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Period of Stay Increases to Three Years for NAFTA TN Visa
The U.S. Citizenship and Immigration Services (USCIS) amended its regulations to increase the maximum period of stay that a North American Free Trade Agreement (NAFTA) professional worker from Canada or Mexico (TN) may remain in the U.S. before seeking readmission or obtaining an extension of stay. Similar to H-1B workers, TN workers may now remain in the U.S. for an initial period of three years, instead of just one year. Eligible TN non-immigrants may also receive extensions of stay in increments of up to three years instead of the prior maximum of one year.
USCIS proposed these changes on May 9, 2008, in a proposed notice of rulemaking. It received 80 comments on the proposed rulemaking during the comment period, which ended June 9, 2008. Most of the commenters supported the increase from one to three years, but two commenters opposed it because they thought that jobs should be offered to U.S. workers instead of foreign nationals. One commenter stated that the U.S. economy is suffering and jobs should thus be reserved for U.S. workers. The other commenter stated that the TN program should be shut down while the U.S. sorts out the problems with illegal immigrants present in the U.S. In rejecting these comments, USCIS noted that the new rule does not make it easier to hire TN non-immigrants by altering eligibility requirements, changing existing filing fee requirements, or expanding the principle of "dual intent"; but simply increases the amount of time granted to a TN nonimmigrant who meets all the eligibility requirements. The USCIS also disregarded comments requesting that TN non-immigrants be allowed to have "dual intent" so they may pursue permanent resident status while in the U.S. without compromising their eligibility for TN status. The USCIS noted that dual intent must be authorized by statute, not by regulations. |
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Human Trafficking and Corporate America
"Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." 13th Amendment to the U.S. Constitution, December 6, 1865.
The 13th Amendment to the U.S. Constitution was passed at the culmination of the civil war, the deadliest conflict in U.S. history that cost over 600,000 lives. This amendment signified the end of slavery in the U.S., yet human trafficking continues to this day. It is estimated that 18,000 to 20,000 individuals per year are trafficked in the U.S. and forced into labor or sexual exploitation. This is a form of modern-day slavery.
The passage of the Trafficking Victims Protection Act (TVPA) in October 2000 reflects the federal government's interest in combating these crimes and incorporating measures to protect and assist victims, prevent trafficking, and investigate and prosecute traffickers. The TVPA defines "severe form of trafficking in persons" as sex trafficking in which a commercial sex act is induced by fraud, force or coercion, or in which the person induced to perform such act has not attained 18 years of age. The alternative definition is the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery.
Trafficked persons can be found in a wide range of industries that include brothels, domestic service, agricultural work, construction, service industries, factories, restaurants and sweatshops. A wide range of criminal federal and state statutes are applied in these investigations. In fact, numerous Trafficking Task Forces have been established across the United States. Participating agencies include the Federal Bureau of Investigation (FBI), Immigration & Customs Enforcement (ICE), Department of Labor (DOL), and a multitude of local and state police agencies. Significant federal funding is available to these task forces.
The victims are not always undocumented foreign nationals. Even U.S. citizens can be recruited and held in peonage in this country. Law enforcement is increasingly being trained to look for evidence of domestic trafficking. Some indicators of this type of offense relates to the nature of the business that employs the people, and whether the security of the business is intended to keep people out or is designed to keep people in. The working conditions are highly relevant. For example, do the employees have freedom of movement? Do the employees live and work at the same place? Do the workers owe a debt to their employer? Does the employer have control over the employee's documentation such as passport, driver's license, or green card? Are the employees charged for food, transportation, housing, clothing and medical expenses? Are workers paid the prevailing wage and are overtime hours properly documented and paid? Is there evidence that some workers are underage? Are some employees paid in cash or are unusual deductions taken from their paychecks?
The last couple of years have shown a significant increase in trafficking cases being investigated and criminal charges being brought against those involved. The cases represent a broad spectrum in the community, from owners of brothels and "gentlemen's clubs" to management at hotels, restaurants, construction firms and maintenance companies. The government will pursue criminal convictions, asset forfeiture, and reimbursement for lost wages. In order to fully develop these cases, the government also pursues legal avenues to support the victims who may, if undocumented, remain in the U.S. under a special visa category to assist in the investigation or prosecution of their traffickers.
Responsible companies take the welfare of all employees seriously, but there are rogue employers and labor contractors that are adept at crossing ethical lines and abusing their workers for profit. As an employer, you may have the highest of standards, but do your sub-contractors and suppliers maintain the same ethical approach to their employees?
Have you traced the supply chains of the products you sell? Do you purchase products and materials from foreign businesses that condone inhumane working conditions? Do you have a code of conduct that sets out minimum labor standards for sub-contractors and suppliers? What about your franchise operations and supervisory oversight and internal audits? How does management react to adverse information? Are complaints fully vetted and investigated?
By addressing questions like these, corporations can help to deter workers' rights abuses and ensure they do not become targets of human trafficking investigations, which are now a top priority of the federal government.
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DHS Issues Supplemental Final Rule on No-Match Letters
On October 23, 2008, the Department of Homeland Security (DHS) released a supplemental final rule on safe-harbor procedures for employers who receive a Social Security Administration (SSA) no-match letter stating that a combination of the employee's name and Social Security number does not match SSA records.
Last year, in August 2007, the U.S. District Court for the Northern District of California issued a preliminary injunction staying the implementation of the No-Match Rule. The DHS claims that the supplemental final rule clarifies what steps employers should take to respond to no-match letters and ensure that they are not employing unauthorized workers.
"We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need," said Homeland Security Secretary Michael Chertoff. "This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible."
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