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

Posts Tagged ‘Department of Homeland Security’

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].

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].

You’ve Got Mail: E-mail Notifications Effective in E-Verify

Posted on: July 8th, 2013

By: Kelly Eisenlohr-Moul

Among the more significant changes in the 2013 Form I-9 is an optional field for the employee’s e-mail address.
If the employee supplies an electronic address, whether work or personal, the employer must use the address provided when initiating an E-Verify case.
US Immigrations and Customs Enforcement (USCIS) recently announced the intended use for this electronic address:  electronically mailing tentative non-confirmations (TNC) to employees.
USCIS states that it will only send an e-mail to employees if:

• The employee provided a valid e-mail address in Section 1 of the Form I-9
• The employer is enrolled in E-Verify
• The employee received a TNC
TNCs occur when there is a mismatch between the data provided on the Form I-9 and the data contained in the E-Verify databases (supplied by the Department of Homeland Security (DHS) and the Social Security Administration (SSA)).  This feature may assist in notifying employees of their TNC and need to follow up with the DHS or the SSA.

Notably, employers will not be copied on these e-mail messages, and this new feature does not alleviate the employer’s obligation to provide employees with a notice of the TNC.
Finally, employees have eight (8) federal working days to contest the TNC.  They must be allowed to work as normal during this time period, or the employer could be subject to a charge of discrimination from the Office of Special Counsel.