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FMG Law Blog Line

Posts Tagged ‘Department of Homeland Security’

Florida Governor Signs Employment Eligibility Verification Bill into Law

Posted on: July 2nd, 2020

By: Melissa Santalone

Florida Governor Ron DeSantis has signed into law a bill on verification of employees’ legal authorization to work in the U.S. that is a far cry from the original bill proposed at the beginning of the legislative discussion. As we discussed here, the initial bill would have required all Florida employers to register with and use the E-Verify system, a web-based system operated by the Department of Homeland Security (DHS) that compares information supplied by the user with data held by DHS and the Social Security Administration, to verify the employment eligibility of each new employee. It would also have imposed suspension of business licensure upon the first violation and allowed a private right of action by employees that are U.S. citizens or resident aliens that were 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. However, this initial version was stripped of these and other provisions through the legislative process, making compliance for Florida private employers much easier.

In the end, the bill signed by Gov. DeSantis will require, beginning January 1, 2021, all Florida public employers, contractors and subcontractors to use the E-Verify system to verify the employment eligibility of all their employees. These public employers, contractors, and subcontractors are prohibited from entering into contracts with another entity unless each party uses the E-Verify system. Subcontractors are required to provide contractors with whom they enter into contracts with an affidavit providing that the subcontractors do not employ, contract with, or subcontract with “unauthorized aliens.” 

In contrast, beginning January 1, 2021, private employers are only required to verify new employees’ and, upon renewal or extension of their contracts, contract employees’ eligibility either by requiring the employees to fill out standard I-9 forms and providing the documentation required by the form, which is already required by federal law, or by using E-Verify. The law provides that private employers may not be held civilly or criminally liable for hiring or continuing to employ an “unauthorized alien” for whom the information collected for verification of employment eligibility indicates the person’s work authorization status is not that of an “unauthorized alien.” Compliance with the statute gives rise to a rebuttable presumption that private employers did not knowingly employ an “unauthorized alien.”  In terms of enforcement, private employers must retain verification documentation for three years and must produce such documentation to the Florida Department of Law Enforcement, the Florida Attorney General, a state attorney, or a statewide prosecutor upon request. If a private employer is found to have violated this statute, it must produce an affidavit attesting that it will comply with the statute going forward, has terminated all “unauthorized aliens” in its employ, and will not knowingly employ “unauthorized aliens.” If the private employer fails to provide such an affidavit within 30 days, it will be subject to suspension of its business licensure until it provides the affidavit. If a private employer is found to have violated the law three times within three years, its business licenses may be permanently revoked. 

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]

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].