Fall 2009
USCIS Conducting H-1B Site Inspections
T
he U.S. Citizenship and Immigration Services
is deploying contract inspectors to perform
thousands of on-site inspections of petitioning employers who have sponsored H-1B specialty occupation visa employees. These inspections
represent a new facet in Department of
Homeland Security enforcement efforts, following closely the issuance by Immigration and
Customs Enforcement of 652 I-9 audit notices
during a single week in June 2009. Initially,
reviews are slated to be conducted in 28 cities
with employers selected randomly.
Inside:
Q&A With
Jackson Lewis’
William Manning .......2
Expansion of
Global Immigration
Practice........................3
About the
Jackson Lewis
Global Immigration
Practice Group............4
The initiation of fraud enforcement measures
underscores DHS’s stated priority of focusing on
employers to identify immigration violations.
Companies must ensure they maintain policies
for compliance with immigration laws and
regulations. For employers with H-1B employees,
for example, the maintenance and accessibility
of required documentation in a Public Access
File are critical.
A Public Access File should include a copy of the
certified labor condition application, proof of
the prevailing wage determination, copies of
the employer’s compensation system or pay scale
According to USCIS, site visits will be conducted
used to determine the actual wage paid to the
without advance notice and will focus on
employee, materials used to satisfy employee/
identifying fraudulently filed H-1B applications.
Inspectors will verify that the company is an actu- union notification requirements, a summary of
al operating business entity and that the foreign benefits offered to U.S. workers who are in the
same occupational classification as H-1B employworker being sponsored is a legitimate employees, and additional documents in special situaee. In addition, inspectors will look for specific
tions. Documentation must be retained for one
types of fraud, including foreign workers who
year beyond the last date on which any H-1B
falsify applications, claims by foreign workers
employee was employed.
of employment with companies with whom the
worker is not employed, and companies that
It is also important that human resources personfalsify applications, including salaries. Reported
nel verify and preserve consistency between the
accounts indicate that inspectors will want to
company’s visa petitions and its personnel files.
meet and interview the H-1B worker, confirm
HR should be able to confirm readily the employthe employee’s identity, and meet with human
ee’s date of hire, job title, work location and
resources personnel to confirm specific details
salary. If your company receives an on-site visit,
regarding the H-1B worker’s employment.
be sure to ask for identification and inform your
immigration counsel as soon as possible.
DHS to Mandate E-Verify for All
Federal Contractors, Retract Social
Security No-Match Rule
A
fter months of deliberation on two controversial worksite immigration enforcement regulations, the Department of
Homeland Security has announced it will implement the Federal Contractor E-Verify regulation,
but will withdraw the Social Security No-Match
regulation.
Both regulations were created by the Bush
Administration as part of an immigration crackdown on U.S. employers and were intended to
increase employer responsibilities in verifying
the employment authorization of U.S. workers.
Unions, employers, and immigrant advocacy
groups strongly opposed both rules and
Continued on next page
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1
obtained a federal injunction against the Social Security
No-Match rule. The Obama Administration postponed
implementation of the regulations to permit a review of
these measures.
With the DHS’s July 8 announcement, the Federal
Contractor E-Verify rule can take effect as early as
September 8, 2009. DHS will propose a new regulation
rescinding the No-Match rule.
Federal Contractor E-Verify Rule
E-Verify is DHS’s voluntary electronic system that permits
employers to verify new hires against DHS and Social
Security Administration databases. DHS estimates that
over 134,000 employers have enrolled in the voluntary
E-Verify program, although some were required to use
it under state and local legislation.
Under the Federal Contractor E-Verify rule set to apply
to federal solicitations and contract awards Governmentwide, federal contractors and awardees will be required
to conduct immigration verification of all new employees. The original rule required verification of certain
existing employees as well, but indications are that the
Administration may reconsider this.
DHS has said that the new E-Verify rule will require an
estimated 168,000 additional federal contractors to
register and begin using E-Verify.
Because of the potential financial risks posed by the
E-Verify requirements, federal contractors should assess
the rule’s impact and their internal procedures for
compliance. Contractors should:
• Determine if an existing or anticipated federal
contract is subject to the new rule;
• Determine which, if any, current and new employees
will be subject to the rule;
• Determine if any exemptions apply or can be obtained;
• Review or create companywide E-Verify and I-9
programs, policies and procedures; and
• Institute corrective actions where needed, particularly
with regard to employees with unconfirmed employment authorizations.
Social Security No-Match Rule
The 2007 Social Security No-Match rule was enjoined by
federal court order shortly after being promulgated.
It never took effect. Prior to the injunction, the Social
Security Administration issued “No-Match” letters to
employers on an annual basis. The letters listed
employees who had discrepancies pertaining to the
social security numbers they presented to employers.
The No-Match rule would have required employers to
take steps to address their employees’ social security
discrepancies or risk being charged with “constructive
knowledge” that their employees were undocumented.
The regulation offered steps to take within certain
time periods to reverify an employee or terminate the
employee if the discrepancy could not be resolved.
Rescission of the rule will eliminate these requirements.
However, it remains to be seen whether the Social
Security Administration will continue to issue these
letters to employers, what actions employers may take
with respect to future No-Match letters if it does, and
whether DHS Special Agents will continue to view
No-Match letters and non-action on these letters as a
basis to sanction employers.
Q&A With Jackson Lewis’ William Manning
[Original version published in Employment Law 360 on July 31, 2009.]
William J. Manning is co-head of the Jackson Lewis
Global Immigration practice group. He has been practicing immigration law since 1986 and is the author of
“The Workplace Immigration Practice Guide,” published
by CCH, and “Visas and Work Permits for the USA.” Mr.
Manning grew up in Geneva, Switzerland. He received
his undergraduate and graduate degrees from Yale
University, and his law degree from Columbia University.
Q: What is the most challenging case you’ve
worked on, and why?
A: Several years ago, INS conducted an I-9 inspection of
one of our clients. The company had approximately
4,000 I-9 forms, about 3,000 of which were defective
in one way or another. The potential penalty was in
the range of $1 million to $6 million.
Normally, INS would have concluded the inspection
and issued a notice of intention to fine. My role
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would have been to negotiate the best settlement
possible. I was able to persuade INS that the errors
were the result of ineptitude rather than malevolence
and that a remedial program would be appropriate.
INS allowed the client to conduct a three-week, onsite I-9 form correction and reverification program
staffed by a lawyer and three paralegals.
At the end of this process, INS conducted an audit of
the corrected forms and determined that all the errors
had been resolved. No penalty was imposed.
Q: What accomplishment as an attorney
are you most proud of?
A: I represent an institution providing training to the
deaf and blind. One of their instructors, whose only
means of communication was through e-mail, Braille
and touch signing, was found to have been working
without a valid visa for over two years.
An administrator had concluded from various Web
sites that an H-1B visa could be extended simply by
putting a new Labor Condition Application form in
the public access file for the visa. I was able to convince USCIS that rather than excluding the instructor
from the U.S. for 10 years, as required by the
Immigration and Nationality Act, it should permit
a petition to extend the H-1B visa to be filed nunc
pro tunc as though filed in a timely fashion.
After the H-1B visa had been approved, I was able to
persuade USCIS that the instructor met the requirements for an extraordinary alien immigrant visa,
notwithstanding his period of out-of-status presence
in the United States.
Q: What aspects of law in your practice area
are in need of reform, and why?
A: The present employment-based visa system does a
poor job of serving the needs of the U.S. economy.
At the upper end of the wage scale, the arbitrary
limitation of 65,000 standard and 20,000 advanceddegree H-1B visas per government fiscal year, roughly
equivalent to 0.1 percent of the work force, makes it
difficult for U.S. employers to recruit the highly skilled
workers they need to be competitive in the global
market.
Almost half the graduates of U.S. universities in
sciences, technology, engineering and mathematics
are foreign-born and need H-1B visas to work in the
United States. In recent years, there have been about
160,000 petitions for the available 85,000 H-1B visas.
Only the reduction in hiring caused by the recession
has brought the number of applicants below the
number of available visas.
A better-educated and aging population has caused
a shortage of U.S. workers at the lower end of the
wage scale. Aside from the 66,000 visas per year provided by the H-2B program for temporary workers
and the H-2A visas available for agricultural workers,
the U.S. visa system does not offer any employment-
based visas for lower
skilled workers.
Until 1996, the system coped with
this anomaly by allowing employers
to obtain immigrant visas for their lowskill workers, after going through a multiyear Labor Certification and immigrant visa
process.
Since 1996, the system requires persons illegally
in the United States to spend 10 years outside
the country prior to being allowed to apply for an
immigrant visa. USCIS estimates that approximately
12 million aliens are caught in the bind of being
unable to legalize their status and unwilling to
abandon their lives in the United States for 10 years
on the chance of ultimately being allowed to return.
Undocumented workers are a drag on wages and
working conditions. Employers face the burden of
enhanced ICE worksite enforcement, the risk of
suddenly losing key employees and difficulties in
recruiting employees.
The employment-based visa system needs to be
reformed to enable employers to fill their labor
needs when U.S. workers are not available. The
system needs to be flexible and timely. Access to
a qualified work force is as necessary to economic
success as access to capital.
Q: Where do you see the next wave of cases in
your practice area coming from?
A: ICE worksite I-9 enforcement directed primarily at
employers rather than at undocumented aliens.
Q: What advice would you give to a young lawyer
interested in getting into your practice area?
A: Keep in mind that immigration law is a little like
emergency room medicine. It is complicated, it offers
an adrenaline rush, and mistakes can be life-altering.
Expansion of Global Immigration Practice
T
he immigration lawyers of The Bae Law Group have
joined Jackson Lewis’ Seattle office, significantly
increasing the capacity and national outreach of
the firm’s Global Immigration Practice. Davis Bae and his
team will support corporate clients in their immigration
issues with a focus on Jackson Lewis’ offices in Seattle,
San Francisco, Portland and Sacramento. With this addition, the firm’s Global Immigration Practice Group has 41
multi-lingual attorneys, paralegals, and administrative
staff serving the immigration needs of clients in every
geographic region of the United States.
Davis C. Bae, founder and sole owner of The Bae Law
Group, joins the firm as a Partner and will be based in
the Seattle office. Also joining are Associates Kelsey
O’Keefe and Kohei Yamamoto, who previously worked
with Mr. Bae. Jackson Lewis is now one of the largest
providers of comprehensive immigration law services in
the Pacific Northwest.
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About the
Jackson Lewis
Global Immigration
Practice Group
• Helps establish in-house visa programs and policies to
streamline international transfers and visa sponsorship
considerations.
T
The Practice Group partners are:
he Jackson Lewis Global Immigration Practice Group
is a multi-cultural team of professionals with a command of 15 languages, working together to provide
a broad range of immigration law services. Our attorneyparalegal team model leverages more than 100 years of
combined corporate immigration experience held by
group attorneys with the efficiency and cost-effectiveness
of a highly trained paralegal pool. The Practice Group:
• Assists companies in obtaining temporary and permanent employment visas for foreign employees in the
United States.
• Counsels recruiting staff and management about the
visa system to facilitate strategic planning for key
employees.
• Trains and advises employers on I-9 employment
eligibility verification, Social Security “no match,”
and E-Verify practice and requirements.
• Represents companies in government audits.
For outbound visa assistance, working in concert with a
network of leading foreign law firms, the Practice Group
offers seamless global coverage for the movement of
critical staff.
William Manning [email protected]
(Coordinator)
Sean Hanagan
(Coordinator)
[email protected]
Davis Bae
[email protected]
Victor Cerda
[email protected]
Minnie Fu
[email protected]
Raazia Hall
[email protected]
Harry J. Joe
[email protected]
David Jones
[email protected]
Pamela Mak
[email protected]
Otieno Ombok
[email protected]
Robert C. Seiger
[email protected]
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