Business Immigration Insights

On October 7, 2009, the Department of Homeland Security officially rescinded its August 2007 rule establishing "safe-harbor procedures" for employers who receive Social Security no-match letters.  These procedures never went into effect because a federal court in California issued a preliminary injunction against the rule after the AFL-CIO and other organizations filed suit.  The rescission reinstates the former rule on what constitutes "constructive knowledge" on the part of an employer that an employee is working without authorization. 

On September 28, 2009, DHS again extended the deadline for states to request an exemption from compliance with the REAL ID regulations, this time from October 11, 2009 to December 1, 2009.  The REAL ID Act of 2005 prohibits Federal agencies from accepting a driver's license or personal identification card for any official purpose unless the license or card has been issued by a State meeting the requirements of the Act.  In 2008, all States requested an extension of the original May 11, 2008 compliance date, and are now required to comply by January 1, 2010 unless an additional extension ...

US Immigration and Customs Enforcement (ICE) fined a Missouri poultry plant $450,000 for I-9 violations following a worksite enforcement investigation.  ICE arrested more than 130 employees who were not authorized to work in the United States.  As part of the settlement, the company agreed to train its human resource personnel on how to avoid hiring undocumented workers, and to establish a compliance program to ensure that its hiring and employment practices are consistent with US law.  In addition to the I-9 paperwork violations and violations for knowingly employing undocumented ...

On September 10, 2009, the U.S. Department of State released the October 2009 Visa Bulletin.  As anticipated, the news is not good.  Waiting lists for Indian and Chinese nationals whose U.S. employers have sponsored them for positions that require advanced degrees are backed up to early 2005.  For positions that require at least a bachelor's degree, wait lists stand at early 2002 for all nationalities except Indians (mid-2001).  Family-based categories are also painfully oversubscribed.  Depending on their nationalities, spouses and children of U.S. permanent residents must wait 4 ...

Under the Consolidated Natural Resources Act of 2008, U.S. immigration law will extend to the Commonwealth of the Northern Mariana Islands (CNMI), a chain of 14 Pacific islands located near Guam, beginning on November 28, 2009.  Inspection and admission of travelers to the CNMI will change, and authorized stays under the Visa Waiver Program in Guam and CNMI will increase from 15 to 45 days.  The Department of Homeland Security announcement may be read here.

On September 8, 2009, U.S. Citizenship and Immigration Services published additional guidance for contractors subject to FAR E-Verify. 

On September 1, 2009, four business associations filed in federal court for an emergency injunction to delay the implementation of the new E-Verify requirement for certain federal contractors, which will become effective on September 8, 2009, under the Federal Acquisition Regulation (FAR).   Check back for updates.

UPDATE:  The U.S. District Court for the Southern District of Maryland denied the injunction filed by the business coalition led by the U.S. Chamber of Commerce; however, an appeal will be filed with the Court of Appeals for the 4th Circuit.  Until a decision is reached, the ...

Under the Federal Acquisition Regulation (FAR), September 8, 2009, is the effective date for certain federal contractors to begin using E-Verify to confirm that their employees are authorized to work in the United States.  Although the new rule will apply to many federal contracts, there are broad exemptions and limitations.

On August 21, 2009, the Department of Labor (DOL) issued a bulletin discussing the interaction between the H-2B visa program and the Fair Labor Standards Act (FLSA).  After an extensive review, and under its wage and enforcement authority, the DOL has concluded that employers are responsible for paying both transportation and visa expenses of their H-2B workers, since these are "primarily for the benefit of the employer". 

U.S. Citizenship and Immigration Services (USCIS) has engaged outside contractors to conduct thousands of site visits to petitioners, including companies that have sponsored employees in H-1B, L-1 or O-1 status.  Typically, the site visits are conducted after approval of the petition.  The investigators may arrive unannounced at the work site, or call the company ahead of time to plan a time to visit the company office or facility.  According to information provided by one such investigator, the purpose of the site visit is to verify that the company is a real operating business ...