Immigration News + Analysis

Maggio + Kattar

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The issues raised by the government included that Infosys issued B-1 support or "invitation letters" to employees that the company knew would be coming to the U.S. for work. In the letters, the company stated that the individuals were coming for "meetings" and "discussions" as opposed to performing active work in the U.S. which is not authorized under the B-1 visa category. Further, the employees were specifically instructed to "not mention activities like implementation, design, testing...."

Among other issues, Infosys did not adequately complete and maintain I-9 Employment Verification forms for its foreign nationals in the U.S. in 2010 and 2011 and it did not properly re-verify the status of individuals in the U.S. on time limited work authorization.

 

In addition to the historic fine, Infosys has agreed to additional auditing of its I-9 forms, reporting requirements for B-1 usage as well as the use of detailed invitation letters, and a discipline procedure for employees who violate U.S. immigration laws.

 

M+K Managing Shareholder Jim Alexander commented on immigration violations for CNN.   To see this segment, click here. 

In 2010, the U.S. Department of Homeland Security ("DHS") entered into an agreement to provide the Department of Justice's Office of Special Counsel ("OSC") with information gathered by the E-Verify system, including citizenship status and documents provided to complete Section 2 of the Form I-9. While the initial goal of the E-Verify system was to confirm the validity of documents presented by workers to prove identity and work authorization, the OSC uses its access to E-Verify data to identify trends that may indicate an employer's discriminatory practices. The OSC has used this data to initiate investigations of discrimination by E-Verify participating employers, some in the absence of any employee complaints. Unfortunately, the use of limited data, in the absence of other important context, can create misleading results. While the agreement between DHS and the OSC has been in place for some time, with the increase in participating employers, we are seeing an increase in these investigations.

 

In its early stages, E-Verify focused on supporting users and generating participation rather than regulation. Eventually, however, DHS began using the data in E-Verify to monitor compliance. This monitoring started with the issuance of "Desk Memos" to employers for data patterns indicating that Tentative Non-Confirmations ("TNCs") are not being followed up on timely or cases are not being closed. Much of this was due not to neglect, but user error. For example, this can easily occur when new cases are created to correct data-entry errors rather than closing out the existing cases. Later, when the Form I-9 was updated to include e-mail address, DHS issued the edict that if an employee voluntarily provides their e-mail address on the Form I-9, the provided e-mail address MUST be entered into E-Verify. This was soon followed by E-Verify using this e-mail address to contact your employee directly if a TNC is issued, notifying them that the employee should have provided this information to them. If their employer did not provide this, or if they had any other complaints about their employer, the memo includes contact information in order to report employee complaints.

 

As more employers enroll in E-Verify, consider enrolling, or may be required to enroll as a Federal Contractor, it becomes increasingly important that they understand all of the nuances that participation in E-Verify entails.  Long gone, clearly, are the Pollyanna days of the Pilot Program when E-Verify appeared to provide employers with a sense of confidence in the validity of the documents provided by their employees without the risk of fines for any errors, if they followed the prescribed process to the letter. Many employers felt as though they were being "extra compliant" with the employment eligibility verification rules of IRCA if they were using E-Verify. This may have created a false sense of security for employers in matters related to I-9 and E-Verify practices. While ICE may be satisfied that an employer's workers are eligible to work in the United States, the OSC may still have concerns that an employer is engaging in discriminatory practices by requiring specific documentation to prove employment authorization.

 

Whether OSC concerns are well-founded or not, a government investigation can create a major disruption for employers and erode the trust and confidence employees have in their employer. Ultimately, it is common for employees to assume that the employer must have done something wrong if they are being investigated. The E-Verify Memorandum of Understanding ("MOU") signed by all participating employers, gives the government permission to share information with other government entities and to interview its employees directly. In addition, participating employers already agree in the MOU to participate in any investigations regarding its compliance with E-Verify rules.

 

So what can employers do to help prevent or prepare for these investigations?

1. Put your policy and procedures for I-9 and E-Verify Compliance in writing. Include the employee's responsibility to support these efforts.
2. Include a separate document in the I-9 process for employees to certify that they reviewed the list of acceptable documents for the Form I-9 and were given the opportunity to choose the documentation they provided to prove identity and employment authorization in Section 2 of the Form I-9.
3. Train all individuals completing the Form I-9 on behalf of your organization at least annually, and any time there are changes. Training should be performed by an expert and attendance documented.
4. Establish an effective audit and review process to ensure that policy and process are being followed properly and document all findings.
5. Communicate to your employees at least annually regarding your compliance practice and solicit their feedback regarding their experience and concerns.

Should an employer be subject to an investigation by OSC, we recommend you engage immigration counsel immediately to:

1. Explain the scope of the interviews to employees.
2. Assist in preparation of communications to address employee questions and concerns about the investigation.
3. Ensure employee interviews are attended by counsel to provide support for your employees during this stressful process and ensure that the scope of questioning is appropriate to the investigation.
4. Keep the scope of the investigation within the parameters of IRCA compliance.

Mandatory E-Verify for all employers seems a likely addition to any immigration reform that may be passed in the near future. With the growing enforcement within E-Verify, as well as I-9 compliance, Maggio + Kattar clients are advised to review their current employment eligibility verification practices with their attorney and develop processes and procedures to help ensure compliance and prepare for audits.

On November 4, 2013, the District Court in the Western District of Washington approved a settlement agreement regarding implementation of the so-called "asylum clock." The asylum clock refers to the method by which government agencies calculate the 180-day waiting period before an asylum applicant cannot apply for work authorization.  The class action litigation challenged specific government procedures for administering the asylum clock for individuals in removal proceedings.  

 

As a result of the litigation and proposed settlement, the following reforms will be instituted: an individual will now be permitted to file an application for asylum at the immigration court window in order to start the clock, instead of waiting to file the asylum application in open court; more time will be allowed to prepare an expedited asylum case (a case referred to the immigration court from the asylum office) without stopping the clock; and the clock will be restarted following a successful appeal and remand from the Board of Immigration Appeals to the Immigration Judge.  

 

Further reforms include providing notice to the applicant of the right to reschedule a missed asylum interview and providing additional time to show good cause for having missed the interview; providing written notice of the status of the clock in removal proceedings; and the creation of a process for challenging improperly denied employment authorization applications.

 

These reforms will offer tangible benefits to asylum applicants beginning on December 3, 2013.

On December 10, the Supreme Court will hear oral argument in the consolidated Child Status Protection Act (CSPA) cases Cuellar de Osorio v. Mayorkas and Costelo v. USCIS. At issue in this case is a provision in INA � 203(h), and whether the benefits for aged-out derivative beneficiaries in INA � 203(h)(3) are available to derivative beneficiaries of all visa petition categories, not just the Family 2A category, as the government has argued.

 

The Board of Immigration Appeals (BIA) has narrowly construed the statutory language in INA � 203(h), finding that the term "conversion" has consistently meant that a visa petition converts from one visa category to another without the need to file a new petition, and that priority date retention has always applied only to subsequent visa petitions filed by the same petitioner. The practical impact of the BIA's interpretation is that, in most cases, an applicant who has aged out of benefits will require a new immigrant visa petition to be filed, and will not be able to retain the original priority date, thus placing this applicant at the end of a very long waiting list for immigration benefits.

 

Immigrant advocacy groups have submitted amicus briefs demonstrating the deep impact that this case has on families who have been separated and waiting in line for a visa for many years. There is a deep split among the various U.S. Courts of Appeal on this issue, thus, it is expected that the Supreme Court's decision will resolve the proper interpretation of the language in the statute.

In preparing for international travel, it is important for each foreign national to review their and their family's travel documents to ensure that they are prepared to return to the U.S. following a trip overseas. Depending on an individual's status, different documentation will be required, some of which may be time-consuming to obtain. If there are any questions as to the implications of travel, it is imperative that issues be discussed with your M+K attorney. Specifically, any prior visa refusals, visa overstays or criminal convictions are of paramount importance. Below, we summarize a few key highlights impacting business travelers to the U.S., nonimmigrant visa holders, asylees and refugees, applicants for legal permanent residence and certain, legal permanent residents.    

 

Travelers to the U.S. pursuant to the Visa Waiver Program 

In Singapore, approximately a third of the 5.4 million residents are foreign nationals. Consequently, it has a very well developed work permit system focused on ensuring that each foreign national has the appropriate credentials for the position and is being paid a prevailing wage rate for the position. There are different categories of employment pass dependent on the salary level, job scope and work experience, and educational qualification.   However, all foreign national applicants must meet the minimum criteria for qualifying salary, tertiary education and experience and supporting documents such as educational certificates and marriage and birth certificates must accompany each application. There is an efficient online application conducted under the authority of the Singapore Ministry of Manpower (MOM) with many electronic applications are processed within 7 business days. For paper applications, the processing time is significantly longer and presently is between 4-6 weeks.

 

Some of the available categories for an Employment Pass in Singapore include the P1 with a minimum monthly salary >S$8000 as well as academic qualifications, like university degrees; P2 must earn fixed monthly salary >S$4500; and, possess acceptable academic qualifications, like university degrees; and Q1 must earn fixed monthly salary >S$3000 and possess acceptable academic qualifications, such as university degrees or trade certificates. All applications must be sponsored by a company incorporated in Singapore.  

 

Beginning in January 2014, the minimum qualifying salaries for EP holders (Q1 Pass) will be increased from the current S$3000 per month to S$3300. This is aimed at reducing the competition for entry-level jobs for young graduates; more experienced applicants are expected to earn higher salaries in order to qualify, commensurate with specific work experience.  

 

Another new immigration rule to be implemented in August 2014 is the Fair Consideration Framework. This initiative is focused on creating employment opportunities for Singaporeans particularly as Professionals, Managers and Executives (PME). Firms seeking to sponsor a foreign national in Singapore that have 25 or more employees must advertise the position (applicable to all positions paying less than S$12000) a month on a new jobs bank administered by the Singapore Workforce Development Agency for at least 14 days prior to sponsoring a foreign national for the position.  

 

The new rules under the Fair Consideration Framework (FCF) require employers to consider Singaporeans fairly before hiring Employment Pass (EP) holders. Firms with discriminatory hiring practices will be subject to additional scrutiny and may have their work pass privileges curtailed. The proposed changes are expected to increase job market transparency and promote the employment of Singaporeans.

 

*Maggio + Kattar extends its sincere thanks to Lee Wong, Dominic Choo and their colleagues at Asian Welcome Pte.Ltd for providing this update on immigration to Singapore. For future global updates, please visit our website at: http://www.maggio-kattar.com/corporate-immigration/global-visas.

Meg Hobbins taught the "Nuts and Bolts of Naturalization" at the District of Columbia Bar Association's Continuing Legal Education program on November 5, 2013.

 

On December 5, 2013, Anna Gallagher will teach at the District of Columbia Bar Association's Continuing Legal Education program on 

 

Alix Mattingly and Elizabeth Carlson lectured to law students at George Washington University on immigration law on October 29, 2013.

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


Maggio + Kattar, P.C. | 11 Dupont Circle, N.W. Suite 775 | Washington, DC 20036
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