print

email

Following its recent release of a new I-9 form, the U.S. Department of Homeland Security has now announced that a new I-9 manual has been released.  The manual is a useful guide to some of the more obscure procedures involved with the I-9 form.  The manual can be found here. 

print

email

On Friday, March 8, 2013, the U.S. Department of Homeland Security finally issued the long-awaited updated I-9 Form.  The old form can still be used for two months until May 7, 2013.  The new I-9 form is available here.

The I-9 form is used to verify work authorization of new hires in the U.S. as well to re-verify work authorization of foreign nationals working with temporary work authorization.  The new and old forms are very similar in content.  However, unlike the old one-page form, the new form is 3 pages long and easier to understand and fill out.  The new form also clearly differentiates between employees who only need to be verified once (U.S. Citizens and permanent residents) and foreign nationals who are here temporarily and must be re-verified whenever their work authorization expires. 

Regarding the list of acceptable documents that an employee tenders, the new form emphasizes that if a social security card is selected by the employee as a List C document, only an unrestricted social security card is acceptable.  If the social security card has any restrictive language on it, it cannot be used for I-9 purposes since the individual may have obtained it when they had temporary work authorization and now no longer do. 

Although there is a Spanish version of the I-9 form as well, it may only be used in Puerto Rico. 

As a reminder, at the time of hire, employers must inspect an original document chosen by the employee from List A, or one each from Lists B and C.  It must be done within the first 3 days of hire.  It is recommended that copies of the documents be attached and retained to the I-9 as further proof of the good faith efforts by the Employer to comply with the mandate.  If the documents appear to be authentic, then the employer will not be liable if it later turns out they are not authentic.  The I-9 forms should be retained for 3 years after termination of employment.  Employers who have enrolled in E-Verify must still have a paper or digital I-9 on file for every employee. 

Employers are encouraged to periodically audit their I-9’s and take corrective action where errors are found. 

print

email

The U.S. Department of Homeland Security will accept new H-1B visa filings on April 1 for a start date of Oct 1.   H-1B work visas are for foreign national employees that are college degreed professionals such as software developers, engineers, chemists, scientists, financial analysts, etc.   The annual quota of 85,000 visas applies to first time H-1B’s, not to extensions with the same company or transfers to other companies. 

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.   This year's quota is expected to fill up relatively fast. 

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized.  Some employees are eligible for a one-time extension of their OPT (based on their STEM education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

For more information, please contact Greg Berk.

print

email

The U.S. Department of Homeland Security recently announced that certain foreign nationals who are in the U.S. who either entered the U.S. illegally, or entered legally and overstayed, will be eligible for waivers of the bar to receiving their immigrant visa from abroad.  The program begins March 4, 2013 and only certain individuals will qualify.

As a brief background, most individuals must be in status in order to obtain a green card in the U.S.  However, some individuals who either had no status or were out of status were nonetheless still able to do so if they had immigrant petitions filed by employers or certain family members prior to April 30, 2001.   Individuals who were out of status and had immigrant petitions filed after April 30, 2001 are not eligible to adjust status in the U.S. to obtain permanent residency and must instead obtain an immigrant visa abroad from a U.S. Consulate. 

Complicating matters was that Congress created a "ten-year bar" in 1996 whereby individuals who were out of status and then left the U.S. were not allowed to return for 10 years unless they can show extreme hardship to a U.S. Citizen spouse or parent.  As a result, many people left the U.S. to file their waiver applications from abroad, only to get stuck abroad (usually at Ciudad Juarez, Mexico) for up to a year while their hardship waiver applications laggard in a long queue. 

Fortunately, under the newly announced program, eligible individuals can apply for their waiver state side and then upon approval, they will only need to spend 2 weeks abroad.

Eligible individuals must first have an approved immigrant petition filed by a sponsor and be able to show extreme hardship to a U.S. Citizen spouse or parent if the waiver of the 10-year bar is not approved.  Ironically, a showing of extreme hardship to U.S. Citizen children does not qualify under the law as written by Congress back in 1996.  3Also, if an individual has other grounds of inadmissibility (crimes, prior deportation, misrepresentation etc.) then the I-601A waiver will not apply.

The announcement from Secretary Janet Napolitano can be viewed here.

print

email

Last week, President Obama signed a bill extending for another three years the EB-5 Immigrant Investor Program.   The program allows foreign investors to invest $500,000 in an approved Regional Center in exchange for the grant of permanent residency to themselves and their family.  Alternatively, they can invest $1,000,000 in their own business in the U.S. in exchange for permanent residency.  In an age of large backlogs and wait times for permanent residency, the EB-5 Program has become a very popular way to move to the front of the visa line.  For more information, contact Greg Berk.

print

email

The U.S. Department of Homeland Security (DHS) made a major announcement Friday, indicating that beginning sometime in the next 60 days, certain undocumented individuals who have continuously resided in the U.S. for at least 5 years will be eligible for deferred action from deportation and will be given work permits for 2 years.  And their status and work permits will be renewable.   

To be eligible, the individuals (1) must have entered the U.S. prior to age 16 and be under age 30, (2) they must be in high school, have graduated high school, or  received an honorable discharge from the U.S. military, and (3) must have good moral character. 

This goes beyond the previously proposed “Dream Act” which contemplated requiring the individual to be in college or have a U.S. college degree.   Deferred Action means that the Government recognizes that the person is deportable but will defer any action to deport the individual.

Estimates are that up to 800,000 young individuals in the U.S. may qualify for this benefit.  California generally has at least 25% of the U.S. foreign national population which means this could affect over 200,000 Californians. 

The Obama Administration used their executive authority to grant deferred action as the legal basis to offer this benefit.  The rule underscores how date sensitive immigration cases are.  Individuals who won’t qualify include those who entered the U.S. on or after age 16, or have not yet lived here continuously for 5 years, or are age 30 or over.    

The Government will be issuing more details in the ensuing weeks.  The CDF Immigration Practice Group can assist with further questions.
The initial DHS announcement is available here.

For more information about immigration issues, we invite you to attend CDF's complimentary webinar on June 20, 2012, which will cover a variety of important immigration law issues.  For more information and to register, click here.

print

email

On June 20, 2012, from 10:00a.m. -11:00 a.m. (PDT), CDF Immigration Practice Group Chair Greg Berk will be hosting a complimentary webinar on Immigration in a Nutshell:  What Every Employer Should Know.  This webinar will cover the most pressing and current immigration information employers need to know in the following areas:

• B-1 Visitor Visas for Overseas Employees, Vendors and Customers

• OPT and STEM Work Permits for Foreign National Graduates of U.S. Colleges

• H-1B Visa Compliance

• PERM Labor Certification & Challenges to Sponsoring  an Employee for Permanent Residency

• Latest I-9 Enforcement Trends & Best Practices to Ensure Compliance

Attendees will learn the essential immigration compliance issues facing employers and how to avoid the most common mistakes that regulators often look for.  We hope you will join us for this informative webinar.  For more information and to register, click here.

print

email

U.S. Immigration & Customs Enforcement released an updated list of college majors that will qualify for an extension of the Optional Practical Training (OPT) work permit after a foreign national graduates college.  Those students majoring in science, technology, engineering, and math (STEM) can qualify for a 17 month extension of their work permit, beyond the usual 12 month OPT period.  This allows employers more time flexibility in sponsoring the individual for an H-1B work visa.  For a full list of STEM majors, click here.  For  more information, contact Greg Berk, with CDF's Immigration Practice Group.

print

email

The Government will accept new H-1B visa filings on April 2 for a start date of Oct 1.   H-1Bs are for college degreed professionals such as software developers, engineers, chemists, scientists, teachers, financial analysts, pharmacists, and dentists.  The annual quota of 85,000 visas applies to first time H-1Bs, not to extensions with the same company or transfers to other companies. 

It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized.   Due to the recession, the annual quota is not expected to fill up right away.  However, employers should not wait too long.  It is hard to predict when this year’s quota will be filled – possibly anywhere from one to five months.

Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT).  Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized.  Some employees are eligible for a one-time extension of their OPT (based on their education in science, technology, engineering, and math), but eventually will still need the H-1B visa.

Please note that it’s important that before you extend a job offer to a foreign national who requires sponsorship, you make sure that all immigration eligibility issues are covered such as their immigration history, eligibility for the visa, how much time in H-1B status they will be allowed, prevailing wage, etc. You don’t want any surprises. 

Immigration issues should first be addressed on your job application and include two questions regarding work authorization:  First, “Are you authorized to work in the U.S.” and second,  “Will you require sponsorship to work in the U.S.”   If the applicant answers “yes” to sponsorship, there are a host of permissible follow up questions regarding immigration status and history that can and should be delved into prior to extending an offer.

For more information and/or assistance with H-1B issues, please contact Greg Berk at (949) 622-5851 or gberk@cdflaborlaw.com.

print

email

This week, a California court held that the after acquired evidence doctrine barred an employee's disability discrimination claims where in the course of litigation the employer learned that the employee was not authorized to work in the United States. In Salas v. Sierra Chemical,Plaintiff Vicente Salas was a seasonal worker at Sierra Chemical who hurt his back and filed a workers' compensation claim. He was not recalled to work following the annual layoff, and claimed that the failure to do so constituted disability discrimination, and a failure to hire in retaliation for filing aworkers' compensationclaim. During the litigation, Sierra Chemical investigated and determined that the social security number provided by Salas in the hiring process did not actually belong to him. Instead, it was a social security numberbelonging to a resident of North Carolina. Based on evidence that Salas had misrepresented his eligibility to work in the United States and had provided false information to the company, Sierra Chemical filed a motion requesting that the court throw out Salas' lawsuit. The basis for the motion was the after acquired evidence defense, with Sierra Chemical arguing that had they known the truth about Salas' ineligible to work status he never would have been hired in the first place and, therefore, Sierra Chemical couldnot properly be held liable for a failure to hire/re-hire based claim. The court agreed with Sierra Chemical.

The court's detailed explanation of the after acquired evidence doctrine reconciles facially differing outcomes of the doctrine's application. The after acquired evidence doctrine serves as a defense to allegedly discriminatory failure to hire or wrongful termination where the evidence acquired that would have resulted in the challenged termination or refusal to hire. Application of the doctrine in the oft-cited Camp v. Jeffer, Mangels, Butler & Mamaro, 35 Cal.App.4th 620 (1995) resulted in a complete defense where a husband and wife alleged retaliatory discharge, and the law firm discovered that the pair hid previous felony convictions, lying on their job applications, and causing the firm to violate a prohibition to have former felons perform government work. In apparent contrast, the court in Murillo v. Rite Stuff Foods, Inc.,65 Cal.App.4th 833 (1998), held that a plaintiff's claims for discrimination and sexual harassment were not barred by the evidence that she was an undocumented worker and ineligible to work in the United States.

Here, the court applied the doctrine to find that Salas' claims were barred by the after acquired evidence of his immigration status because -- unlike the sexually harassed employee in Murillo -- "Salas's discrimination claims are tied to the failure to hire." Salas claimed that Sierra Chemical did not hire him because of his disability, a claim that fails because he was not lawfully eligible to be hired. In Murillo, the plaintiff's alleged sexual harassment was unrelated to the company's employment decision. Having hired her, the company was not free to deny her the normal protections of the workplace. Importantly, as with Camp but unlike Murillo, Salas' pilfered use of a social security number misrepresented a job qualification imposed by the federal government, placing his employer, like the Jeffers firm in the unenviable position of having made misrepresentations to the government.

In short, Salas is an employer friendly decision, but serves only to clarify, not to expand, the after acquired evidence defense.