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Koch Foods Fined $500,000+ for Immigration Violations
More than two years after ICE raided Koch Foods, the chicken processor had to pay a $536,046 fine for immigration (Form I-9) violations earlier this month. The ICE Office of Investigations in Cincinnati, Ohio, began a worksite investigation of Koch Foods after receiving information from a concerned citizen alleging that the company employed more than 100 undocumented workers at their poultry-processing facility in the Cincinnati area.
In August 2007, ICE executed a search warrant at Koch's Fairfield, Ohio, processing facility, arrested 161 undocumented workers, and seized several documents. ICE also executed a search warrant at Koch's corporate headquarters in Chicago, seizing several documents.
Koch Foods has since began using E-Verify, an Internet-based system that allows an employer to verify a person's work eligibility.
"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, ICE Special Agent in Charge of investigations in Michigan and Ohio. "The significant civil fines leveled here represent ICE's firm commitment to holding employers accountable." |
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USCIS Issues H-1B Memo on Employer-Employee Relationships and Third-Party Placements
U.S. Citizenship & Immigration Services (USCIS) issued a memorandum, dated January 8, 2010, that alters USCIS' definition of the employer-employee relationship as it relates to H-1B third-party worksite placements, and could reach other areas of employment-based immigration. The memo, however, does not change any current requirements for an H-1B petition: the beneficiary must still work temporarily in a specialty occupation; the beneficiary must be qualified for the position; and a Labor Condition Application (LCA) specific to each location where the beneficiary will be working must be filed with the Department of Labor.
The memo reinforces the requirement that an H-1B employer must establish a valid employer-employee relationship with the beneficiary. The relationship hinges on the H-1B petitioner's right of control over the beneficiary, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner's right to control the beneficiary's daily work and work product; and the petitioner's right to hire, pay and fire the beneficiary. USCIS officers are instructed to review the totality of circumstances when determining whether an employer-employee relationship exists.
USCIS notes that there is no valid employer-employee relationship in scenarios involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites if the petitioner contracts with outside companies to fill their staffing needs. In third-party placements (or "job shop" arrangements), which is common in the IT consulting industry, the positions are not outlined in a contract between the petitioner and the third party company, but are staffed on an as-needed basis. The beneficiary reports to a manager who works for the third-party company. The third-party, not the petitioner, issues work assignments to the beneficiary. The petitioner does not control the work, and the petitioner's proprietary information is not used in the process. The end product is not related to the petitioner's business and the beneficiary's progress reviews are done by the end client. Ultimately, the petitioner does not have the right of control and does not exercise control over the beneficiary.
Petitioners whose business practice may be seen as within the third-party placement are likely to receive RFEs in their H-1B petitions. Such employers will need to prove control over the beneficiaries or modify their practice to establish a direct employer-employee relationship.
The memo concludes that persons with a substantial interest in a petitioning company may not, in most cases, qualify as a beneficiary of an employment-based nonimmigrant or immigrant visa. |
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Prepare to File H-1B Petitions for Fiscal Year 2011
Starting on April 1, 2010, USCIS will begin accepting cap-subject H1B petitions, with employment start dates no earlier than October 1, for the fiscal year 2011 (FY11) H1B cap season. USCIS will continue to accept petitions until the annual cap is met.
In the past, the cap was reached in the first few days that USCIS began to accept cap-subject H-1B petitions. In fiscal year 2010, however, cap numbers were available for nine months through December 21, 2009, due to the ailing economy and USCIS' stricter interpretation and enforcement of regulations. While these factors still exist, employers are better off filing their cap-subject H-1B petitions on April 1 or as early as possible because it is impossible to know when the cap will be met.
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