Articles from Immigration Law, Tweets

Have you received a letter from Immigration Customs Enforcement (“ICE”) that your company must produce its I-9 forms for inspection? If so, you are not alone. The Government initiated a new round of immigration investigations on June 14, 2011 targeting 1,000 companies across the country.

The companies will be facing government audits of I-9 forms and documents filed by employees indicating legal working status in the United States.

“The inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources,” ICE spokeswoman Gillian Christensen said in a statement.

The names of the companies were not released, however, ICE stated they include large and small businesses in 17 sectors, including agriculture and food, financial services, commercial nuclear reactors, drinking water and water treatment, postal and shipping, health care and transportation.

“Ultimately, our focus on businesses related to critical infrastructure and key resources aligns with our priority as an agency to first and foremost minimize threats to national security and public safety,” Christensen said.

The Obama administration has made workplace investigations a key part of its efforts to enforce immigration laws, unlike the Bush administration, which relied more on high-profile raids and worker arrests.

In all, ICE has initiated more than 2,300 employer audits since the start of the federal fiscal year in October. It conducted 2,196 audits during the 2010 fiscal year, leading to the criminal arrests of 196 employers and 119 convictions.

Questions employers face when audited are:

Are the I-9’s filled out correctly? Typical errors in filling out I-9 forms include:

Leaving fields blank. If there is no answer, such as no middle name or maiden name for a man, fill in with N/A.

Listing more that either the List A documents, ie US passport, permanent residency card or work authorization or List B and C documents, ie Drivers license and Social Security card. An employer should not request all the documents. It is a violation of the employees rights.

Executing the signatures of the employer and employee on different dates. While the documents can be signed up to 3 days apart, the issue is whether the employer viewed the documents when the employee signed the form.

2. Are we maintaining our I-9’s correctly? I-9’s should not be kept in the personnel files of the employee but in separate binders. One binder for current employees and a second binder for employees terminated within three years of their hire date or one year after termination, whichever is longer. Employers should not keep I-9s after the period allocated. Employers should develop a regular purging process. However, it is probably not a good idea to destroy any documents after receiving an ICE inspection notice.

If an employer is being audited, one of the best things it can do, is hire an outside group to audit the forms and related documents immediately. We spent last week auditing forms and documents, training employees, interviewing employees for a company who received one of the thousand letters. We discovered technical errors with virtually all of them.

However, we reached out to ICE and informed them we were conducting an audit. We requested some additional time and corrected all the technical errors. We included audit notes and met with the Inspector to identify our issues. It was very well received. Our client would have surely received a lengthy report from ICE indicating non-compliance with virtually all employees. We discovered in our interview process a discrepancy that resulted in termination of an employee. We divulged the issue and solution to ICE at the initiation of the process.

The company officials decided to join IMAGE, an initiative that requires an ICE audit and outside audits going forward. But for my client they were being audited anyway and we were performing the outside audit. Additional requirements are joining E-verify among others. Taking these actions are good faith or mitigating steps that may save the Company massive fines, potential criminal prosecution or shutting down operations.

The passage of IMMACT unwillingly deputized US employers to take reasonable steps to determine whether employees are lawfully permitted to work. The consequences can be civil fines ranging from $110 to $1,100 per violation or criminal liability.

The Government has shifted a wholly civil fine philosophy to include criminal liability today. ICE may refer cases of numerous crimes such as knowingly employing an illegal alien, harboring an illegal alien, RICO violations, money laundering and numerous others to a US attorney. The number of crimes have been initiated against US employers have sky rocket in recent years.

ICE is a very well funded agency, and crimes prosecuting illegal aliens is now the top body of crime in the country surpassing drug crimes and terrorism. Hispanically Speaking, reported on June 21, 2011, that the top two crimes in the United States are immigration crimes. One, illegally re-entry will comprise approximately 50% of all crimes prosecuted in the United States in 2011. The current administration will prosecute approximately 37,000 individuals on illegal re-entry. This is a massive upswing from George Bush II’s administration that prosecuted approximately 20,000 in 2008. Bill Clinton’s highest total was in 2000, with approximately 7,500. While, George Bush I only prosecuted approximately 1,000 in both 1991 and 1992.

We are seeing an upswing in deportation as well. In FY 2009 ICE deported more than 135,000 “criminal aliens,”—a 19% increase over FY 2008.

The heightened prosecutions and deportations are indicative of the Government’s hard line policy against illegal immigration and focus on enforcement. The ICE inspection initiative is the largest ever of its kind and clearly shows that the Government will hold US employers responsible if they hire illegal workers. I-9 compliance is a requirement for all employers in the US, it is imperative that you understand whether you are compliant before ICE knocks on your door on gives you a letter with only a few days to comply. But if they do, call an Immigration Attorney with experience in compliance immediately.

My contact information is 405-310-4333, office 405-821-5959, mobile, e-mail me at jon@velielaw.com or visit our website at www.onlinevisas.com.

From the US Open a how to on hiring international tennis pros

Dateline, US Open, Flushing Meadows, NY.

I am at the US Open as a guest of the WTA Tour advising the top international tennis pros on immigration issues. In honor of this really fun and interesting post, I will dedicate this article to tennis and provide some advise on how US tennis clubs can hire an international tennis pro.

Tennis clubs can raise notoriety and provide excellent services for their members by hiring an international professional. Finding an international professional with U.S. varsity experience or playing on tour is not that difficult as many are recruited by U.S. universities and would like to stay in America after graduation to continue in their sports. Hiring the international pro to provide lessons or play with members and represent the club in competition can be a win-win for all involved. This article lays out a couple of the visa options available through the U.S. Citizenship and Immigration Service (USCIS).

The O-1 extraordinary ability visa is for the very best. This visa is for those who have reached the top of their profession. It is established by meeting a number of the following options: National or international awards, published materials about the individual, membership in associations which require outstanding achievement, major contributions, articles written by the individual in trade journals, salary, participation on a panel or previous work with an organization with a high reputation.

Top competitors in the best tours, significant tournament participants or winners, large money winners, highly ranked, All-Americans, Olympians or National Team members meet these criteria. Extraordinary ability beneficiaries must have reached the highest level in their career but do not have to continue working at the highest level, although they must be working in the profession. This permits clubs to hire those who are at the sunset of their career and may make great coaches. It is also a good tool for a club that wants to be the home of a tour star. Between events, the pro can make appearances, coach or play with members or work out to stay in top form.

The P-1 visa is for exceptional athletes. It requires competing at the top level, but the standard is not as high as the O-1. These individuals must meet two of a number of criteria that include competing in the U.S. at the varsity level, competing in a previous year in the top U.S. competition, and a written statement from an expert or governing body official affirming they are internationally recognized. Although this visa is primarily for athletes, it can include pros who compete and coach. This situation works for club pros that compete in tournaments and coach club members.

These visas can be obtained for numerous years either directly by the clubs or through agents. The latter permits compensation from a number of sources, such as the club’s salary, while also allowing them to receive tournament pay, coach local teams, establish camps or clinics, teach private lessons, and receive endorsement deals, product deals or other industry related compensation.

In many instances, the clubs will petition for the visas as employers and will sub-contract the pro for the other events such as a college or high school team or a clinic or camp.

The O and P both can be adjusted to permanent residency visas, also called green cards. The EB-1 is for Extraordinary Ability and has similar requirements to the O-1 but must be sustained over a career. P holders can make the jump, but the evidence must meet the higher EB-1 standard.

Another option is the H-1b visa. It is for jobs that require university degrees or their equivalent. This has a few options for clubs as some coaching positions require degrees and most management level positions do as well. The visa has some variant forms for some countries; it is the E-3 for Australians, TN for Canadian or Mexican degree holders and has a special exception to cap issues in Chile based on a treaty. Like the O and P, these multi-year visas can serve as a basis to adjust to permanent residency or green card status.

The focus of these visas is more on the job than the achievements of the beneficiary. The beneficiary must have a degree that provides the requisite background to perform the job. If the degree was obtained outside the United States, it must be evaluated to be equivalent to a U.S. degree. The job must also pay the prevailing wage for the state in which it will be performed and for the profession.

If the individual does not have a degree, he/she may obtain the visa if they have work experience equivalent to a degree. A formula of three years of work experience in the field equals one year of college. For example, someone with two years of university level schooling would need six years of experience.

This visa and most P visas can adjust to an EB-3 Permanent Residency visa. This requires obtaining a labor certification affirming that no Americans are willing or able to perform the job. This is proven by sampling the job market through job advertisement.

Some P-1 and O-1 visa holders may meet the criteria for the EB-2 Permanent Residency visa. The EB-2 regulation does not specifically include sports, but the courts determined that professional athletes are included under the entertainment category.

The EB-2 criteria does not require advertising like the EB-3 and permits special filing that is much quicker than the EB-2. Also for most nations the priority date is current unlike the long delays under the EB-3.

A number of countries have treaties with the United States where citizens can invest in and establish companies in the United States. The visa is called the E-2, Treaty Investor visa. The E-1, Treaty Trader, is similar. These visas permit the company’s investors, executives and specialized employees from the treaty country to obtain visas to create and maintain a U.S. company. The visa can be extended as long as the company is viable.

Another similar visa is the L-1 transferee visa. This permits executives, managers and specialized skill workers to be transferred from internationally based companies to U.S. branches. It is permissible to transfer in order to establish the U.S. branch. The worker must have worked for one of the past three years in the requisite capacity at the international office. Petitioners may apply for permanent residency one year after the establishment of the U.S. subsidiary. Executives can utilize the EB-1, International Executive category, which does not require the labor certification process needed in the EB-3 category.

These visas can be used if an international wants to establish his/her own company, merge a U.S. company, thereby creating an international one, or bring over foreign talent or import or export goods.