H-1B Visa Quota Will Open April 2

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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.

After Acquired Evidence of Illegal Immigrant Status Bars Discrimination Suit

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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.

Supreme Court Says States May Require Use of E-Verify

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On May 26, 2011, the U.S. Supreme Court held that Arizona may suspend and terminate business licenses of employers who are found to willfully employ workers who are not authorized to work in the U.S. The Court also found that the state may require E-Verify as a prerequisite to doing business in the state. For the Court's full decision inChamber of Commerce v. Whiting, click here.

In the 5-3 ruling, the U.S. Supreme Court majority relied on a portion of the 1986 Immigration Reform and Control Act (IRCA) which expressly provided that states and cities could impose criminal or civil sanctions for immigration violations of employers through licensing laws. And that's what Arizona took advantage of when it crafted its legislation in 2007.

The Court also noted that while E-Verify is optional at a national level, the federal statute was silent as to the states' role and therefore it did not precludestates from imposing a mandatory scheme. We arenot aware of any businesses to date that have been fined or shut down in Arizona as a result of the state statute. However, the U.S. Supreme Court decision certainly clears the way for Arizona to begin aggressive enforcement if it so chooses.

It should be notedthat it would be far easier for Arizona to enforce mandatory E-Verify than it would be to determine if an employer is willfully hiring unauthorized workers. The latter is a complex matter that even U.S. Immigration & Customs Enforcement (ICE) finds challenging.We don't foresee the State of Arizona or its municipalities becoming I-9 audit experts. Furthermore, E-Verify is only to be used for new hires unless the employer is a federal contractor.

The most likely impact of this decision for California businesses is that it is going to put pressure on Congress to roll out with mandatory E-Verify nationwide. Otherwise, Congress will likely find that states will continue to create a patch-work of inconsistent rules. Rep. Lamar Smith (R-Texas and Chairman of the House Judiciary Committee) has indicated that he plans to introduce such a bill in the near future. California employers may want to enroll in E-Verify soon so that they are ahead of the curve and avoid having to scramble to implement it when Congress makes it mandatory.

Critics have complained that E-Verify is not accurate. However, most of those criticisms are out-dated. E-Verify has made enormous strides over the last 3 years. CIS has an army of software developers working full time to continually improve the system. The latest figures show that 99% of all inquiries are now confirmed within minutes. Of the remaining 1%, most are for people that are not work authorized. Of the few that are, the Social Security Administration is more than willing to keep a case open for several months in order to make sure that they do not cause a U.S. worker to be wrongly terminated based on immigration status. The eight-day tentative confirmation period for E-Verify can now be easily tolled by the federal government when the facts warrant it.
Furthermore, in an effort to assist employers with the complicated I-9 process, US CIS has also recently rolled out with a more simplified on-line I-9 assistance center. It is called "I-9 Central" and has sample photos of various permissible documents and offers simplified guidance to filling out the I-9. To review this information, click here. For additional I-9 guidance and CDF's top 10 do's and don'ts, see our prior post on the subject here.

EDD Will Deny Unemployment Benefits to Claimants Not Authorized to Work in US

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When EDD receives a new application for unemployment, they are first verifying the social security number to determine if it is valid and assigned to that person. If there is any discrepancy, they are sending a letter to the Employer requesting clarification.

As part of the eligibility for unemployment, EDD requires that the claimant be "ready and willing to immediately accept new employment." Therefore, if the applicant does not have the legal right to work in the U.S., then they are not eligible for unemployment benefits.Click here for EDD information on this subject.

Suppose also that the Employer has decided to merely reduce the hours of an existing employee, and the employee then files an unemployment claim for partial benefits with EDD. If EDD then sends a social security mis-match letter to the Employer, it will be deemed by Immigration & Customs Enforcement (ICE) as constructive notice to the Employer that the individual may not be work authorized. This would require the Employer to take further investigative action. For protocols from the U.S. Department of Justice on how to handle social security mis-match letters, click here.

For more information on immigration matters, contact Greg Berk, Chair of the CDF Immigration Practice Group at (949) 622-1661 or at gberk@cdflaborlaw.com.

DHS Rolls Out E-Verify Self Check

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U.S. Citizenship & Immigration Services announced that they have rolled out with a pilot project called "E-Verify Self Check." The program allowsindividuals to prescreen themselves through E-Verify by submitting on-line confidential data regarding their identity and immigration status. This will enable people to pre-determine if they are confirmed in the E-Verify database as authorized to work in the United States. If not, it will put them on notice that they need to visit the Social Security Administration to resolve the problem. This pilot program is only available in five states currently--Mississippi, Arizona, Idaho, Colorado, Virginia, and the District of Columbia. California is not included at this time. For more information, contact Greg Berk, Chair of the CDF Immigration Practice Group at gberk@cdflaborlaw.com.

The Congressional Stalemate on Immigration Reform Continues

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The current stalemate in Congress regarding immigration reform is untenable for all sides -- for employers, the government, the American people, and 12 million undocumented workers. Greg Berk, chair of our Immigration Practice Group, lays out a practical roadmap for resolution of this 25 year-old challenge in his recent article"Reforming Comprehensive Immigration Reform: Breaking The Congressional Stalemate." To view this article, click here.

US CIS Releases New I-9 Manual

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U.S. Citizenship & Immigration Services (CIS) released a new I-9 manual on January 5. The manual is a big improvement from previous versions in that it helps clarify many issues and is easier to navigate through. It can be found at http://www.uscis.gov/files/form/m-274.pdf.

Also, it should be noted that Immigration & Customs Enforcement (ICE) has been aggressively fining companies for mere technical I-9 violations. Even where the company has no unauthorized workers, ICE has recently been coming down hard on mere technical violations.

For example, in September 2010, Abercrombie and Fitch was fined $1 million because it's digital I-9 software had a glitch which resulted in some I-9's having blank fields. Even though all of the employees in question were work authorized and all had I-9's, ICE still fined the company in order to send a message. The Officer in Charge of the investigation noted: "This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants. " The ICE press release can be seen at http://www.ice.gov/news/releases/1009/100928detroit.htm.

Until Congress creates a digital social security card to help employers through the process, I-9's that are not compliant will affect the value of your company and expose management to liability. Employers are encouraged to be proactive in this area and ensure compliant I-9 practices.

H-1B Professional Visa Quota Will Be Reached Soon

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If your company is thinking of sponsoring a foreign national worker for an H-1B visa, be advised that the quota will likely be reached soon -- possibly later this month or sometime in January. Approximately 82% of the quota has been used up. The H-1B visa is for professional workers working in such fields as information technology, science, engineering, accounting, etc. Once the quota is reached, the next filing period will begin on April 1, 2011 with a start date of October 1, 2011.

Be advised that generally speaking, a foreign national who is already in H-1B status and working for another company, is eligible to transfer and work for your company. They are not subject to the H-1B quota since they are already in H-1B status. However, their authorized time to remain in the U.S. does have limits and this needs to be explored prior to extending any job offer.

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 whole host of permissible follow up questions that can and should be delved into prior to extending an offer.

For more information, please contact Greg Berk, Chair of the CDF Immigration Practice Group at (949) 622-1661 or gberk@cdflaborlaw.com. Before extending a joboffer to a foreign national, employers are encouraged to seek legal advice to ensure eligibility and immigration compliance so as to avoid any surprises.

DOJ Gives Guidance Regarding Social Security No-Matches

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The U.S. Department of Justice (DOJ) weighed in this week with guidance on how Employers should handle social security number no-matches for employees. DOJ stressed that a no-match should merely be the start of an inquiry and a request to the employee to help resolve the discrepancy. It should not be cause for an immediate termination, or immediate filling out of a new I-9.

There is still an open question as to how much time an Employer has before they should request a new I-9, and if necessary terminate an Employee with a social security no-match. DOJ stressed that each case is fact specific. Interestingly, they also noted that for E-Verify employers, the Social Security Administration (SSA) can now hold a tentative non confirmation in abeyance for up to 120 days if the facts warrant it.

Causes of social security no--matches include: name changes due to marriage or divorce, input errors by SSA staff; reporting errors by an employer or employee, identity theft, errors in reporting hyphenated surnames, and fraud.

This new guidance from DOJ is helpful. However, employers are still concerned whether U.S. Immigration & Customs Enforcement (ICE) will have the same view as to how much time is reasonable to resolve a no-match. Until Congress decides to create a uniform electronic verification system, employers will still be left with many uncertainties. For information on the latest DOJ pronouncement, see: http://www.justice.gov/crt/osc/htm/SSA.php. For case specific questions, contact Greg Berk, Chair of our Immigration Practice Group at gberk@cdflaborlaw.com.

Homeland Security and ICE Announce Record Immigration Enforcement Statistics

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This week, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced record-breaking immigration enforcement statistics achieved under the Obama administration--including unprecedented numbers of convicted criminal alien removals and overall alien removals in fiscal year 2010.

Not only have DHS and ICE removed more convicted criminal aliens than ever before,they alsoannounced that they have issued more financial sanctions on employers who knowingly and repeatedly violate immigration law than in history.

Employers should be aware that since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions.

To ensure that you are up to date on ICE's activities, consider registering for CDF's upcomingOctober 19Webinar "I-9 Worksite Enforcement: How To Keep Things Cool With ICE," presented by Greg Berk. To register, click here.