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| Immigration in Business Alert for Employers
an Educational Service by Badmus Law Firm |
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Greetings!
In 2010, the government will continue to aggressively monitor and audit employers as an overall strategy of tough immigration enforcement. In this issue, you will find the information, tips, and tools to help you and your business survive government scrutiny and avoid the fines, penalties, and negative publicity associated with immigration violations. |
Sincerely,
Ann Massey Badmus
Badmus Law Firm
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 H-1B Employers - Be Prepared for Surprise Government Visits to Your Worksite!
H-1B employers need to be aware that the USCIS is conducting approximately 25,000 random worksite visits to verify that the H-1B employee is actually employed with the sponsoring employer as described in the H-1B petition. Many of our client employers, both large and small, have already experienced these unannounced visits. It's important that you and your employee are ready for these visits which usually include an interview with the company representative, an interview with the H-1B employee, and a tour of the work facility. Here are five steps you should take to prepare for and respond to a surprise visit by the government to your workplace:
1. Review the H-1B petition you filed to make sure your work locations, title, job duties, and wages are listed correctly. If not, contact your lawyer immediately for further advice.
2. Have your attorney's number available so you can call her immediately, before you begin your interview with the investigator. You are entitled to have your attorney present by phone or in person.
3. If the employee works at a client site, contact your client's representative to let them know about the possibility of a site visit and advise them to contact you immediately in case of a surprise visit.
4. Conduct a self-audit of your LCA public access files. Contact the attorney who prepared the H-1B petition to help with a self-audit of these compliance files which are required for all employers.
5. Schedule a mock interview with your H-1B employee and attorney to prepare for a possible site visit so you can feel more comfortable if it happens.
Read our next article in this issue for further information about the three types of government site visits or audits being conducted. For a list of the specific questions the government asks during these site visits and other materials to help you thoroughly prepare for site visits and compliance audits, you are invited to email Ann Badmus at annbadmus@badmuslaw.com. |
Compliance Alert for Employers - USCIS Worksite Visits
At a November 19, 2009, program put on by the Department of Homeland Security, titled "2009 Government and Employers: Working Together to Ensure a Legal Workforce," Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:
1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based, this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.
2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.
3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.
AILA InfoNet Doc. No. 09112060 (posted Nov. 20, 2009)
For a list of the specific questions the government asks during these site visits and other materials to help you prepare for site visits, you are invited to email Ann Badmus at annbadmus@badmuslaw.com.
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 Koch Foods Fined $536,000 for I-9 Violations(AP) - February 12, 2010
CINCINNATI - Federal authorities say poultry processor Koch (kuk) Foods Inc. has paid more than $536,000 in fines stemming from a 2007 immigration raid in southwest Ohio. Authorities say they rounded up 161 workers who were in this country illegally at the Koch plant in Fairfield, north of Cincinnati. U.S. Immigration and Customs Enforcement said Friday the fines have to do with filling out and verifying employment forms. The agency says Park Ridge, Ill.-based Koch has taken steps to avoid future violations. An attorney for company has said there is no evidence that anyone at Koch knowingly broke the law.
Copyright © 2010 The Associated Press. All rights reserved.
Badmus commentary - According to ICE, this large fine stemmed from Koch Foods failure to complete I-9 forms correctly. In its press release, ICE announced:
Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. The fine relates to I-9 violations at Koch's Fairfield, Ohio, facility. The company has cooperated with ICE in the investigation employing the use of E-Verify and ensuring that its policies and procedures are in compliance with legal requirements. "Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance," said Brian Moskowitz, Special Agent in Charge of ICE Office of Investigations in Michigan and Ohio. "The significant civil fines leveled here represent ICE's firm commitment to holding employers accountable."
ICE issued a Notice of Intent to Fine for the $536000 fine on Feb. 8. The Final Order was issued and fine paid on February 9 in Cleveland. According to ICE, Koch Foods has implemented measures revising its hiring and immigration compliance program, and has established new procedures to prevent future violations of federal immigration laws, which includes the removal of the individual employed as the human resource manager during the time period surrounding the violations.
Read on for tips on how to avoid I-9 form mistakes and save thousands in fines and penalties.
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 The Top 10 Mistakes Employers Make and Must Avoid on the I-9 Form
The Department of Homeland Security's Immigration and Customs Enforcement Agency (ICE) has announced that it will audit the I-9 forms of thousands of businesses in the coming years. Audits are not limited to any particular industry so no company is immune. With potential fines of $110 to $1100 for each violation found on an I-9 form, no matter how innocent, companies must ensure that their I-9 forms are error-free.
Here are the 10 most common mistakes employers make that can costs thousands if left uncorrected.
Mistake #1 - The Employer and/or employee fails to sign and date the I-9 forms where indicated on the form.
Mistake #2 - The employee fails to complete section 1 of the I-9 Form on the first date of work.
Mistake #3 - The Employer does not examine the I-9 documents and fails to complete section 2 of the I-9 form with three business days of hire.
Mistake #4 - The Employer leaves the start date for work blank in the "certification" block of section 2.
Mistake #5 - The employee does not mark one of the four blocks in section 1 regarding his or her status or fails to provide the necessary information for the third and fourth blocks. The employee must indicate whether he is a U.S. citizen, noncitizen national, permanent resident, or otherwise authorized to be employed.
Mistake #6 - The Employer forgets to track the expiration date of work authorization and does not re-verify an employee's employment authorization on or before the expiration date listed on the I-9 form.
Mistake #7 - The Employer over-documents and lists too many documents in section 2. This could lead to a discrimination charge against the Employer.
Mistake #8 - The Employer looks at photocopies rather than original verification documents. The employee must present original documents and the Employer should never accept photocopies of documents for verification.
Mistake #9 - The Employer fails to match the employee's verification documents - the Employer should look for a match and consistency in the employee's name and date of birth on the documents.
Mistake #10 - The Employer fails to consistently apply its photocopying policy. The law does not require Employer to make copies of verification documents; however, if the Employer does make copies, it must make copies for all employees, not just some. And, any copies of verification documents must be kept with the I-9 form and nowhere else.
An internal self-audit of your I-9 forms can uncover these mistakes and correcting them, before a government audit, can save you thousands!
This information is provided as an educational service by Ann Massey Badmus of Badmus Law Firm. If you have questions about how to conduct an internal I-9 self-audit or other immigration rules that challenge or affect your business, you are invited to call or email at 888-849-9104, annbadmus@badmuslaw.com or visit our website at http://www.badmuslaw.com. |
 H-1B Visa Competition Begins April 1- Prepare Now To Hire and Retain Key Employees
On April 1, 2010, U.S.Citizenship and Immigration Services (USCIS) will accept H-1B visa petitions for the 2011 fiscal year. As usual, the USCIS will accept and approve up to 65,000 new H-1B petitions per year and an additional 20,000 for new H-1B employees who hold a master degree or higher from a U.S. educational institution (foreign degree equivalency is not sufficient). This numerical limitation is commonly call the "H-1B Cap." Unless you are a cap-exempt employer (read further), you need to apply on April 1, 2010 or very soon after to win approval for an employee to start work on October 1, 2010 (or continue working if they have another work authorization or work visa currently). While last year's quota was not filled until December, there is no way to predict to demand this year so an early start is recommended.
There are exemptions from the H-1B cap (cap-exempt). In most cases, those workers that already hold H-1B status are exempt from the cap even if a new employer files an H-1B petition. Employers that are post-secondary educational institutions such as universities and colleges (including two-year technical schools) and their non-profit affiliates are exempt from the H-1B cap. Employers that are nonprofit research organization and government research organizations are also exempt. And, workers who will work at the locations of these organizations, even though actually employed by for-profit companies, are also cap-exempt. For example, physicians who are privately employed but work primarily at university-affiliated hospitals will qualify for cap-exempt H-1B visas.
This information is provided as an educational service by Ann Massey Badmus of Badmus Law Firm. If you have questions about how to navigate the immigration system for your foreign national employees, you are invited to call or email at 469-916-7900, annbadmus@badmuslaw.com or visit our website at http://www.badmuslaw.com. |
Badmus Law Firm is a law firm focusing on business immigration services to companies and individuals for over 15 years, and is certified as a Women's Business Enterprise (WBE) by the Women's Business Council - Southwest (WBCS), a regional certifying partner of the Women's Business Enterprise National Council (WBENC). WBENC's national standard of certification implemented by the WBCS, is a meticulous process including an in-depth review of the business and site inspection. The certification process is designed to confirm the business is at least 51% owned, operated and controlled by a woman or women. By including women-owned businesses among their vendors, corporations, and government agencies demonstrate their committment to fostering diversity and the continued development of their supplier/vendor diversity programs. For more information, visit us at www.badmuslaw.com.
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The information in this newsletter has been provided as an educational service. If you have specific questions or issues related to immigration, you are invited to call us at 469-916-7900 or email me at annbadmus@badmuslaw.com. Have a great February!
Until next time,
Ann Massey Badmus
Founding Attorney and CEO
Badmus Law Firm | |
| NOTE: Immigration law changes frequently. The resources and information provided in this newsletter are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these articles without seeking the advice of an attorney. To consult with Badmus Law Firm regarding your case, click here. | |
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