On June 1, 2010, the USCIS published its notes from a session it held to gather feedback and input from stakeholders on E-Verify and the Form I-9 program.
There were a few notable points released in this memo:
1) A self-check initiative will be introduced in December. This initiative will enable anyone to go to the website and run a verification query on him/himself and determine the accuracy of his/her government record. Hopefully, this will allow those individuals who have recently changed their name or their immigration status to verify that the system is correct and solve problems before they are given an abbreviated window by the e-verify system to do so.
2) The Verification Division informed stakeholders that it runs monthly reports to see if companies are running checks outside 3 business days of an employee’s hire date. This statement confirms our suspicion that the USCIS is using the e-Verify tool to police Form I-9 completion. This monitoring could expand into other areas and also prompt further audits and investigations.
For further information about worksite enforcement activities, please visit our worksite enforcement portal under the “information” tab.
Tomorrow, May 27th, I will present immigration options for students after leaving the University of California, Davis at 5 pm in 206 Olson Hall. This presentation covers several issues which are of the utmost importance for anyone considering (non-UC Davis) H-1B status in the future, including:
• What are the requirements for H-1B status?
• How far in advance of the expiration of my current status should I consider H-1B sponsorship?
• What is the current situation with H-1B ?numbers? for undergraduate and graduate students?
• What questions should I ask potential employers about their immigration policies with regard to H-1B status and employing foreign nationals?
• What happens to my status if I am laid off from my job while in H-1B status?
• How can I obtain permanent residency? How does permanent residency relate to my H-1B status?
• How do I maintain my F-1/J-1 status if I marry a US citizen and apply for permanent residency?
I have attached the presentation and the handouts for anyone who cannot make the presentation tomorrow. Please also feel free to e-mail me at info at harms-law.com to schedule a one-hour consultation for a nominal fee to design an immigration strategy relevant to your particular situation.
Melissa Harms H-1B Workshop May 2010
H visa
As numerous media outlets have announced this week, on Friday, April 23rd, Governor Jan Brewer signed a bill that made it a crime to be an undocumented immigrant in the state. After reading the text of the law, I was shocked that a state legislature AND a governor could enact a piece of legislation so clearly unconstitutional.
What is almost more disturbing than the law itself, is the statistic that one radio show touted: Seventy percent of Americans agree with Arizona’s law. My question is: what part of the law? Fixing a broken immigration system? Yes. Arresting people with “reasonable suspicion” that they are illegal which will undoubtedly lead to racial profiling? Not so much. This law is going to have disasterous consequences on many fronts. It is true that something needs to be done, but this is a horrible misguided effort.
Jon Stewart offers some humor on a very humorless situation:
Looking for the silver lining, maybe Arizona’s folly will finally breathe life into comprehensive immigration reform. One can only hope.
The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization. In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.
On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers. This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US. The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers. This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.
Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.
The H-1B “season” has begun! On April 1, 2010, the USCIS began accepting H-1B applications for the 2011 Fiscal Year, which begins on October 1, 2010. Fortunately, as many of us predicted, in contrast to years past, the 65,000 H-1B “numbers” were not exhausted on the first day, and will probably remain available for awhile to come.
According to the American Immigration Lawyers’ Association, at a meeting held on Tuesday, April 6, 2010, the USCIS’s Vermont Service Center (which receives cases for Petitioners located on the East Coast) reported that, as of close of business on Monday, April 5, 2010, it had received a total of 9,525 cap-subject H-1B petitions towards the total of 65,000 alotted spaces. Of those petitions, 6,791 were “regular” cap, and 2,734 were for candidates who possess a US advanced degree.
Please note that the numbers quoted above do not include the USCIS California Service Center’s intake, which processes applications for Petitioners located on the West Coast, which has not yet been made available.
We will continue to update you as these figures are made available.
On March 17, 2010, I spoke at the Sonoma County Employers Advisory Council regarding worksite enforcement and immigration concepts human resource professionals must master when employing foreign nationals. I had some great questions from the group that I thought I might share from the presentation.
1) Can I use e-Verify as a pre-employment inquiry?
No. e-Verify may only be used after the employee has been offered the position and accepts the position. The memorandum of understanding (MOU) signed by all e-Verify participants outlines these terms of use.
2) Can I use the social security verification service as a pre-employment inquiry?
No. Although there is no direct regulation on the subject, it is probably not a good idea to use the SSNVS system during the hiring process or it could result in a discrimination claim or unfair employment practice. After someone is hired, it is permissible to use this service to ensure that the social security number is valid for wage reporting purposes.
3) Can I review the Form I-9 for my subcontractors?
Probably not. Due to privacy laws, your subcontractor will probably not share its Form I-9s with the contractor. However, it is a good idea to have an indemnification clause in the contract to ensure that the subcontractor maintains sound I-9 practices and will indemnify the contractor in the event of a worksite enforcement action. In a recent case, Wal-Mart was held responsible for its subcontractor’s failure to maintain proper I-9 records.
If you would like a copy of the power point from this presentation, please e-mail my office directly at info at harms-law and state your organization name and we will send you a copy. Please refer to the worksite enforcement section of this website for further information and resources.
Here are some of the topics covered by this powerpoint presentation:
E-Verify, I-9 Compliance and Worksite Enforcement: An Essential Primer for All Employers. With the new changes to the I-9 and increased worksite enforcement actions, completing and maintaining the I-9 form, once viewed as a simple HR function, has become more complicated and riddled with significant liability. This presentation will cover the following critical components of the Form I-9, the new e-Verify system as well as some tips for employers to protect themselves in event of a government worksite enforcement action:
- Recent events in worksite enforcement
- Possible employer sanctions from a worksite enforcement action: civil and criminal
- Critical elements of the Form I-9 and common mistakes when completing the Form I-9
- Changes to the Form I-9 and what these mean to HR professionals
- E-Verify: What is it and what are the responsibilities involved with this system?
- Should my employer enroll in e-Verify? Is my employer required to enroll in e-Verify?
- Strategies to reduce liability in the event of an audit and critical first steps for employers to follow when government agents arrive at the workplace
On January 8, 2010, the USCIS released a memo regarding establishing an employee/employer relationship for H-1B petitions where employees are placed at third party sites. This memo gives guidance to USCIS adjudicators in determining whether a sufficient employer/employee relationship exists as for the Petitioner to qualify as an “employer” under the Immigration and Nationality Act and the Code of Federal Regulations when applying for H-1B status on behalf of its employees.
The memo outlines several types of relationships where the employer/employee relationship exists:
- Traditional employment
- Temporary/Occasional Off-Site employment (for example, accountants who visit different client sites for audits and the petitioner provides food and lodging costs for the beneficiary who is normally stationed at a centralized office run by the petitioner.)
- Long Term/Permanent Off Site employment (for example, architects who are working off-site at a project site where the petitioner provides the instruments and tools for the project and the beneficiary reports to the petitioner, and the underlying contract states that the petitioner has the right to ultimate control of the beneficiary’s work.)
- Long Term Placement at a Third Party Work Site (for example, the petitioner is a computer software development company which has contracted with another company to develop an in-house computer program. The beneficiary will work on the contract at the client site. While the beneficiary is at the site, he reports to the petitioner, and is paid by the petitioner and receives benefits from the petitioner.)
The memo also states that self-employed beneficiaries and independent contractors do not have a sufficient employer/employee relationship for H-1B purposes. Lastly, the memo states that Third Party Placements/ “Job Shops” do not demonstrate the requisite employee/employer relationship. These relationships exist when the petitioner has contracts with numerous outside companies in which it supplies employees to fill specific staffing needs. The specific staffing needs are not outlined in the contract between the petitioner and the third-party company, but are staffed on an as-needed basis. The beneficiary does not report to the petitioner for work assignments and the petitioner does not control how the beneficiary will complete daily tasks.
The USCIS is now going to subject any H-1B application to strict scrutiny to determine if the relationship is analogous to the “Long Term Placement at a Third Party Worksite” situation as described above, which does satisfy the employee/employer test, or whether it is more analogous to the “Job Shop” scenario described above. Therefore, H-1B petitions that do not involve a traditional employment relationship or in which the employee must travel to additional worksites will need to provide the evidence stated below (as appropriate):
- A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed for the period of time requested;
- Copy of signed Employment Agreement between the petitioner and beneficiary detailing the terms and conditions of employment;
- Copy of an employment offer letter that clearly describes the nature of the employer/employee relationship and the services to be performed by the beneficiary;
- Copy of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;
- Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as a detailed description of the duties the beneficiary will perform, the qualifications that are required to perform the job duties, salary or wages paid, hours worked, benefits, a brief description of who will supervise the beneficiary and their duties, and any other related evidence;
- Copy of position description or any other documentation that describes the skills required to perform the job offered, the source of the instrumentalities and tools needed to perform the job, the product to be developed or the service to be provided, the location where the beneficiary will perform the duties, the duration of the relationship between the petitioner and beneficiary, whether the petitioner has the right to assign additional duties, the extent of petitioner’s discretion over when and how long the beneficiary will work, the method of payment, the petitioner’s role in paying and hiring assistants to be utilized by the beneficiary, whether the work to be performed is part of the regular business of the petitioner, the provision of employee benefits, and the tax treatment of the beneficiary in relation to the petitioner;
- A description of the performance review process; and/or
- Copy of petitioner’s organizational chart, demonstrating beneficiary’s supervisory chain.
Given the increased scrutiny on these H-1B petitions, the Law Office of Melissa Harms will work with employers in these situations to gather the necessary documents and craft legal arguments to ensure the maximum chances of success for H-1B petitioners.
Tags: beneficiary, consultant, consultants, contractor, Donald Neufeld, employee, employer, H-1B, Memo, petitioner, relationship, third party, USCIS
Legal Updates | melissa | 
January 20, 2010 3:22 pm | 
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On November 5th, I spoke at the San Francisco Employer Advisory Council about the need for employers to maintain a corporate compliance program that includes aggressive I-9 training for human resource professionals and regular I-9 audits. In light of an increased budget dedicated to worksite enforcement and aggressive pursuit of criminal penalties for employing unlawful workers, employers are well advised to proactively address internal protocols relating to not only the Form I-9, but also immigration policies, social security “no match” letters, and steps to follw in the event of a government audit .
I am developing worksite enforcement resources that will be available on my website shortly under the “Information” tab. Please check back soon!
The US Customs and Immigration Enforcement (ICE) announced yesterday that record numbers of foreign students visited the US last year. The announcement was made in the context of “showcas[ing] the Department of Homeland Security’s (DHS) Open Doors Policy of balancing efforts to secure the nation’s student visa system while preserving the rich tradition of recruiting the best minds from around the world.”
Last month, I spoke at the Regional NAFSA conference in San Diego about options for foreign students to remain in the US after graduation. NAFSA is a association of International Educators, and is comprised mainly of international student advisors and staff who work with our international student population. Although more students are coming to the US to get educated, the possiblities for them to remain in the US and apply the knowledge they gained at our schools are more and more limited. The US needs workable visas for these highly educated students to spur innovation and promote job creation. If not, we’ll soon see other countries assume the role of the technology superpower that the US currently holds.
After presenting to over 100 international students and scholars at University of California, Davis last week, I promised that I would post my powerpoint online. Please bear with the rest of the site as we undergo a website redesign to offer more immigration resources and news. We should have the H-1B and PERM handouts back online shortly.
Pursuing Work Authorization and Permanent Residence After Graduation
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