Department of Homeland Security Focuses on Interior Enforcement
On April 20, 2006, the Department of Homeland Security (DHS) announced that it would target employers of undocumented workers inside the U.S. With the exception of airports, military bases and defense contractors, work site enforcement has been almost non-existent since the mid-1990s. At that time, the former INS made a habit of chasing down undocumented workers at restaurants precisely at the noon lunch hour, raiding rose gardens on Mother’s Day, and otherwise causing the most public and painful enforcement experience for the employers of illegal workers and the customers who received the services of such employers. It remains to be seen if the current enforcement efforts will trickle down to affect purchasers of strawberries or those who do not bring their lunch to work.
In the most recent raid, the DHS took action against IFCO Systems in a raid which was coordinated in 26 states and led to the arrest of 7 managers and 1200 undocumented workers. Under the current law, any person who within a 12 month period knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are not authorized to work in the U.S. may face up to five years in prison. A company with 1200 undocumented workers in 26 states will likely face a criminal prosecution in addition to significant civil fines. Civil fines for knowingly hiring unauthorized workers range from an amount of no less than $250 per unauthorized worker to no more than $11,000 per unauthorized worker.
Even companies with a 100 percent legal workforce can still face penalties for not properly completing and maintaining Forms I-9. Civil penalties start at a minimum of $100 per violation. The best protection for employers is, at a minimum, to complete Forms I-9 for ALL employees who were hired after November 6, 1986, including executives and senior level managers. Also, employers should establish a system for tracking and updating the Forms I-9 as needed.
The CIS began accepting petitions for Fiscal Year (FY) 2007 H-1B visas from April 1, 2006. The soonest these visas can be used for work authorization will be October 1, 2006, which is the start of FY 2007. Last year, the quota of 58,200 regular track H-1B visas was exhausted by the first day of the fiscal year on October 1, 2005. The 20,000 H-1B visas for persons who had obtained a Master’s or higher degree from a U.S. university was exhausted in January of 2006. Regular updates regarding the cap count for FY 2007 can be found here .
The L-1 visa is used by both small and large multinational companies to facilitate the transfer of employees to the U.S. A “blanket” pre-approval process is available to companies with three or more branches, subsidiaries, or affiliates and with at least $25 million in annual sales, 1000 U.S. employees or which have obtained at least 10 L visa approvals in the previous 12 months. The blanket pre-approval certifies that the qualifying corporate relationship and other company specific criteria have been met. Once the blanket is in place, the company’s foreign workers can apply to have their individual visa qualifications reviewed directly by a U.S consulate abroad, which can then issue the visa. This often saves at least several weeks of processing time.
To qualify for an L-1 visa, the foreign worker must have worked for an affiliate or subsidiary for at least one year within the most recent three years. For a time prior to June 6, 2005, employees applying under the blanket procedure were required only to have six months of qualifying employment with a subsidiary or affiliate. The law was amended in 2005 to require ALL L-1 visa applicants to have at least one year of qualifying employment abroad prior to applying for a L-1 visa but it was not clear whether companies with blanket petitions filed prior to the effective date of the amendment could continue to sponsor workers for initial L-1 visas with only 6 months of qualifying employment. At the beginning of this month, the Department of State (DOS) clarified, in concurrence with Citizenship and Immigration Services, that companies which filed a petition for an initial blanket L classification prior to June 6, 2005, may continue to bring in blanket qualified workers with only 6 months of qualifying employment. While both agencies are continuing in their examination of this interpretation and the related policies, a useful L-1 option may exist for some companies currently struggling with the H-1B cap.
Previously, employment based immigrant and nonimmigrant petitions were filed at one of four regional service centers. The CIS recently implemented a new policy pursuant to which all E, H, L, O, P, R or TN nonimmigrant cases are to be filed initially with the Vermont Service Center, with a certain percentage being forwarded by CIS to the California Service Center, and employment based immigrant petitions are to be filed with the Nebraska Service Center, with a certain portion forwarded by CIS to the Texas Service Center. There are a limited number of exceptions to this general policy and the new policy may be subject to further changes and clarification. Additional information regarding the CIS bi-specialization program can be found in a five page CIS memo here .
The biggest immediate impact from this policy is the puzzlement of foreign workers who have received notices informing them that the I-140 immigrant petition filed on their behalf has been transferred to Texas (or Nebraska). Longer term, the bigger concern is that processing times for the various processes could become significantly longer by multiples of two, three or even four. The CIS has never been a model of efficiency and the transfer of tens of thousands of files is not going to help the agency to become faster or more efficient in processing cases in the present year.
Most employees seeking to obtain lawful permanent residence (a green card) through their employer must first obtain an approved labor certification from the Department of Labor (DOL). The DOL recently issued some numbers regarding its new internet based process called PERM (Program Electronic Review Management). As of March 17, 2006, 80,272 PERM cases were filed. Of those 36, 687 were certified (approved), 1,950 were withdrawn, 23,205 were denied, the rest are still pending. While these numbers suggest a denial rate approaching 29%, many of these denials were for technical reasons, such as mistakenly checking an incorrect box on the form. Many of the cases initially denied were resubmitted and eventually certified. We have been fortunate in not receiving any PERM denials in our office. Over time, the DOL denial rate for the U.S. as a whole should decline as the parameters and pitfalls of the system become better known.
The DOL currently has 255,000 cases pending at its Backlog Elimination Centers. Most of these are traditional cases for which the required recruitment steps have not yet been completed. While not appropriate for all cases, the option of converting traditional cases to PERM cases under the conversion process implemented through the PERM regulations is becoming more popular with employers. It remains to be seen as to what extent this will help in resolving the BEC backlog.