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Mandatory E-Verify????
By: Donald Berner

Immigration issues continue to be a hot topic in Washington.  As immigration reform questions circulate through Congress, particularly surrounding the DACA/Dreamer issue, a bill to make E-Verify mandatory for all employers arrived on the House floor.  The bill would phase in the required use of E-Verify over a two-year period.  It is still too early to tell if the bill will survive, but its introduction shows a continued emphasis on border control by the Republican in Congress and the Trump Administration.  Stay tuned for further updates. 

Trump Administration Makes Significant Change to Immigration Renewal Filings
By: Donald Berner

USCIS issued a memorandum on October 23rd that rescinded prior guidance established by the Bush and Obama administrations related to extensions of temporary work visas.  The prior guidance directed USCIS case officers to approve extension requests so long as the main facts of the extension were in line with the original filing.  The new guidance tosses out this presumption in favor of approving those extension requests and indicates that all filings will be subject to the same scrutiny as the initial filing.  In essence, the Trump Administration does not want to give credence to any previously approved filings and will review them with fresh eyes upon the request for an extension. 

The policy memorandum is yet another indication of the Trump Administration's negative viewpoint with respect to the use of foreign labor.  In keeping with the theme of the Buy American Hire American order issued by President Trump, this policy memorandum clears the way for USCIS case officers to reject extension requests in hundreds of thousands of previously approved work visas.  The impact of the memorandum is hard to predict at this point, but does point to a continued tightening and restricting of employer access to work visas for foreign workers. 

H-1B Filing Season Coming Up
By: Donald Berner

The annual H-1B visa filing cycle is coming right up.  Employers will be able to file H-1B applications for the fiscal year 2018 cap/quota period after April 1, 2017.  USCIS will begin taking applications on April 3, 2017, and if the cap is reached during that first week, USCIS will conduct a lottery to determine which applications will be accepted under the cap. 

For those employers looking to obtain an H-1B visa for a worker, now is the time to get those applications ready to submit for the upcoming lottery. 


USCIS Premium Processing Suspended
By: Donald Berner

USCIS has announced a suspension of the premium processing program for H-1B visa applications starting on April 3, 2017.  The premium program is a means by which applicants for H-1B visas can shorten the standard processing time of approximately six months to just a few weeks.  The program is funded by the additional filing fees paid with the application.  With the upcoming cap lottery process and the current significant backlog in pending H-1B applications, USCIS is temporarily halting the acceptance of applications filed for premium processing.  This suspension is expected to last a few months, but the actual length is hard to project.  Stay tuned as USCIS works through its annual H-1B visa lottery process as changes to the premium processing suspension are likely.

Department of Justice Adjusts Penalties for Inflation
By: Donald Berner

The Department of Justice ("DOJ") published a new set of civil penalty amounts for a variety of civil matters enforced by the DOJ that are set to go into effect for violations occurring after August 1, 2016.  The new penalty amounts were adjusted for inflation from the prior penalty amounts which in some cases had not been adjusted by the DOJ for quite some time.  As a result, the adjustments to the penalty amounts in some areas were significant. 

As part of the inflation adjustment, the DOJ increased the penalty amounts for the various immigration related violations enforced by the DOJ.  These penalty amounts, initially established between 1980 and 1996, had never before been adjusted.  Of note, the DOJ adjusted the penalty amounts for I-9 paperwork violations from a range of $110 to $1,100 per violation up to a range of $216 to $2,156 per violation.  In addition, the penalty amounts for employing aliens not authorized to work in the United States were also increased significantly.

Employers should make note of these increases related to the I-9 process.  If you haven't audited your I-9 records in some time, now would be a great time to do so in advance of these increased penalty amounts. 

E-Verify Expansion
By: Donald Berner

The trend of states requiring the use of E-Verify continues as Tennessee will require private employers with 50 or more employees to utilize E-Verify after January 1, 2017.  While of not much consequence for Kansas employers (unless you have Tennessee employees), it is notable that the march of states mandating the use of E-Verify continues. It is also likely that any immigration reform at the federal level (whenever that occurs) will require employers to utilize E-Verify.  With the trends heading in the direction of mandatory participation down the road, employers should consider the pros and cons of voluntarily opting into the system in advance of any mandates. 

New STEM OPT Regulations Take Effect in May
By: Donald Berner

The new STEM (Science, Technology, Engineering, & Math) OPT regulations issued in March create a new set of requirements and benefits for students and employers seeking to participate in the program.  For those not familiar with STEM and OPT, these concepts relate to foreign students and work authorization which typically applies after the student completes a degree program.  The traditional OPT, which stands for optional practical training, program allows the foreign student up to twelve months of work authorization per program of study (degree level) to obtain practical on-the-job type experience before returning home.  There are special rules for foreign students within the STEM degree fields that allow the OPT time to extend out an additional 24 months.  This extra OPT time comes with some strings attached for the employer.

The primary addition in the new rule relates to training plans and evaluative processes.  Foreign students must now have a training plan that sets out goals for the STEM practical training period.  The plan requires a description of the skills, techniques and knowledge the student will obtain through the opportunity with the employer as well as an evaluation process and a description of how the student will be supervised.  These new requirements take effect for STEM extensions filed by students after May 10th. 

For more information on the new STEM program click here

Expanded Deferred Action Program Remains on Hold
By: Donald Berner

In November 2014, President Obama expanded the deferred action program currently in effect.  The expansion would have extended eligibility to participate in the program to about 4 million more individuals currently in the U.S. illegally.  The program extension is currently on hold due an injunction issued by the U.S. District Court for the Southern District of Texas.  The issuance of the injunction was appealed by the federal government.  The Court of Appeals upheld the injunction in a decision issued earlier this week. 

This means the expansion of the deferred action program remains temporarily blocked from implementation until the trial of the matter takes place or the federal government successfully appeals the decision.  Stay tuned.  It will likely be months before this issue resolves itself. 

DHS Issues Proposed STEM OPT Rule
By: Donald Berner

The Department of Homeland Security (DHS) issued a proposed rule providing for the extension of optional practical training (OPT) time for foreign students that obtain degrees in STEM fields of study.  STEM stands for science, technology, engineering and math.  The new regulation proposes an additional twenty-four month extension to the existing twelve month OPT period.  This extension will be made available for each degree level should the individual obtain a bachelors degree and then later obtain a masters degree.  DHS is currently preparing a listing of eligible STEM fields that will be permitted to participate in the program and will provide that information at a later date. 

The proposed rule also imposes a few requirements on employers participating in the program.  Employers will be required to participate in E-Verify, implement mentoring and training programs to further the attainment of the practical experience contemplated by the program, attest to having the resources to provide the mentoring and attest that no U.S. workers experienced job losses as a result of employing the individual participating in the OPT program.

Stay tuned for the finalization of the rule and the detailed listing of STEM degree fields.   

H-1B Cap Update for 2016
By: Donald Berner

USCIS announced the cap for fiscal year 2016 (start date of October 1, 2015) has been reached.  For all those submitting applications for an H-1B, a lottery will be conducted to choose the applications to be considered for the 85,000 slots.  The lottery process is likely to take several weeks as USCIS processes the applications and conducts the random selection process.  Stay tuned and keep your fingers crossed. 

Work Authorization for H-4 Visa Holders
By: Donald Berner

The USCIS announced recently that certain H-4 visa holders (dependents of H-1B visa holders) will become eligible to receive work authorization.  This new rule takes effect on May 26, 2015 and is limited to a specific category of H-4 visa holders.  If the H-4 visa holder's spouse has an approved I-140 (permanent resident application) or has an H-1B extension in place beyond the six-year limit for H-1B status, the H-4 visa holder can apply for and receive an employment authorization document to allow them to work.  This is a significant change for the dependents of those individuals pursuing permanent residence as it will allow them the opportunity to obtain employment as well.  Keep in mind, however, that this rule has a very limited application and does not allow all H-4 visa holder's to obtain employment authorization.  If you qualify under this rule, now is the time to begin preparing the application for employment authorization to be ready to file on May 26th when the new rule takes effect.   


Deferred Action Program Expansion Kicks Off
By: Donald Berner

The first of the expanded immigration benefits granted by President Obama's executive action is slated to begin processing applications next week.  The Deferred Action for Childhood Arrivals (DACA) program in its new expanded form will provide benefits to a wider range of potential applicants.  This expansion is likely to lead to a new wave of individuals seeking deferred action related benefits which includes a work authorization document to allow these individuals to work legally in the U.S.  This is likely to lead to another wave of your employees receiving new work authorization documents later this year. 

As a reminder, DACA is for those individuals that entered the U.S. prior to reaching age 16.  The DACA program has been modified to allow individuals of any age to apply so long as they meet the requirement of having entered the U.S. prior to age 16 and have lived in the U.S. continuously since January 1, 2010 (the prior version of the program required continuous residence since June 15, 2007).

Immigration Reform Update
By: Donald Berner

Now that the State of the Union address is in the rear-view mirror, it's a good time to peek in on just where things are at with respect to immigration reform.  As you might recall, President Obama announced a series of changes he intended to implement by Executive Order in November of 2014 (read about them here.)  So just where are things with respect to all these changes?  The answer is a simple one -- UNDER CONSTRUCTION.  For those expecting immediate change, immigration reform has been a bit of a sore subject.  As you will remember, comprehensive immigration reform has been a topic of discussion throughout President Obama's presidency.  In fact, Congress was debating comprehensive immigration reform following the election cycle in 2012.  The key takeaway is that while immigration reform gets a lot of discussion and press, actual progress is hard to come by and slow to arrive.  With that said, deferred action related information is likely to arrive in February.  In addition, the new deferred action program targeted at parents of children born in the U.S. will likely arrive in the late spring or early summer (May/June).  What will be interesting to watch is how these upcoming executive changes will motivate Congress to act.  So while things are likely to remain quiet in early 2015, expect immigration reform to be a hot topic again as we move towards spring.  As always, stay tuned. 

H-1B Season is Approaching
By: Donald Berner

Now that the calendar has turned to 2015 it is time to begin considering the rapid approach of the H-1B filing window.  The H-1B visa is the most commonly utilized work visa for employers.  While USCIS has not issued any information yet with respect to the filing window and lottery process, employers should expect 2015 to be no different than the last couple of years.  The H-1B cap for the 2016 fiscal year (starts on October 1, 2015) will be hit in the initial filing window.  This means employers seeking a H-1B visa for an employee will need to be prepared to file the application by April 1, 2015, to participate in the lottery for a visa.

As a word of warning, if you have individuals working for you that are utilizing OPT (Optional Practical Training) this blog posting applies to you.  If these individuals haven't asked yet, expect them to be asking soon about an H-1B filing in this upcoming filing window.  Considering the need to file by April 1, 2015, it isn't too early to start talking through these issues and planning for any filings. 


Court of Appeals Weighs in on H-2B Wage Rule
By: Donald Berner

In a recent decision, the U.S. Court of Appeals for the Third Circuit rejected the Department of Labor's (DOL) 2009 guidance regarding the use of private employer surveys for determining prevailing wages under the H-2B program.  The Court found that the usage of the private wage surveys had the effect of depressing wages which harms H-2B workers and U.S. workers.  The Court also found a harm to U.S. employer that could not afford to do a private wage survey and were required to use DOL's wage data which was higher than the private survey data.  The likely effect of the decision will be a push to the use of the DOL's wage data rather than private surveys. 

The decision is just another step down the windy and painful road of prevailing wage complications for H-2B employers.  Stay tuned as DOL plans to engage in further rulemaking on the H-2B prevailing wage front.

President Obama to Announce Executive Action on Immigration
By: Donald Berner

President Obama is scheduled to announce his executive action on immigration tonight in a nationally televised speech.  The details of the plan will become more clear in the coming days; however, the early information seems to indicate an expansion of the already existing deferred action program.  This latest executive action (or frankly inaction) will expand coverage to another group of illegal aliens estimated to number around five million.  Putting aside all the rhetoric surrounding the action, President Obama will simply be promising all those in the eligible population (those living in the U.S. for at least five years) that apply to not deport them.  In addition, those individuals will be able to obtain a work authorization document which will allow them to legally work in the United States.  Stay tuned tonight and in the coming days as we get a better understanding of the full details of the proposal.  The key thing to remember is to tune out the political rhetoric from all sides and focus on the facts and details of the executive action.  From all indications, President Obama won't be doing anything different from what was already done several years ago when the deferred action program was launched.

Foreign Student Employment
By: Donald Berner

As the end of the school year approaches and summer begins, employers utilizing the services of foreign students as employees should take a moment to review the work authorization of those individuals.  It is important to remember the student's presence in the U.S. doesn't necessarily mean the student is authorized to work.  In addition, those students with work authorization may have an expiring work authorization which is equally problematic for employers. 

Foreign students in the U.S. typically obtain work authorization through one of two vehicles -- CPT or OPT.  CPT stands for curricular practical training and OPT stands for optional practical training.  The authority to work under CPT and OPT are dramatically different.  CPT is work authorization provided through the university for a specific employer for a limited time period (typically a semester).  Think of CPT as an internship while going to school.  Also remember that while CPT has a short approval length, the university can typically provide additional semesters of CPT time.  OPT is typically used by students upon completion of a degree program.  Students taking OPT time are not limited to a specific employer and receive an employment authorization document allowing work at any employer.  OPT is also generally for a twelve month period and in most cases cannot be renewed/extended. 

The key message for employers is to keep an eye on the types and expiration dates for work authorization.  Allowing a student to continue working after the expiration of the CPT or OPT time can result in fines for employers and immigration status problems for the student. 

H-1B Filing Season Approaching
By: Donald Berner

As the weather begins to warm-up and spring arrives so does the H-1B filing season.  As most of you know, the H-1B visa program comes with a cap/quota for the year.  The new allotment of numbers under the quota become available on October 1, 2014.  The filing window for these slots opens on April 1, 2014.  With the demand for H-1B visas expected to exceed the quota, the USCIS will conduct a lottery drawing in mid-April to identify which applications will be processed.  If you have the need to obtain a new H-1B visa starting in 2014/2015, now is the time to start the application process.  Don't delay.

Update on Immigration Reform
By: Donald Berner

Following the summer passage of a comprehensive reform bill by the Senate, the idea of immigration reform has stalled out in the House.  After several months of delay, the House has resumed discussion of immigration at some level.  The current plan in the House appears to be a piecemeal approach to the various concepts found in the Senate bill rather than a comprehensive approach.  This strategy should result in a slow and tedious process in 2014.  It is still too early to tell whether this is simply a delaying tactic or a realistic approach to solving all of the issues contained in the Senate version of the bill.  Stay tuned into 2014 as the story continues to evolve. 

E-Verify Returns Post-Shutdown
By: Donald Berner

Now that the shutdown has come to a close and federal workers have returned to their offices, it is time for employers to get all caught up.  One of those catch-up tasks is the entry in E-Verify of employees hired during the federal government shutdown.  Employers should enter all employees hired during the shutdown prior to November 5, 2013.  In response to any question generated in the system related to the late entry, employers should check the "other" box and enter "federal government shutdown" in the text box.  Now would be a good time to double check to make sure all your new hires over the last three weeks have been entered into the system.  Also keep in mind, employees hired now that the government has resumed operations must be plugged into E-Verify in accordance with the normal rules.  The additional time for data entry applies only to those hired during the shutdown.

Undocumented Workers and Criminal Indictments
By: Donald Berner

It is never good when the federal government seeks to criminally indict your company or one of your management team in the context of hiring undocumented workers.  In my experience, this privilege is reserved for those that have gone above and beyond in their efforts to ignore the law.  In a recent case from northeast Kansas a restaurant owner was indicted for his efforts to employ undocumented workers.  His troubles began when the Department of Homeland Security (DHS) sought to review his I-9 forms and found a number of employees without completed I-9 forms.  When DHS instructed him to correct the problem and issued a fine, he ignored the requirement.  Making matters worse, DHS found that the restaurant owner was paying workers in cash and providing them with housing.  These abuses led to the eventual criminal indictment.  While this isn't the only set of circumstances that can lead to a criminal indictment, it isn't an uncommon fact pattern that leads to that consequence.  Most employers work hard to ensure they are in compliance with federal immigration law.  For those employers, the likelihood of a criminal indictment for minor errors is limited to none.  The key lesson for employers is to ensure you complete I-9 forms for all your employees as a baseline starting point.  Once those forms are completed, periodically audit your I-9 file to ensure you have not made errors on those documents. 

Immigration Reform Still Alive
By: Donald Berner

The topic of immigration reform was hotly debated and discussed in the late spring and early summer of this year as the Senate debated a bi-partisan comprehensive reform bill.  The bill was ultimately passed in the Senate and attention turned to the House.  As the attention turned to the House, immigration reform fizzled a bit and moved to the back burner while Obamacare and the fiscal crisis took center stage.  In a little noticed event on October 2, 2013, a group of House members introduced a bill that more or less tracked the immigration reform bill passed by the Senate.  Only time will tell whether this issue gets traction in the House in the next few months.  It may be a slow process considering the fiscal crisis and its related debate(s) was simply postponed until early 2014.  As we move into 2014, this is one worth keeping an eye on.  For the highlights of the Senate version of the bill click here

E-Verify Goes Dark
By: Donald Berner

Employers are not likely to experience much disruption due to the shutdown of the federal government.  With the shutdown now underway, one of those disruptions is now perfectly clear.  Employers using E-Verify will not have access to the system until the shutdown comes to an end.  Employers should continue completing I-9 forms and operating business as usual.  Once the shutdown occurs, the new hires will then be entered into E-Verify.  For those employers with pending tentative non-confirmations, there will be additional time provided to allow for a resolution.  Employers should continue to employ any individuals in this circumstance until such time as the shutdown ends.  Stay tuned for further developments regarding the E-Verify tool. 

Immigration Reform Takes a Leap Forward
By: Donald Berner

Late last week the Senate passed the comprehensive immigration reform bill which now moves the issue to the House.  The bill included provisions related to:

  • The mandatory use of E-Verify by all employers within a five year phase in period;
  • A long-term path to legalization for those currently in the U.S. illegally;
  • A temporary worker program for low-skilled non-agricultural workers;
  • A program to help legalize undocumented farm workers;
  • Minor changes making the H-1B program slightly more restrictive for employers;
  • Additional funding for border security issues; and
  • Funding for a youth jobs program through fees levied on employers using foreign workers.

The next step for immigration reform is for the House to deal with the issue of immigration reform.  While the Senate was taking up the issue of comprehensive immigration reform, the House was simply debating individualized bills targeting specific items of interest to House members.  The step-by-step approach being used by the House has put forward a number of bills addressing similar issues as those covered in the Senate bill.  Over the next several months, the House is likely to see strong debate on this issue.  Stay tuned to see how the House deals with the Senate approved version of immigration reform. 

Immigration Reform Bill Continues to Evolve
By: Donald Berner

The Senate Judiciary Committee continues to work through the markup process on the comprehensive immigration reform bill. The markup process is where the committee works through the bill making revisions prior to the bill arriving on the floor of the Senate for full debate. 

There have been a couple of interesting skirmishes that highlight some areas of disagreement between the parties on the use of E-Verify and the low-skilled worker visas. The current version of the bill contains a four-year phase-in process for the mandatory use of E-Verify with the implementation based on employer size (larger employers sooner). One of the debated changes was an attempt to reduce the phase-in process to eighteen months. This attempt failed, but this amendment will likely be debated again when the bill moves to the full Senate for debate. 

The other skirmish over the low-skilled worker visa focused on the number of visas permitted per year. An amendment was proposed to double the number of visas allowed in the original draft of the bill. This amendment failed to gain support in the committee, but is also likely to be debated again in the full Senate.

The current plan is for the bill to leave the mark-up phase around the Memorial Day holiday time frame. This timetable might be a bit aggressive, but stay tuned as the bill will arrive in the full Senate soon and promises to provide some interesting debate.

Electronic Population of the Employee Section of the I-9 Form
By: Donald Berner

Immigration and Customs Enforcement (ICE) just provided employers with some troubling guidance on the pre-population of the employee information (Section 1) portion of the I-9 form. Employers with robust human resources systems that integrate the I-9 form into the mix may have reason to be concerned about this problematic new guidance.  

According to ICE, the pre-population of Section 1 is not acceptable under any circumstance. The ICE position is that the employee must complete Section 1 of the I-9 form themselves. The notion that the data placed into Section 1 originates from employee provided data carries no weight with ICE. The ICE view is that any pre-population of the I-9 form based on data input into a human resources system is unacceptable. 

Employers that continue to utilize this practice may find themselves at significant risk should ICE conduct an audit of the employer's I-9 process. This change in position is a fairly dramatic shift in ICE's position on this employer practice. It also seems to be a bit of a drastic change, considering the employee is reviewing and signing the data placed into Section 1. One can only hope ICE changes direction on this decision.

Comprehensive Immigration Reform Bill Introduced
By: Donald Berner

The anticipated comprehensive immigration reform bill was finally introduced in the Senate.  The bill contains provisions designed to deal with a variety of immigration related problems in the current legal framework.  The general changes in the law include:

  • A path to legal status for all those currently illegally in the United States
  • Enhanced border security
  • Temporary worker programs for lower skilled workers
  • Increased visa availability for the H-1B program
  • Mandatory use of E-Verify
  • A re-work of the quota system for employment based green cards to allow faster access for prioritized categories of workers
  • A new merit-based visa category to allow USCIS to provide visas to special categories of individuals

The proposal put forward in the Senate has been labelled a compromise package by the sponsoring Senators.  The current thinking is the bill would be debated in the full Senate in late May or early June.  The bill covers a wide-range of areas of concern and seems to truly be a comprehensive attempt to fix a number of areas in the current law that appear to be broken.  There will almost certainly be changes made in the coming weeks as the bill makes its way through the committee process.  The early takeaway for employers seems to be improved access to foreign talent, a clean-up of the existing labor force, and the required use of E-Verify.  We will keep you posted as the bill moves forward in Washington.

H-1B Cap Hit in First Week of Filing Period
By: Donald Berner

The H-1B filing window opened up for FY2014 application filings on April 1st and by the end of the first week of April, the window is now closed.  USCIS will be conducting a lottery in the coming week or so to decide which applicants will be accepted and processed.  The total number of applications received exceed the H-1B by about 40,000.  This is the first year in the last several in which the H-1B quota has been reached in the initial filing window.  Stay tuned as the lottery is conducted. 

Immigration Reform Still Being Discussed
By: Donald Berner

I saw a news story last night about the AFL-CIO (union federation) and the U.S. Chamber of Commerce striking a compromise deal related to guest worker type programs. The gist of the story is that these two adversaries have reached an agreement on how to bring in temporary workers, which is expected to be a big part of any immigration reform legislation. This agreement is a big step forward in the overall effort to create a comprehensive immigration reform package. This agreement may signal a push is underway to finalize the legislative package to bring immigration reform to the top of the legislative agenda in Washington.

H-1B Filing Season Rapidly Approaching
By: Donald Berner

The H-1B visa filing season is upon us.

Each year, USCIS approves up to 85,000 H-1B visas, which permit specialty occupation employees to travel to and work in the United States. This cap of 85,000 visas is not sufficient to meet all of the demand for applications during a given fiscal year. In the last several years, the cap has been reached at some point in the late summer or early fall.

This year the expectation is that demand for H-1B visas will return to somewhat normal levels, as the U.S. economy seems to have rebounded. What does that mean for someone interested in obtaining an H-1B visa for a potential employee? The filing window will open on April 1st for employees to start work on October 1st of 2013, and the basic assumption is that all visa slots for fiscal year 2014 will be used up in the first few days of the filing period. So if you are planning an H-1B filing, don't be late. If your application isn't ready to file for an April 1 arrival at USCIS, you might be waiting until October of 2014.


USCIS Issues New Version of I-9 Form
By: Donald Berner

The USCIS released a new version of the I-9 on March 8, 2013. Employers should begin using the new I-9 form immediately. The old version of the form can continue to be used until May 7, 2013. 

The new I-9 form contains very little in the way of new information employers are required to collect from employees. The primary difference in the new form is the inclusion of email and phone number boxes for the employees in Section 1. While the form itself doesn't designate these boxes as optional, the instructions to the new form reflect that these two boxes are not required. The employee can choose to provide the contact data or simply put N/A in those boxes. 

The real impact of the new look I-9 is the layout. Instead of cramming all the required information into one single page, the employee portion is now one page and the employer portion is now a second page. This allows the form to make it much clearer where data is to be recorded in each area of the form. This change is likely to reduce the number of I-9 forms filled out with data on the wrong line or incomplete forms. 

You can find the new form on the USCIS website in a downloadable PDF here.

Immigration Reform in 2013?
By: Donald Berner

Every so often the topic of immigration reform comes to the forefront in Washington. In years past, the debate would rage for periods of time and then the effort would stall out amidst political fighting over various elements of the "reform" needed. There are a wide-ranging number of interest groups fighting for and against various types of reform. What can we expect in 2013?

Considering the last election cycle and the behaviors of certain demographic groups in that cycle, a comprehensive effort to reform the U.S. immigration system is a bit more likely. At least right at this moment. My thought on that only applies if some other hot potato social or economic agenda item does not interfere with, or take priority over, immigration issues. At this point, several things look likely, to include:

  1. An amnesty-style program of some sort for those currently in the country illegally or without status;
  2. Changes to the visa allocation quotas/system to allow those trying to immigrate the right way to get out of the long lines and backlogs created by a shortage of available slots;
  3. The inclusion of a guest-worker type program to allow for lower-skilled workers to come to the U.S. to fill temporary needs for lesser-skilled labor; and
  4. A requirement that employers verify the legal status of workers (read this to mean mandatory E-Verify for all employers).

The idea of immigration reform typically brings out vocal advocates on all sides of the equation. Stay tuned over the next six months as things heat up in      Continue Reading...

Dealing with Work Authorization Concerns
By: Donald Berner

The recent news regarding the Immigration and Customs Enforcement (ICE) actions in Wichita involving a local McDonald's franchise highlights the risk for employers with respect to employee work authorization. This arena involves a wide-ranging variety of fact patterns for employers to work through as no two cases are ever exactly alike. The key points for employers to consider are:

  • I-9:  Make sure your I-9 process is being conducted properly and that your I-9 documents are being fully and accurately completed. In addition, conduct periodic audits of your completed I-9 collection to identify any shortcomings in your process and follow-up on those shortcomings to ensure the process is working as intended.
  • Stray Information:  Promptly respond to all information that calls into question the work authorization of one of your employees. This can be a very tricky issue for employers since there can be varying levels of information presented which may or may not be legitimate. The source of the information should be evaluated in determining the proper response to the situation. The key point for employers on this issue is not to bury your head in the sand and ignore the information. Ignoring can lead to a very negative outcome at some point in the future.
  • Social Security Problems: While somewhat like the stray information category, there are a number of ways a social security number problem can arise. Anytime the concern is generated by some sort of action by the Social Security Administration,      Continue Reading...
U.S. Attorney Serves up an Unhappy Meal to Wichita McDonald's Franchise
By: Donald Berner

On a night when most of the kids in Wichita are going door-to-door dressed in scary costumes declaring trick or treat, the U.S. Attorney's office served up a very scary and unpleasant trick on a local Wichita business. The press release issued by the Immigration and Customs Enforcement agency (ICE) reflects that the business was charged with one felony count for knowingly accepting a fraudulent identification document.

At some point in the past, the employer was made aware of an employee with a bad social security number. The employer followed up by asking for documentation to prove the employee was authorized to work in the U.S. The employee provided a permanent-resident card, and the employer updated the employee's I-9 documentation.

ICE took the position that the employer was aware the permanent-resident card  was not legitimate because of the speed with which the employee obtained the documentation. The ICE press release indicates a plea agreement is in the works, and the company will pay out $400,000 in fines and forfeitures to the federal government as a result of the agreement. 

Read the ICE press release here.

J-1 Visa Waivers for Physicians Under the Conrad 30 Program
By: Donald Berner

The new government fiscal year started on October 1st which means it is time to begin preparing and filing J-1 visa waiver applications for physicians under the Conrad 30 program.  The program is used by medical employers (hospitals, clinics, practice groups, etc.) to hire foreign physicians to work in medical provider shortage areas (HPSA or MUA) or outside of shortage areas but providing care to residents within shortage areas.  The program provides Kansas employers with a great tool to recruit physicians to these shortage areas.  For more information click here.

Foreign Students and Work Authorization
By: Donald Berner

One of the more confusing work authorization scenarios I see clients dealing with relates to when a foreign student is authorized to work in the United States.  The default rule is that a student in the U.S. with an F visa (the typical one used by students) is not permitted to work.  Students typically gain the ability to work in limited ways.  A student may gain work authorization via a curricular practical training program (CPT) or via an optional practical training program (OPT).  These programs differ quite a bit.  A student working via CPT will have the ability to work for a limited period of time and for a specific employer as part of a school sponsored training program.  A student working via OPT will have an employment authorization document (EAD) which will allow a much longer period of employment with no specific employer restrictions.  If your company employs a foreign student, make sure you carefully evaluate whether the individual has proper work authorization documents to work for your company and ensure you carefully note the expiration of that work authorization.   

Immigration Debate Likely to Continue
By: Donald Berner

What better time to consider the issue of immigration than on the eve of the 4th of July.  As our nation of immigrants gathers together to celebrate the birth of our nation, the issue of immigration reform should continue to garner attention over the next year.  In the last month, the U.S. Supreme Court upheld the central piece of the controversial Arizona immigration statute and the Obama White House announced an intention not to enforce deportation against a selected group of young illegal aliens.  Both events have sparked significant interest in the issue around the country and should fuel a continued debate over immigration reform.  While the Supreme Court's upholding of the "show me your papers" provision seemed to garner more attention, the enforcement suspension is likely to result in a much larger impact to employers and illegal aliens.  The Department of Homeland Security (DHS) will provide more detail in the coming weeks regarding President Obama's announcement, but the short version is that a status called deferred action will be conferred on those who meet the limited eligibility criteria set forth by DHS.  Once that status is granted, those individuals will be able to apply for and receive work authorization documents.  As DHS publishes the program criteria, there is bound to be a significant amount of attention paid to this issue.  This upcoming debate may provide some momentum for a more comprehensive set of immigration reforms.  For more information on the enforcement suspension click here.

Green Cards, Hostile Environments, and March Madness
By: Donald Berner

Who would've thought March madness would provide an opportunity to comment on immigration law and harassment issues? 

During yesterday's first round tournament game, a Kansas State player was fouled and went to the free throw line to shoot two free throws.  Like any good crowd, the Southern Mississippi fans tried to get in his head to cause him to miss the free throw.  The problem is they whipped out the "Where's your green card?  Where's your green card?" chant because the Kansas State player is Hispanic.  The player is actually from Puerto Rico and grew up in Miami.  And he is a U.S. citizen, just as surely as the misguided Southern Miss students who originated the chant. 

While the idea on the basketball court is to create a hostile environment for your opponents, it isn't likely that a "Where's your green card?" chant is something Southern Miss administrators wanted to hear.  This type of behavior is never acceptable, whether at a sporting event or in the workplace.  These types of comments are becoming more commonplace, particularly as the various state legislatures debate and/or enact legislation relating to immigration and worker documentation.  And it's comments like these that employers dread.  Imagine if employees in your workplace were treating Hispanic co-workers in this manner.  In the case of the basketball game, Southern Miss will take some disciplinary actions against its students and that is likely to be the end of it.  In the workplace, those kinds of comments may lead to an EEOC charge and maybe even a slam dunk.  

For those who want to see the video click here.  You'll have to turn up      Continue Reading...

H-1B Filing Season Set To Begin
By: Donald Berner

The H-1B visa filing period for fiscal year 2013, which begins on October 1, 2012, will open on April 2, 2012.  Employers may begin requesting H-1B visas on behalf of qualified foreign individuals who intend to start work on October 1, 2012.  In the last few years, the H-1B quota for the fiscal year has remained unused through the late fall or early winter.  Historically, the H-1B quota for the fiscal year was exhausted by the applications filed in the early April filing window.  While the usage rate for FY2013 H-1B visas is hard to predict, employers would be wise to consider filing any needed H-1B applications in April to avoid ending up with no ability to access an H-1B visa later in the year due to the annual quota being hit. 


Be My Valentine and Dump That I-9
By: Donald Berner

So first off, there is almost no connection between the love we might express on Valentine's Day and I-9 forms.  If any of you say I-9 form and love in the same breath, your sanity will surely be questioned; however, if we talk about throwing out old I-9 forms, we might be able to insert I-9 and love into the same sentence.  If you are not destroying I-9 forms for former employees, it is time to consider your I-9 retention practices.

As all of you know, employers are required to complete and maintain I-9 forms and supporting documents for each employee.  In conducting audits and visiting with HR teams, the issue of maintaining (retaining I-9 forms) is an area where employers tend to err.  It seems that a lot of employers maintain I-9 forms forever when there is no requirement to do so.  The I-9 retention rules are fairly straight forward.  An employer is required to retain an I-9 form for any current employee.  Employers are also required to maintain I-9 forms for a minimum of three years.  Once the employee terminates employment with the company, the I-9 must be retained for at least one year following termination.  While a little convoluted, the rule is fairly simple.  The I-9 must be retained for at least three years and for at least one year following an employee's termination of employment.  Here are a couple of examples to help clarify:

Employee 1 starts work on August 1, 2007 and remains employed today.  Since the employee is a current employee we continue to retain the      Continue Reading...

New Immigration Laws Likely On Legislative Agenda
By: Boyd Byers

There are an estimated 65,000 illegal immigrants in Kansas. As we previously reported, Kansas lawmakers are expected to debate tougher laws targeting these immigrants when the 2012 legislative session opens on Monday, January 9. One proposal likely to receive serious consideration is a requirement that companies doing business with the state use the federal E-Verify system to check workers’ status. Business groups have expressed concern about the cost of compliance with such potential new hiring and employment requirements. We’ll keep you posted on these and other legislative developments that affect employers in Kansas.

Supreme Court News
By: Boyd Byers

One perk of being on the U.S. Supreme Court is that you get to decide which cases you want to hear and which ones you don’t. Most cases cannot be appealed to the Supreme Court as a matter of right. So a losing party seeking Supreme Court review must file a petition for writ of certiorari, which must be granted by at least four of the nine Justices. (In case you're wondering, which you probably aren't, "certiorari" is a Latin word meaning "to be more fully informed.") The Court “grants cert.” to only about one percent of the petitions.

Today the Supreme Court agreed to review one employment-law case and declined to review another. The High Court agreed to review the high-profile case involving the 2010 Arizona immigration law that has been copied by several other states. The Court will decide whether federal immigration law preempts a state immigration law that, among other things, makes it a crime for an undocumented alien to seek employment. However, the Supreme Court declined to review a Tenth Circuit Court of Appeals ruling that federal sector Age Discrmination in Employment Act (ADEA) claims are subject to the same "but for" causation standard as private sector ADEA claims. 

The End of the Road for FY2012 H-1B Filings
By: Donald Berner

The USCIS announced that the H-1B cap for fiscal year 2012 was reached last week.  This means no more H-1B visas will be available for employer use until October 1, 2012, when fiscal year 2013 visas become available.  The filing period for the 2013 fiscal year H-1B  visas will begin on April 1, 2012.  In the meantime, employers that had been considering the use of an H-1B visa should begin evaluating other immigration options.

These numbers may signal a rebound in hiring of the professional employees this visa category represents.  Last year the H-1B cap was not reached at the end of January.  This upswing in hiring of H-1B visa candidates is a heads up to those planning to hire H-1B candidates next year.  If your company has a need to hire H-1B candidates, it is advisable to be prepared to take action on those hiring plans with an H-1B application filing in April 2012.  Prior to the economic downturn, the norm was for all H-1B slots for a fiscal year to be allotted during the initial wave of filings in April.  We may be returning to that type of environment for H-1B visa applications.    

For the text of the USCIS press release click here.   

Will More Green Cards Become Available?
By: Donald Berner

The process for obtaining a permanent resident card (green card) can be a time consuming process filled with years of waiting in line for a spot under the currently limited quotas.  The waiting time varies depending on (1) the category under which the individual is eligible for permanent residence and (2) the individual's home country.  Federal lawmakers recently introduced a bill called The Fairness for Highly Skilled Immigrants Act.  The bill is designed to increase the quotas for a variety of categories.  This would allow persons currently waiting in lines lasting years to move through the process more quickly.  It would also allow future applicants for permanent residence in the United States to acutally obtain permanent residence in a timely fashion.  Stay tuned as this bill is sure to be debated and discussed in the coming months.

More Bad News About I-9's
By: Donald Berner

Immigration and Customs Enforcement (ICE) is continuing to issue Notices of Inspection (NOI) to employers across the country.  These ICE NOIs require employers to provide I-9 forms and various payroll related information to ICE.  The increase in these type of inspections being conducted by ICE is significant.  Over the last three to four years, the number of inspections has more than tripled.  For employers getting a NOI, it can be a costly experience.  While some of the inspections may be being conducted on a random basis, the more likely sceenario is that ICE has targeted the employer based on tips, complaints, or leads developed from a variety of sources. 

Employers should respond carefully upon receiving an NOI from ICE.  The real preventative medicine for employers is to conduct an audit of your existing I-9 documents as well as review your I-9 completion practices to ensure the documentation is all in order.  In addition, employers should consider the pros and cons of signing up to participate in the E-Verify system as part of the employer's comprehensive compliance strategy.

H-1B Cap Update for Fiscal Year 2012
By: Donald Berner

The H-1B visa, the one most commonly used by employers to bring specialized workers to the United States on a temporary basis, is subject to an annual cap/quota.  The annual counting period tracks the federal fiscal year schedule and runs from October to September.  Employers may apply for employee start dates up to six months in advance of the date.  In a nutshell, employers can start seeking numbers against the fiscal year cap starting in October as early as April 1.  For example, employers could request an H-1B visa on behalf of an employee on April 1, 2011, with a starting date of October 1, 2012 (part of fiscal year 2012).  After six months of usage, approximately 20,000 numbers remain available.  If this year follows the pattern of last year, the remaining numbers under the cap are likely to be used up around the end of December to the end of January time frame. 

Here is the link to the cap counting page on the USCIS website.

Court Is Now In Session
By: Boyd Byers

October is my favorite month of the year.  Warm, sunny days, followed by cool, crisp nights.  Colorful foliage.  Fall festivals.  College football.  Playoff baseball.  And, of course, the start of another U.S. Supreme Court session.

The Supreme Court reconvened today, the first Monday in October.  There are several employment-law-related cases on the docket.  Perhaps the most-anticipated case before the Justices is the legal challenge to the Affordable Care Act (health care reform law).  Another closely watched case will address whether Arizona’s tough immigration law is preempted by federal law.  The High Court will also decide whether the “ministerial exemption” to the ADA applies to a religious teacher at a church school, and whether states can be sued under the FMLA’s “self-care” provision for failing to provide employees with 12 weeks of unpaid leave for their own serious health condition.  Kansas Employment Law Blog will keep you up to date as these and other cases affecting employers are decided.     
E-Verify For Everyone?
By: Donald Berner

Last week a new bill made its way out of the House Judiciary Committee in Washington and now is in a position to come before the House as a whole.  The bill, titled the Legal Workforce Act of 2011 (HR 2885), would require all employers to participate in the E-Verify system.  Currently, participation is mandatory only for certain federal contractors and employers located in states with mandatory E-Verify state law provisions.  While the bill still has a long journey ahead of it before becoming a law, it is something employers should be considering as they decide whether to voluntarily opt in to using the E-Verify system.  As usual, the political rhetoric in Washington surrounding immigration-related topics is heated.  The difference this go-around is the weak economy and the commentary about ridding the workforce of illegal aliens being a jobs package for unemployed Americans.  Stay tuned as the debate moves towards the full House in the near future.  To catch a glimpse of the political commentary click here for the press release issued by the bill's sponsor. 

Immigration Scam Artists
By: Donald Berner

Earlier this summer several federal government agencies announced an initiative targeting immigration services scams.  While this initiative makes reference to protecting innocent and unsuspecting immigrants, the same can be said for some employers.  These immigration services sometimes convince employers they are capable of solving their work authorization problems for some of their employees.  In most circumstances, the employer tries to help these employees and can be duped by these scam artists just like individual immigrants.  If your company is approached by a service promising to provide you with "legal" workers, remember the old adage:  If it sounds too good to be true, it probably isn't true.  If this happens in  your workplace, you should consult your own legal counsel to ensure you are not unwittingly being put into a risky position. For text of the news release click here.

Some Thoughts on I-9 Compliance
By: Donald Berner

The I-9 form has become a routine part of the hiring process.  Most employers don't give much thought to the I-9 once the hiring process is completed.  The form is filled out and promptly tossed into the I-9 file, never to be seen again (unless the government visits).  If this describes your company, you might consider changing that practice.  It is a good idea to conduct an audit of your own I-9 documents on a periodic basis to ensure your company is in compliance.   The penalty for failing to properly comply with the I-9 requirements ranges anywhere from $110 to $1,100 per violation.  This can add up extremely fast.  Here are a few things to consider as you review your company's I-9 documents:

1.  Did the employee completely fill out the top section of the form?  Make sure each line is completed and that the employee signed and dated the document.

2.  Are the entries in the document section fully completed?  Make sure each of the lines is completed to the fullest extent possible.  One common error in this part of the I-9 is the failure to list the issuing authority for the document.

3.  Are you properly utilizing List A, B, and C documents?  Remember -- List A is enough by itself.  If you use documents from List B or List C, they are used as a package.  Your form should either have one document in List A or a document in List B and C together. 

4.  Consistency check the documents against the      Continue Reading...

I-9 Audit Sweep Set to Begin
By: Donald Berner

ICE (Immigration and Customs Enforcement) recently announced the start of another large scale effort to conduct I-9 audits across the country.  The most recent announcement indicated ICE would conduct over 1,000 audits in the later part of this summer which is similar to a large wave of audits conducted in February of this year.  This most recent wave signals a continuation of the strong commitment made by President Obama to ensure employers were in compliance with the I-9 requirements.  Employers should expect to see an increasing number of these types of audits as ICE has established a new centralized inspection center to allow for the processing of higher volumes of audits than in the past.  If you haven't done so lately, now would be a good time to self-audit your own I-9 collection to best position your company should you end up on the list of lucky employers being audited.

Comprehensive Immigration Reform -- Is it Back on the Table?
By: Donald Berner

President Obama raised the issue of immigration reform during a recent speech in El Paso.  While no specific legislation has been introduced, the White House continues to highlight a set of goals for comprehensive immigration reform.  The general approach includes:

  • A path to citizenship for illegals currently in the country (requiring a penalty, tax payments, and English proficiency);
  • Provision of legal status for individuals who graduate from U.S. colleges if they chose to remain and start a business; and
  • The ability for illegals brought to the U.S. as children to remain as citizens and receive educational opportunities.

Stay tuned as the discussion on immigration reform continues across the country.  This is a hot-button issue with politicians (and voters) at both the federal and state levels across the nation. 

Social Security No-Match Letters Return
By: Donald Berner

A few weeks ago, the Social Security Administration (SSA) issued its first batch of no-match letters to employers with the expectation that more letters will be sent out in the near future.  These were the first no-match letters to go out to employers since 2007.  The lack of letters over the last few years was the result of ongoing litigation related to the issuance of the no-match regulations that were ultimately withdrawn.  With an end to the litigation, the SSA no-match letters return. 

For those new to HR, the no-match letter is a tool used by the SSA to try and resolve discrepancies when an individual's name and social security number don't match.  The intendend purpose of the letter is for employers and employees to become aware of the problem and resolve it by correcting workplace records or working with the SSA. 

For employers receiving these letters, it is important to handle them with some care.  The receipt of a no-match letter is not intended in any way to signal to an employer that an employee is not authorized to work in the United States.  The no-match letter should set in motion a series of steps designed to confirm employer data being reported to SSA and/or the sending of an employee to visit the local SSA office to resolve any discrepancies.  The bottom line is that employers must balance between taking a course of action that is too aggressive yet ensuring the potential concerns raised by a no-match situation are not simply ignored. 

Information published by the Department of Justice on this topic can      Continue Reading...

Learning A Lesson -- H-1B Prevailing Wage Violation
By: Donald Berner

The Department of Labor (DOL) recently penalized the Prince George's County school system for its failure to properly pay H-1B workers.  In the case of an H-1B worker, the employer must pay the employee at least the prevailing wage amount established for the position.  The prevailing wage system is designed to ensure that foreign labor is not used to lower the U.S. wage base in a given occupation.  While the announcement is unclear, the problematic issue for the school is likely to have been the requirement the H-1B worker pay some or all of the fees for the preparation of the H-1B application packages. 

Generally speaking, it can be permissible for the employer to require an employee to pay the legal fees associated with any H-1B filing so long as these costs do not effectively lower the employee's wage rate below the prevailing wage rate.  For purposes of compliance, H-1B employers should view the prevailing wage as the minimum wage for an H-1B employee.  In addition to the prevailing wage floor, employers with H-1B employees should also be mindful of how the H-1B employee's compensation compares to his/her peers in the job classification.  Dropping below one of these floors can create a backpay liability issue for an H-1B employer.  In addition to the attorneys' fees concerns, there is also a government filing fee cost associated with the H-1B program.  While a payment of the attorneys' fees amount can be permissible, employers are not permitted to require the employee to pay the government filing fees associated with the H-1B application process.  

For the      Continue Reading...

E-Verify Now Provides For Limited Self-Checking
By: Donald Berner

A new pilot program has been added to the E-Verify system to allow individuals to check themselves and correct any problems that might prevent them from being verified.  This feature is currently only available to individuals in Arizona, Colorado, the District of Columbia, Idaho, Mississippi, and Virginia.  It is expected this self-check feature will be expanded and rolled out to individuals living in other states.  The addition of this capability seems to be an attempt to remedy the concern that the E-Verify system is prone to error and may cost authorized workers a job opportunity as workers will be able to check their own data and correct any problems prior to applying for employment.  

What does this mean for Kansas employers?  In the short-term, not much.  In the long-term, this appears to be one more step down the path to an eventual national requirement for all employers to use the E-Verify system.  One of the historical concerns with E-Verify is the potential error rate.  With the implementation of state laws in several states mandating use of E-Verify and the federal contractor requirement, the scope of participating employers has grown considerably.  This self-check option is a great way to address any concerns about employee fear of errors in the system.  When it is all said and done, don't be surprised if you start to hear talk of all employers being required to use E-Verify as part of the I-9 process. 

H-1B Filing Season Approaching
By: Donald Berner

The filing period for H-1B visa applications counting against fiscal year 2012 (October 2011 - September 2012) opens on April 1, 2011.  These applications can be for individuals intending to start work on October 1, 2011.  While October is seven months away, it is important for employers intending to take advantage of the H-1B visa program to think ahead.  The economic downturn over the last few years has left H-1B visa numbers available to employers through the December/January time period of a given year.  With the uptick in hiring that is starting to occur, it is likely we will return to the prior scenario where H-1B numbers for the entire fiscal year are alloted during the April filing period.  That isn't likely to occur this year, but it also isn't likely that H-1B visas will be fully available throughout the fiscal year.  In fact, it is more likely the cap will be reached earlier in this upcoming cycle.  So start planning ahead if you intend to utilize the H-1B program during the 2012 fiscal year. 

H-1B Visa Quota for Fiscal Year 2011 Exhausted
By: Donald Berner

The USCIS announced late yesterday that the H-1B cap for fiscal year 2011 was reached on January 26th.  As a result, there is no further availablility for employers to obtain H-1B visas for foreign workers with employment start dates before Ocotober 1, 2011 (the start of fiscal year 2012) if the application must be counted under the cap.  For the remainder of the fiscal year, only cap-exempt H-1B applications may be filed for new H-1B visa applicants.  In addition, individuals with a cap-counted H-1B may still change employers because they have already been counted.  For those employers looking towards the fall, the fiscal year 2012 filing season begins on April 1, 2011, for employees starting work after October 1, 2011. 


H-1B Cap Update
By: Donald Berner

The H-1B visa, the one most commonly used by employers to bring specialized workers to the United States on a temporary basis, is subject to an annual cap/quota.  The annual counting period tracks the federal fiscal year schedule and runs from October to September.  Employers may apply for employee start dates up to six months in advance of the date.  In a nutshell, employers can start seeking numbers against the fiscal year cap starting in October as early as April 1.  For example, employers could request an H-1B visa on behalf of an employee on April 1, 2010, with a starting date of October 1, 2010 (part of fiscal year 2011).  After seven months of usage, approximately 20,000 numbers remain available.  If this year follows the pattern of last year, the remaining numbers under the cap are likely to be used up around the end of December to the end of January time frame. 

Here is the link to the cap counting page on the USCIS website.

USCIS Increases Fees
By: Donald Berner

The U.S. Citizen and Immigration Services (USCIS) recently announced an increase in filing fees for a wide range of application types.  Of particular note to employers, the filing fees for several employment-based applications are scheduled to increase (I-140, I-485, I-129, and I-907). 

For the complete list of changes you can access the fact sheet at USCIS's website found here.  

Injunction Junction -- Arizona Immigration Law Collides with Federal Judge
By: Donald Berner

A federal judge in Arizona blocked the implementation of several key provisions of Arizona's controversial new immigration law.  This temporary blockage allows for more hearings and legal arguments to take place in the coming months by delaying (and maybe eliminating) the Arizona law. 

One thing I noticed in the days leading up to the effective date of the Arizona law last week was the increase in rallies and demonstrations.  With these demonstrations, the public and political attention paid to immigration issues is bound to grow. At the end of the day, the blockage (or non-blockage if it turns out that way down the road) isn't really the issue.  The Arizona law brings to the forefront the issue of immigration reform versus illegal immigration.  There is a growing perception the federal government is unable or unwilling to act to prevent illegal immigration.  At the same time, the country's economic struggles have resulted in more negative attention on employers and more calls for stronger employer sanctions for those employing illegal workers. 

The anti-immigrant messages focused on the loss of jobs for U.S. citizens has a tendency to catch the attention of local and state politicians.  As a result, there have been attempts in by a number of state legislatures to pass varying forms of immigration-related state laws.  Most of these efforts have been met with court challenges, like this most recent version in Arizona.  At the root of the legal wrangling is whether federal law preempts any attempts by the states to enact laws in this area. 

At the end of the day, the state legislatures and      Continue Reading...

I-9 Final Rule Issued
By: Donald Berner

The Department of Homeland Security (DHS) recently issued a final rule making a number of minor revisions to the regulations governing the I-9 process used by employers to document newly hired employees' eligibility to work in the United States.  The issuance of the final rule incorporates with some slight modifications the provisions of an interim rule issued in 2006.  The highlights are as follows:

1.  A language clarification was added to make clear that employers have three business days to complete the I-9 process as opposed to three calendar days.

2.  The interim rule allowed employers to use either a paper or electronic retention system and the the final rules allows paper, electronic, or some combination of a paper and electronic system.

3.  The final rule allows employers to maintain a separate I-9 file or to store I-9 documents within the files containing the employees' other personnel documents.

4.  The final rule relaxed the audit trail requirements for electronic storage systems requiring only an audit trail for record creation, modification, or deletion.  In essence, a viewing of the I-9 document does not need to be recorded by the electronic storage system.

5.  The interim rule required employers to provide employees with a printed receipt showing the record each time it is modified.  This requirement was relaxed to allow employers to only provide a printed receipt upon the request of an employee.

While the final rule made a few other changes, the ones listed above are the high points.  For those interested in reading the final rule, it can be found      Continue Reading...

Tips & Tactics -- Government Investigations
By: Donald Berner

One of the new realities for employers is the increased risk of a visit from an investigator working for the government.  These visits can come at any time, without warning, and may be conducted by any number of government agencies.  The typical visit for an employer is likely to be a wage and hour audit or an OSHA safety inspection.  While these (and any other agency visit) inspections are in widely varying areas, there are some common themes for employers to consider.  The worst time to prepare a workplace for an inspection/audit is when the inspector shows up at your door.  Here are a few quick thoughts should your workplace receive an unwanted visitor from the government:

  • Plan ahead:  The time to develop a game plan for an inspection is well in advance of the actual investigator's visit.  Responding to an inspection in "crisis mode" is highly likely to lead to mistakes or oversights.  The ultimate outcome is almost certainly not going to be as favorable to the Company as a situation in which a well-conceived plan is in place.
  • Communicate the Plan:  Make sure all management team members all the way down to the lowest level of management understands the Company's plan of action should an investigator arrive.  There is nothing worse than failing to implement a well-planned strategy because the individual meeting with the inspector doesn't know the strategy. 
  • Have a Core Team:  A group of individuals on the management team should be designated to handle the Company response to the arrival of any government investigator.  This group      Continue Reading...

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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