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

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.

Update on Temporary Protected Status (TPS) For Citizens of Nicaragua, Honduras, & El Salvador

Posted on: November 9th, 2017

By Kenneth S. Levine

On 11/6/2017 the Department of Homeland Security (DHS) issued an announcement on the Temporary Protected Status (TPS) program for citizens of Nicaragua and Honduras. Currently, there are approximately 60,000 Nicaraguans and Hondurans who reside and work in the U.S. under the TPS designation.

DHS announced that the TPS program for Nicaragua has been extended to 1/5/2019, at which time the TPS designation will be terminated. USCIS has advised Nicaraguans on TPS that between now and 1/5/2019 they must either seek a change of status to another visa category, or prepare to depart the United States.

TPS for Honduras has been extended for 6 months.  However, according to DHS’s announcement, “it is possible that the TPS designation for Honduras will be terminated at the end of the six-month automatic extension with an appropriate delay.”  As of today, TPS for Hondurans has been extended to July 5, 2018. DHS’s final decision regarding any additional extensions of Honduran TPS is expected by early 2018 once a new Secretary of Homeland Security has been confirmed by the Senate.

A decision by DHS on whether to extend or terminate the TPS program for citizens of El Salvador is expected by January 8, 2018.

While the general public may perceive the USCIS advisory to “seek a change of status to a different visa category” to be an easily attainable option, the reality is that TPS recipients must still satisfy the strict legal criteria for any requested visa type. For the vast majority of TPS recipients, that will prove difficult to achieve. Therefore, in assessing whether a TPS recipient qualifies for a different visa category, the analysis should necessarily include whether any options exist to pursue permanent residency.

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].

Scam Alert: USCIS Does Not Request Forms I-9 Via Email

Posted on: November 7th, 2017

By: Layli Eskandari Deal

U.S. Citizenship & Immigration Services has issued the following notice:

U.S. Citizenship and Immigration Services (USCIS) has learned that employers have received scam emails requesting Form I-9 information that appear to come from USCIS. Employers are not required to submit Forms I-9 to USCIS.

Employers must have a Form I-9, Employment Eligibility Verification, for every person on their payroll who is required to complete Form I-9. All of these forms must be retained for a certain period of time. Visit I-9 Central to learn more about retention, storage and inspections for Form I-9.

These scam emails come from a fraudulent email address: [email protected]. This is not a USCIS email address. The body of the email may contain USCIS and Office of the Inspector General labels, your address and a fraudulent download button that links to a non-government web address (uscis-online.org). Do not respond to these emails or click the links in them.

If you believe that you received a scam email requesting Form I-9 information from USCIS, report it to the Federal Trade Commission. If you are not sure if it is a scam, forward the suspicious email to the USCIS webmaster. USCIS will review the emails received and share with law enforcement agencies as appropriate. Visit the Avoid Scams Initiative for more information on common scams and other important tips.

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].