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___________________ H-1B Cap Numbers Still Available, But Advanced-Degree Quota is Now Met
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As of October 21, U.S. Citizenship & Immigration Services (USCIS) received 46,200 petitions against the regular H-1B cap of 65,000, leaving 18,800 slots available in fiscal year 2012. But the advanced-degree quota of 20,000 petitions is now met.
Advanced-degree exemptions were exhausted at a much faster pace than last year, when the quota was not met until December 24, 2010.
All new H-1B petitions that involve advanced degrees will now be counted against the regular H-1B cap of 65,000. As such, the remaining H-1B slots are expected to fill up quicker. Once the cap is reached, employers will need to wait at least until April 1, 2012 to file new H-1B petitions for fiscal year 2013.
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ICE Director Confirms Record Increase in Worksite Enforcement Activity
As part of its immigration enforcement efforts, U.S. Immigration & Customs Enforcement (ICE) has been pursuing a comprehensive worksite enforcement strategy to deter unlawful employment and encourage compliance with the nation's immigration-related employment laws. The Obama Administration is focused on conducting criminal investigations and prosecuting employers who exploit or abuse their employees and those who have a history of knowingly and repeatedly employing unauthorized workers.
John Morton, ICE Director, notes that the strategy aims to (1) penalize employers who hire unauthorized workers; (2) deter employers who are tempted to hire illegal workers; and (3) encourage all employers to use readily available compliance tools, such as E-Verify.
In his recent testimony before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, Morton noted that the success of this approach is reflected in the statistics. As of September 17, 2011, ICE has initiated 3,015 investigations, which is 154 percent more than in all of FY 2008. In FY 2010, ICE arrested 196 business owners, HR managers and executives for criminal worksite-related immigration violations, surpassing the prior high of 135 arrests in FY 2008. So far in FY 2011, ICE has issued a record 2,393 notices of inspection, a more than a 375 percent increase from the number issued in all of FY 2008. This year, ICE has issued 331 final orders totaling $9 million in fines levied on employers compared to 18 final orders issued totaling $675,000 in FY 2008. Furthermore, FY 2010 worksite investigations resulted in a record $36.6 million in judicial fines, forfeitures, and restitutions.
Morton noted, "Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right." He added, "We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals."
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Administrative Law Judge Lowers Fine for I-9 Violations
In a recent employer sanctions case, USA v. Ketchikan Drywall Services, ICE assessed a penalty of $286.624.25 against a Washington state-based drywall company, alleging that it had either failed to prepare I-9 employment eligibility verification forms (for 43 employees), failed to ensure that employees properly completed Section 1 of the form (for 65 employees), failed to properly complete Section 2 of the form (for 110 employees), or possessed I-9 forms in which neither Section 1 nor Section 2 was properly completed (53 employees). On appeal to the Executive Office of Immigration Review's (EOIR's) Office of the Chief Administrative Hearing Office (OCAHO), Administrative Law Judge (ALJ) Ellen K. Thomas lowered the fine to $173,250.
While the ALJ's decision to lower the fine was based on specific facts in the case, her findings reveal where OCAHO stands and how employers may defend themselves against I-9 enforcement.
Judge Thomas stated that she is not bound by ICE's civil penalty matrix and its self-imposed limit on its ability to negotiate with employers. Whether to treat omitted information on the I-9 (such as issuing authority for a driver's license) as substance versus technical error often depends on whether there are legible copies attached to the I-9. ICE and OCAHO, however, frown upon supporting documents that are not routinely attached to the I-9 forms and that are provided late in the audit process.
The lessons that employers may draw from the decision include:
(1) Fill in EVERY blank on the I-9 form. Some information (such as the employer attestation) cannot be remedied even if information on the supporting documents show the employee is authorized. In this case, the failure to check a box in Section 1, identify the type of document reviewed, or sign Section 2 were all deemed substantive violations even where copies of the employees' documents were attached.
(2) Make sure the information is accurate. Judge Thomas agreed with ICE that writing down Social Security "letter" instead of "card" is a substantive violation, even if the employer's intent is clear.
(3) The mere issuance of no-match letters is not enough to infer the presence of unauthorized workers (although ICE did make this argument before the judge).
(4) Simply because the employer has not had prior violations does not mean that the employer necessarily deserves a reduction in fine for having a clean "history."
(5) If an employee has been off payroll for more than one year, the break is too long for him to be a continuous worker and the employer must complete a new I-9.
The Drywall Services case, along with the recent decisions in New China Buffet and Subway Restaurant, show that ICE is focusing on "paperwork" errors, and OCAHO is agreeing with ICE on many findings. While "paperwork" errors are often confused with technical errors, they are substantive and may subject employers to hefty fines.
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