CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘Department of Homeland Security’

Florida Legislature is One Among Several Pushing for Mandatory Use of “E-Verify”

Posted on: November 8th, 2019

By: Melissa Santalone

A Florida State Senator has filed a bill that would require, beginning January 1, 2021, all Florida businesses to use the “E-Verify” system to check whether each newly hired employee is authorized to work in the U.S.  The “E-Verify” system is a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user, presumably first obtained from the new employee, with data held by DHS and the Social Security Administration.  The bill does not limit its application to businesses of a certain size and, therefore, even the smallest of Florida businesses would be required to comply.  Any businesses failing to register with “E-Verify” after the effective date of the bill, if signed into law, would be subject to suspension of all or any state licenses they hold.  If an employer is found to have committed a second violation of knowingly employing an “unauthorized alien” within a 2-year period, the bill would subject the employer to a 30-day suspension of its business licenses.  Governor Ron DeSantis has previously come out in favor of mandatory use of “E-Verify” and would likely sign the bill into law if it were to pass both houses of the Legislature.

By introducing this bill, the Florida legislature joins the legislatures of other states, including Pennsylvania, and the United States Congress in considering similar mandatory use of “E-Verify” in 2019.  Earlier this year, legislators in North Carolina proposed a bill that would increase the number of businesses subject to its mandatory use of “E-Verify” by including businesses with 5 or more employees, down from 25 or more.  Currently 9 states require all or most employers to use “E-Verify” and numerous others require some employers to use it.

Interestingly, the Florida bill would also create a private cause of action against an employer by an employee who is a U.S. citizen or resident alien that is discharged by the employer while the employer knowingly employs an “unauthorized alien” at the same job site or in the same job classification elsewhere in Florida.  In such an action, the employee could be entitled to reinstatement or the recovery of back pay, court costs, and attorney’s fees.

We will be watching to see if this bill becomes law.  If you have questions about Florida law surrounding the use of “E-Verify” or other labor and employment-related questions, please contact Melissa A. Santalone at [email protected].  If you need assistance in other states where Freeman Mathis & Gary can assist you, please contact a member of our Labor & Employment practice group.

DHS to Double Number of H-2B Visas for the 2019 Summer Season

Posted on: April 8th, 2019

By: Kenneth Levine

Despite the current Administration’s two-year campaign to issue executive orders placing limits on U.S. work visas, a surprising limited expansion of the H-2B work visa program was announced by DHS this week. This development is especially welcome news for the landscaping, seafood processing, forestry and hospitality industries, all of whom depend heavily on this visa for temporary, seasonal workers.

The H-2B visa program has an annual quota of 66,000 workers. The 66,000 annual quota is split evenly between the spring/summer and fall/winter seasons. The above DHS announcement represents an additional 30,000 H-2B visas, on top of the 33,000 H-2B visas already designated for the 2019 spring/summer season. However, the extra 30,000 allocation of H-2B visas is being limited to those workers who have previously held H-2B visa status.

While virtually every U.S. work visa program is the subject of intense and polarizing debate in Congress, this H-2B visa expansion proposal is an encouraging sign. Indeed, this proposal should be seen as recognition by the current administration that U.S. businesses continue to experience significant difficulties in recruiting U.S. workers for temporary, seasonal positions.

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].

Latest Update on the H-1B Visa Application Process

Posted on: February 11th, 2019

By: Layli Eskandari Deal

The U.S. Department of Homeland Security (DHS) has issued a final rule implementing changes to the H-1B visa program for petitions filed under the H-1B cap (better known as the H-1B visa lottery).

The rule reverses the order whereby USCIS selects H-1B petitions for the standard allotment of 65,000 visas and the 20,000 visas allocated for the advanced-degree exemption. It also adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule is scheduled to become effective on April 1, 2019.

Under the reverse selection process, USCIS will first select H-1B petitions for the general allotment of 65,000 visas. Then USCIS will select from the remaining petitions a number estimated to reach the advanced degree exemption. The reverse selection rule applies to petitions filed for the FY 2020 H-1B cap season (this year). The agency expects the lottery reversal to increase the number of individuals selected who possess an advanced degree from a U.S. institution.

The rule also implements an electronic registration requirement for H-1B cap-subject petitions which DHS has postponed until next cap season (FY 2021). Once implemented, it will require those seeking to file H-1B cap petitions to first electronically register with USCIS. Only petitioners whose registrations are selected will then be able to file an H-1B cap-subject petition.

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].

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].