/13)N no later than May 7, 2013.  Starting on May 7, 2013, employers are not allowed to use prior versions of the Form I-9 for employment verification of new employees.

Who’s creating jobs now? Stall in U.S. Immigrant Entrepreneurship

Contributed by Jacqueline Lentini McCullough

According to a study released last month by the Ewing Marion Kauffman Foundation, the U.S. is experiencing a steady decline in the percentage of immigrant founded start-ups. Nationwide, the percentage of immigrant founded start-ups declined from 25.3 to 24.3 percent since 2005. In Silicon Valley, the situation is even more pronounced with the percentage of immigrant start-ups declining from 52.4 to 43.9 percent since 2005. If immigrants cannot successfully be employed by the companies they create, the incentive to keep the company located within the U.S. diminishes.

According to the Kauffman Foundation’s research findings, a byzantine immigration system and unfriendly environment in the U.S. is at fault and creates a “reverse brain drain” in the U.S. The research findings were conducted by Vivek Wadhwa, an Indian immigrant and academic researcher who recently released a book on the subject entitled, “The Immigrant Exodus: Why America is Losing the Global Race to Capture Entrepreneurial Talent.” According to Mr. Wadhwa’s book, the U.S. is experiencing an unprecedented halt in high-growth start-ups founded by immigrants. Without  immigration policy changes addressing the issue of limited green cards for skilled foreign nationals, the U.S. will continue to lose key job creators.  Mr. Wadhwa has launched a website funded by the Kauffman Foundation, http://www.immigrantexodus.com, as a resource for journalists and immigrant entrepreneurs.

Indian foreign nationals in the U.S. currently comprise the highest number of U.S. businesses founded by immigrants within the last six years at 33.2 percent.  Indians created more engineering and technology firms than immigrants from the next nine immigrant-founder countries combined. The remaining countries include the following: China (8.1%), the United Kingdom (6.3%), Canada (4.2%), Germany (3.9%), Israel (3.5%), Russia (2.4%), Korea (2.2%), Australia (2.0%), and the Netherlands (2.0%). Immigrant founders are most likely to start companies in the innovation/manufacturing related services, and software industries, employing approximately 560,000 U.S. workers. These industries combined generated an estimated $63 billion in sales from 2006 to 2012, emphasizing the importance of high-skilled immigrants to U.S. economic expansion.

Not surprisingly, while the U.S. is experiencing immigrant start-up stagnation, India and China are seeing the rates of start-up companies increasing.

USCIS Extends Expiration Date of Current I-9 Form

Contributed by Sara Zorich

On August 13, 2012, U.S. Citizenship and Immigration Services (USCIS) announced that employers should continue to use the current Form I-9 available until further notice.  Employers can find the current I-9 Form at http://www.uscis.gov/files/form/i-9.pdf.  USCIS has indicated that this current form should continue to be used even though there is an expiration date of August 31, 2012 on the form.

In March 2012, USCIS published a proposed revision to the Form I-9 and accepted comments from the public on the proposed revisions through May 2012.  However, USCIS has not accepted the new form and is instructing all employers to continue using the current I-9 form until further notice.

USCIS Begins Accepting Forms for Consideration of Deferred Action for Childhood Arrivals

Contributed by Sara Zorich

On June 15, 2012 we reported that Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and who meet certain criteria would be eligible for consideration of Deferred Action on a case-by-case basis.  Deferred Action is defined as a discretionary determination to defer removal of an individual as an act of prosecutorial discretion.  If a person is granted Deferred Action, they can apply for an Employment Authorization Document allowing them to legally work in the United States.

On August 14, 2012 U.S. Citizenship and Immigration Services (USCIS) announced that it was releasing the forms an individual needed to complete in order to apply for deferred status and employment authorization.  These forms include Form I-821D (Consideration of Deferred Action for Childhood Arrivals), Form I-765 (Application for Employment Authorization) and an I-765 WS Worksheet.  On August 15, 2012, USCIS began accepting these forms and will begin processing these forms.

Employers should be aware that an employee may come to them and present a new Employment Authorization Document (EAD) the employee received based on the employee’s acceptance by USCIS for Deferred Action.  The employee may admit to the employer that the employee previously submitted false documentation to support the I-9 form and his/her eligibility to work in the United States.  Employers should consult with counsel before taking any adverse action against any employee presenting a new EAD obtained through the Deferred Action process.

Department Of Homeland Security Decides to Cease Deportation of Some Individuals Through Prosecutorial Discretion

Contributed by Sara Zorich

On June 15, 2012, the Department of Homeland Security (DHS) announced that it will exercise prosecutorial discretion on a case-by-case basis regarding whether to cease deportation proceedings of certain undocumented aliens under the age of thirty. The DHS announced that an individual who can demonstrate the following will be eligible for an exercise of discretion deferral of deportation for a two-year period:

  1. Came to the United States under the age of sixteen;
  2. Have continuously resided in the United States for a least five years preceding June 15, 2012 and are present in the United States as of that date;
  3. Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;
  4. Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;
  5. Not over age 30 as of June 15, 2012.

DHS has indicated that deferred action is not amnesty, is not immunity, is not permanent, is not legal status and is not a pathway to a green card or citizenship. The directive is a stop-gap to attempt to allow Congress time to pass alternate forms of immigration reform.

If the individual meets the above criteria and is granted the deferred action, they will be eligible to apply for an employment authorization document enabling them to work in the United States if they can prove “an economic necessity for employment.”  The employment eligibility will be granted for a two-year period subject to extension if their deferred action is extended.

At this time DHS and U.S. Citizenship and Immigration Services (USCIS) have not issued any procedural guidelines for those eligible for deferred action as the agencies have 60 days in which to create a process for the requests.  Thus, employers should be aware that no one has been grated deferred action at this time nor have any employment authorization documents based on deferred action been issued.  We will keep you updated as to further developments.

Employers Beware of the Burden of Claiming Employees are Not Entitled to Back Pay Based on Their Immigration Status in an NLRB Hearing

Contributed by Sara Zorich

The National Labor Relations Board (NLRB) has raised the bar making it more difficult for employers to defend NLRB claims for back pay based on the affirmative defense that the employee is not authorized to work in the United States.  The NLRB recently held that an employer must articulate with particularity their basis for claiming that an employee is not entitled to back pay based on the employee’s immigration status and general assertions are insufficient to satisfy the employer’s burden.  (See Flaum Appetizing Corp et. al., 357 NLRB No. 162, Dec. 30, 2011).  In Flaum, the majority held that the employer was not entitled to discovery, the ability to subpoena documents or examine witnesses on the immigration status of the employees unless and until the company had submitted specific factual evidence in support of its position that the employees were not authorized to work in the United States.  Thus, employers should be aware that the NLRB will most likely require the employer to proffer extensive evidence of the employee’s alleged undocumented status prior to entertaining discovery on the issue.

Supreme Court Agrees to Review Arizona’s Controversial Immigration Law

Contributed by Sara Zorich

In its Petition for Writ of Certiorari filed on August 10, 2011, the state of Arizona requested that the Supreme Court review the Ninth Circuit’s prior decision to enjoin four provisions of Arizona’s Immigration law on the basis that:

  1. The case was of extraordinary importance with regard to a national issue;
  2. The Ninth Circuit’s decision created a circuit split regarding the preemptive effect of the federal immigration laws;
  3. The Ninth’s Circuit’s decision to enjoin the Arizona law was wrong based on the law.

The four provisions of the Arizona law enjoined by the Ninth Circuit in July 2011 included:

  • Section 2 (B) – requiring law-enforcement officials to determine the immigration/citizenship status of anyone who is stopped, detained or arrested;
  • Section 3 – making it a state crime to be unlawfully present in the United States;
  • Section 5 (C) – making it a state crime for any “unauthorized alien” to apply for or perform work in Arizona;
  • Section 6 – authorizing warrantless arrests of aliens by law enforcement if they have probable cause to believe the person has committed an offense that could subject them to deportation. 

On December 12, 2011, the US Supreme Court granted Arizona’s request and has agreed to review Arizona’s immigration law.  The high court will decide whether the enjoined provisions of Arizona’s immigration law, SB 1070, are preempted by federal law.  The Supreme Court’s decision will likely have a sweeping impact on a state’s ability to implement immigration laws to supplement those implemented by Congress.  Of note, Justice Kagan will take no part in the consideration or decision of the issue based on her prior work with the Obama administration.