When Immigration Matters

Department of Justice Sues Vegas Casino for I-9 Problems

Posted by Karen-Lee Pollak on Sat, Jun 02, 2012 @ 10:30 AM

I-9, USCIS, ICEThe Justice Department announced today that it filed a lawsuit against Tuscany Hotel and Casino LLC in Las Vegas, alleging that the company engaged in a pattern or practice of discrimination in the employment eligibility verification and re-verification process. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the hiring, firing and employment eligibility verification process, regardless of their national origin or citizenship status.

The complaint alleges that Tuscany treated non-citizens differently from U.S. citizens during the employment eligibility verification and reverification process by requesting non-citizen employees to provide more or different documents or information than required during the initial employment eligibility verification process, and demanded specific documents during the reverification process. The complaint further alleges that Tuscany subjected lawful permanent residents to unnecessary reverification based on their citizenship status after requesting and entering into the payroll system the expiration date of their Permanent Resident Cards (green cards) for purposes of reverification." - DOJ, May 31, 2012.

Visa Bulletin for March 2012 is Out.

Posted by Karen-Lee Pollak on Mon, Feb 13, 2012 @ 11:42 AM

Dallas Immigration lawyerVisa Bulletin Dates – Employment – March 2012

Great News.  EB2 for India and China moves ahead to May 2010. 

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01MAY10 01MAY10 C C
3rd 15MAR06 01JAN05 22AUG02 15MAR06 15MAR06
Other Workers 15MAR06 22APR03 22AUG02 15MAR06 15MAR06
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted
Employment Areas/
Regional Centers
and Pilot Programs
C C C C C

*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6. The Department of State has a recorded message with visa availability information which can be heard at: (202) 663-1541. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

Immigration Attorney Karen-Lee Pollak Talks I-9 in Texas Lawyer

Posted by Michael Pollak on Fri, Feb 03, 2012 @ 11:58 AM

Karen-Lee PollakImmigration Attorney Karen-Lee Pollak provides nine tips to pass the I-9 ICE test in this week's issue of Texas Lawyer. 

Under President Barack Obama's administration, U.S. Immigration and Customs Enforcement has shifted its enforcement focus away from the worker and toward the employer. This has increased worksite investigations and the levy of substantial fines, penalties and criminal charges. If that weren't enough for the legal department to worry about, shareholders may bring director-and-officer civil suits connected with the company's hiring of undocumented workers or alleging inadequate due diligence of an acquired or merged company's immigration procedures.

Federal law requires employers to verify all new employees' employment eligibility within three business days of hire by completing and retaining Form I-9. Employees must complete the form within 24 hours of hire. While on its face the form appears quite simple, it can be confusing and difficult to complete. Given that, what lessons can in-house counsel learn to help their companies avoid punitive fines for faulty recordkeeping?

Read the rest of the article...

USCIS Launches I-9 Central For Employment Eligibility Verification

Posted by Karen Pollak on Fri, May 13, 2011 @ 12:59 PM

U.S. Citizenship and Immigration Services (USCIS) today launched I-9 Central, a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification.

This free, easy-to-use website builds on recent employment-related enhancements by providing employers and employees simple one-click access to guidance to properly complete Form I-9 and better understand the Form I-9 process.

The launch of I-9 Central follows the introduction of other important USCIS employment-related resources. These resources include E-Verify Self Check, a service launched in March that allows workers and job seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274)” published earlier this year.

I-9 Central includes sections about employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. I-9 Central also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the Form I-9 process.

Federal law requires every employer and agricultural recruiter/referrer-for-a-fee hiring an individual for employment in the United States to verify his or her identity and employment authorization through completion of Form I-9, Employment Eligibility Verification.

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USCIS Releases 2011 Handbook for Employers M-274 | Immigration

Posted by Karen Pollak on Wed, Jan 19, 2011 @ 8:44 AM

New M-274 Handbook For Employers Fills Gaps In Form I-9 Guidance

by Avalyn Langemeier, Susan K. McConn and Kari Konikowski

M-274The United States Citizenship and Immigration Services (USCIS) recently issued new guidance for employers on the Form I-9 process. The Handbook for Employers (Rev. 01/05/2011), also known as the Form M-274, has been updated and revised to provide guidance to employers on how to complete the Form I-9, Employment Eligibility Verification. The Form I-9 must be completed for every worker hired after November 6, 1986, regardless of whether the employee is a U.S. citizen or not. The following is a summary of the changes found in the revised Handbook:

Employees with Temporary Protected Status (TPS), Pages 10 - 11

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security may extend a country's TPS designation and issue a Federal Register notice to automatically extend expiring Employment Authorization Documents for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an Employment Authorization Document that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary's expired Employment Authorization Document is valid as a List A document.

The Handbook now provides guidance on how to identify a TPS Employment Authorization Document, how to determine whether the Department of Homeland Security has issued an automatic extension of expiring Employment Authorization Documents, and how to explain that the TPS status was extended on the Form I-9.

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status ("The Cap Gap"), Pages 11- 16

The Handbook provides a detailed explanation on how to complete Form I-9 for those individuals in J-1 exchange visitor status (pages 11-13) and F-1 and M-1 student status (pages 13-15). Additionally, the Handbook explains how to complete the Form I-9 for F-1 students who are changing status to H-1B and are eligible for a "cap-gap" extension of status and employment authorization. The Handbook confirms that the student's employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student's H-1B status will begin on October 1. Additionally, the Handbook advises that an employer must re-verify a student's Form I-20. The Form I-20 must show that the cap-gap extension was endorsed by the student's designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability), Page 17

The Handbook now states that an employee in valid H-1B status who changes ("ports") to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior 2009 version of the Handbook required the porting H-1B employee to obtain a Form I-797 Receipt Notice from U.S. Citizenship and Immigration Services (USCIS) prior to beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official Form I-797 Receipt Notice.

The current version of the Handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/ I-94A issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write "AC21" on the Form I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the Form I-9, and attach documentation as specified in the Handbook.

Extensions of Status, Pages 17 and 18

The Handbook explains that an employee with a petition for extension of status timely filed before the employee's work authorization expires is eligible for continued work authorization for up to 240-days beyond the expiration date of the authorization as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write "240-Day Ext." and record the date the employer submitted the Form I-129 to USCIS in the margin of Form I-9 next to Section 2. (Page 17)

Additionally, the Handbook expands upon what documentation should be added to the Form I-9. Previously, the employer was advised to attach only the USCIS Form I-797 Receipt Notice. Now, the Handbook adds that the employer should retain the following documents with the Form I-9 in this situation:

1. A copy of the new Form I-129 that was filed for the extension,

2. Proof of payment for the filing of the new I-129, and

3. Evidence that the new Form I-129 was mailed to USCIS.

4. After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and retained with the Form I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number and expiration date listed. The Handbook also adds that the employer must give to the employee the Form I-94A, which is evidence of the employee's employment authorized nonimmigrant status.

Interruptions in Employment, Page 20

The Handbook now provides guidance to employers that are uncertain about whether a new Form I-9 is required after an employee has experienced a brief interruption in employment. The Handbook provides examples of situations which include "continuing employment," such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, the same employer at another location, etc. An employer is not required to complete a new Form I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems, Page 24

The Handbook offers expanded guidance to employers that use paper, electronic systems, or a combination of paper and electronic systems to retain a Form I-9. Employers must follow certain guidelines should they choose to retain Forms I-9 in an electronic generation or storage system, and these guidelines are outlined in the Handbook. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permits the identification and retrieval of documents and records maintained in the system. Employers that are currently using an electronic retention system or contemplating the future use of an electronic retention system should review the information outlined in the Handbook and consult with immigration counsel.

E-Verify and Federal Contractors, Pages 19 and 35

The previous version of the Handbook offered guidance to employers regarding participation in E-Verify and the corresponding Form I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the Handbook provides additional guidance to Federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The Handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The Handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing Forms I-9, then a new Form I-9 must be completed.

Questions and Answers Section, Pages 37 - 49

The Handbook has expanded upon its Questions and Answers (Q&A) section in an effort to provide clarification to employers in a variety of situations related to Forms I-9, including the following helpful information: 

  • A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for Form I-9 purposes, (pages 38-39);
  • An employer may accept a Social Security Card that has not been signed as a valid List C document, (page 39);
  • An employee may present an unexpired Form I-94 card notated with work-authorized status in two situations: 1) as a List A document along with his or her foreign passport; or, 2) as a List C document demonstrating work authorization from USCIS, (page 41);
  • Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the Form I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the Form I-9 detailing the employee's reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide, (pages 41-42);
  • Significantly more information is provided for employers in the Commonwealth of the Northern Mariana Islands (CNMI), including eight additional Q&As and pictures of sample documents that may be acceptable for Form I-9 purposes in the CNMI only (pages 48-49, 59).

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