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Archive for the ‘Immigration & I-9 Services’ Category

Latest Developments In DACA

Posted on: February 19th, 2018

By: Kenneth S. Levine

On 2/15/2018 four (4) separate legislative bills that sought to address the March 5th termination of the DACA program, border security, family-based immigration and the Diversity Lottery were put up for a vote in the U.S. Senate.  None of the bills garnered the necessary 60 votes to overcome a filibuster threshold and move the legislation to the House of Representatives.  At this point it seems doubtful that any piece of legislation will pass Congress that addresses DACA recipients, a border wall, the elimination of family-based categories and the Diversity visa lottery.

As to the March 5th date on which the DACA program was set to terminate, within the last several weeks two Federal Judges in the U.S. District Court in California and New York issued nationwide injunctions that, for now, keeps the DACA program intact beyond the March 5th deadline.  While the injunctions mean that the U.S. Department of Homeland Security must continue processing DACA renewal applications, the Judges are not requiring the Department to accept DACA applications from first time Applicants.

The latest major development on this issue is that the U.S. Supreme Court met on 2/16/18 to determine whether to accept a request from the U.S. Justice Department to take up the injunction cases. We expect their decision within the next few days.  An affirmative decision means that the Court would essentially leapfrog the relevant U.S. Court of Appeals in determining whether the injunctions are legally valid.  If the Supreme Court declines to accept immediate jurisdiction of the Justice Department’s appeals, then it will likely take 9-12 months for the 2nd and 9th U.S. Circuit Court of Appeals to render a decision.  Whatever the result, constitutional law legal experts widely anticipate that the U.S. Supreme Court will ultimately decide this issue.

The Immigration Attorneys of Freeman Mathis & Gary, LLP strongly advise all current DACA recipients to consider filing renewal applications immediately.  Although we do expect the DACA program to ultimately be terminated, those with pending renewal applications will likely be in a strong legal position to have their cases adjudicated.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

New Developments in TPS and DACA

Posted on: January 18th, 2018

By: Kenneth S. Levine

This past week the Department of Homeland Security announced the termination of Temporary Protected Status for citizens of El Salvador.  DHS reports that there are approximately 200,000 El Salvadoran citizens living and working in the United States.  TPS designation for El Salvador will officially terminate on September 9, 2019.  USCIS has publicly stated that if TPS recipients are unable to obtain green cards or acquire a different legal status prior to that date, then they will be placed into deportation proceedings.

While the general public may perceive the USCIS advisory to “obtain a green card or seek a change of status to a different visa category” to be an easily attainable option, the reality is far different.  TPS recipients must still fully satisfy strict legal criteria to qualify for those options.  For the vast majority of TPS recipients, this will prove exceedingly difficult to achieve.

FMG Immigration Attorneys are currently engaged in assessing whether any of our TPS clientele from El Salvador qualify for permanent residency or a different visa category.  It is important to note that for those who do not qualify, legal options may be available in the context of deportation proceedings.  It is anticipated that this current administration will continue to terminate TPS designations for countries remaining in the TPS program.  Therefore, it is critically important that all TPS recipients promptly seek legal advice from experienced immigration counsel to assess their legal options.

DACA

Another significant development in the immigration field occurred on January 9th when U.S. District Judge William Alsup issued an injunction against the current administration from ending the Deferred Action for Childhood Arrivals (DACA) program.   This program was scheduled to end on March 5th.  For now, DHS must accept DACA renewal applications.  It is anticipated that the court’s injunction will be promptly appealed and therefore it is entirely uncertain how long the injunction will remain in place.  For now, FMG Immigration Attorneys strongly recommend that all DACA recipients who otherwise would be eligible to renew their status do so as soon as possible.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

 

California’s Protecting Immigrant Worker Protection Act (AB-450)

Posted on: January 11th, 2018

By: Layli Eskandari Deal

On October 5, 2017 Governor Brown signed AB-450 into law further taking California into the federal immigration landscape.  The new State law took effect on January 1, 2018.

Here are some key elements:

  1. Employers no longer can voluntarily grant access to nonpublic areas of the company to any immigration enforcement agent.  Access can only be granted when presented with a judicial warrant.
  2. The new law does not restrict Department of Homeland Security from providing a Notice of Inspection (NOI) to an employer demanding the employer’s I-9 forms within 3 days of service.  The employer must honor the NOI.
  3. If a NOI is received, the employer must post a notice at the worksite, in the language the employer normally uses to communicate information with employees, within 72 hours of receipt.  The notice must communicate the following:
    1. [Name of Issuing authority] has issued a Notice of Inspection and will be conducting an inspection of Employee Form I-9s or other employment records;
    2. Date of receipt of NOI
    3. The “nature of the inspection” – to the extent known by the employer.
  4. Give notice to the “employee’s authorized representative” (any collective bargaining representative), if any, within 72 hours of the receipt of the NOI.
  5. Provide a copy of the NOI to any “affected employee” upon reasonable request.
  6. Notify “affected employees” within 72 hours of the agency’s inspection results as well as written notice of the obligations of the employer and employee arising from the inspection.
  7. Employers are prohibited from reverifying the employment eligibility of any current employee at a time or manner not required by law or that would violate employer’s E-Verify Memorandum of Understanding.
  8. Penalties: First offense – $2,000 -$5,000 / each subsequent offense – $5,000-$10,000.

We expect that the Department of Homeland Security will conduct more inspections this year.  It would be beneficial for California employers to have policies in place to handle these situations if they should arise.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

The Entrepreneurs Parole Visa – Full Steam Ahead – For Now

Posted on: December 4th, 2017

By: Kenneth S. Levine

On 12/1/2017 a Federal Judge ruled that the Department of Homeland Security did not have legal cause to delay the enactment of a visa program for foreign entrepreneurs. The program, referred to as the “International Entrepreneur Rule,” was supposed to have gone into effect on 07/17/2017.

On 7/10/2017 the current presidential administration announced a delay in the program until March 2018. As FMG predicted back in July 2017, litigation immediately ensued, and the Federal Court did in fact determine that the rule delay was unlawful because it failed to comply with the APA (Administrative Procedures Act).

The Court’s decision mandates that the U.S. Citizenship and Immigration Services must immediately begin accepting applications under this program. Applicants may be “paroled” (i.e., admitted) into the U.S. to run their own business if they can show at least $250,000 of investment capital from established, reputable investors.

It is anticipated that the current presidential administration will seek to enact a complete withdrawal of the program through the APA’s formal rule making process. While a complete withdrawal would likely take 1-2 years, it is unknown whether the current administration will be able to legally halt the program through the judicial appeals process. Accordingly, FMG Immigration Attorneys urge those interested in applying for the program to do so promptly.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Expect Increased Worksite Inspections by ICE in 2018

Posted on: November 15th, 2017

By: Melissa M. Whitehead

One can barely turn on the news (or look at Twitter) without hearing about the current Administration’s immigration views and policies. The topic has become so highly politicized that it can be easy to miss the actual details of new rules and regulations. Employers must pay close attention, though, and be sure they are staying current with the changing regulations. At a recent event titled “Enforcing U.S. Immigration Laws: A Top Priority for the Trump Administration,” keynote speaker and Acting Director of the U.S. Immigration and Customs Enforcement (“ICE”) said that his agency will be cracking down on employers who hire undocumented immigrants. He recently instructed Homeland Security Investigation to increase the amount of time spent on work site enforcement “by four to five times.” He also promised that the number of worksite inspections would significantly increase “in the next fiscal year.” Why? According to Homan, “unless you remove the magnets… they’re gonna keep coming… . As long as they’re coming to get a job, they’ll try to come. So we are stepping up work site enforcement…”

What does this mean for employers?

Employers should expect an increased likelihood of employment immigrant audits, with or without advanced notice. This is likely to come in the form of I-9 audits. For this reason, employers are encouraged to periodically conduct internal Form I-9 audits with the assistance of counsel, to ensure that I-9 forms are being correctly completed and appropriate records are being maintained. Employers must also ensure that the correct Form I-9 is being used, as the approved form frequently changes. The most recent version was released in July 2017 and became mandatory on September 18, 2017. Any errors discovered in the audit should be immediately remedied. Employers should also consider providing training to their HR professionals in I-9 compliance and policies. Both substantive and technical violations alike will result in penalties anywhere from $220 to $2,156 per employee’s I-9.

Employers in states or cities that have declared as “sanctuary cities/states” have an even more complicated burden. For example, California’s “sanctuary state” legislation will go into effect on January 1, 2018. California employers, then, will be prohibited from voluntarily allowing federal immigration enforcement agents into non-public work areas or access to employee records without a warrant. The legislation also places specific requirements for both pre-inspection and post-inspection notice to employees. Failure to comply with sanctuary state legislation will subject California employers to civil penalties between $2,000 to $5,000 per employee for the first violation, and $5,000 to $10,000 for each subsequent violation.

Conclusion

Employers are encouraged to perform internal audits of their policies and practices before or around the start of 2018, and to seek the advice of counsel well-versed in both employment and immigration regulations, for assistance in navigating these tricky waters.

If you have any questions or would like more information, please contact Melissa M. Whitehead at [email protected] or (916) 472-3306.