MAJOR RECENT DEVELOPMENTS IN IMMIGRATION IN IMMIGRATION

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1 RS Ryan, Swanson?C Document * Cleveland hosted at I A N \ 1 R MAJOR RECENT DEVELOPMENTS IN IMMIGRATION IN IMMIGRATION by Rachel Y. Han 2007 Immigration has recently been a a prominent topic topic of of discussion with with unfulfilled promises of comprehensive immigration reform in Congress. in Although Although immigration immigration issues have enjoyed newly added added publicity, publicity, for employers for employers in the United in the States, United States, immigration issues are a challenge they have to face every day, whether it is in the form of "No-Match" No-Match letters from the the Social Security Administration, changing regulations by by the Department of of Labor, Labor, delays or delays in processing processing by the U.S. by the Citizenship U.S. Citizenship and and Immigration Services and the Department of State. A. SSA No-Match Letters Every year, the Social Security Administration (SSA) (SSA) sends sends thousands of "nomatchmatch letters to to employers, informing them them that certain that certain employees' employees names and names and of no- corresponding Social Security numbers provided on on Forms Forms W-2 W-2 do not do not match match SSA's SSA s records. Each year, the SSA finds that that about million employee wage wage reports reports have have names and corresponding Social Security numbers that that do do not not match match SSA's SSA s records. records. This is about 4% of the 250 million wage reports the SSA receives each year. For Tax Year 2006, employers will receive a letter a letter from from U.S. U.S. Immigration and and Customs Enforcement (ICE) accompanying the the SSA SSA "no-match" no-match letter, letter, informing informing employers on how to to respond to to the the employer no-match letter letter in a in manner a manner consistent with obligations under U.S. immigration laws. laws. This This a is generic a generic form form letter letter and does and does not mean that employers are necessarily being examined by ICE. 1. What Employers Should Do The Department of of Homeland Security (DHS) (DHS) regulations and and the ICE the letter ICE letter describe what steps employers should take when they they receive these these SSA SSA "no-match" no-match letters. (a) (b) (c) Verify within days days that that the the mismatch was was not the not result the result of a of a record-keeping error on the employer's employer s part. If it it was not not a record-keeping a error, error, request request that the that employee the employee confirm the accuracy of employment records. If necessary, ask the employee to resolve the issue with SSA Third Avenue, Suite 3400, Seattle, Washington phone fax

2 (d) (e) If the preceding steps led to a resolution of the problem, follow the the instructions on the no-match letter itself to correct information with SSA, and retain a record of of the the verification with with SSA, SSA, noting noting the the date and time of your verification. If the information could not not be be corrected within days days of receipt of receipt of the "no-match" no-match letter, complete a new 1-9 I-9 form within 33 days (93 (93 days from date of receipt of of letter) without using using the the questionable Social Security number, but instead using documentation presented by the employee that that conforms with with the 1-9 the document I-9 document identity identity requirement and includes a photograph and other biographic data. Employers who are unable to to confirm that that the the employee is authorized is to work to work risk liability for for violating the the law law by knowingly by knowingly continuing continuing to employ to employ unauthorized unauthorized persons. CAVEAT: There are many reasons for a mismatch between employer and SSA records, including transcription errors and and name changes due to to marriage that that are are not not reported to SSA. Upon receipt of of a "no-match" a no-match letter, letter, employers employers should should not assume not assume that the that the employee has done anything wrong. If If an an employer takes takes action action against an an employee based on nothing more substantial than a mismatch letter, the employer may, in fact, be violating the law. 2. Consequences for not complying with instructions An employer may decide to ignore the SSA "no-match" no-match letter and not take any of of the steps listed above. This may have broader ramifications than than just just ignoring a letter a letter from the SSA. The SSA shares mismatch information with the Internal Revenue Service (IRS) and under 26 U.S.C. 6674, the the employer may be be fined $50 per per violation for failing to provide correct information on on a wage statement. Immigration law states that it it is is unlawful for an for employer an employer to employ to employ a person a person knowing "knowing the the alien alien is is (or has become) an unauthorized alien alien with with respect respect to such to such employment." employment. 8 U.S.C. 1324a(a)(2). Both regulations and case law support the the view view that an employer may be found to have violated this law by by having constructive, rather than actual knowledge that that an employee an employee is unauthorized is unauthorized to work. to The work. word The word knowing "knowing" has has been defined as as including "knowledge knowledge which which may fairly may be fairly inferred be inferred through notice of certain facts and circumstances which would lead lead a person, a through the exercise of reasonable care, to know about a certain condition." condition. 88 CFR 274a.1(l)(1). The criminal penalties for for knowingly hiring hiring or continuing or continuing to employ to employ aliens without aliens without authorization to work in in the the United States shall be be a a fine up up to to $3,000 per unauthorized alien, imprisonment for up up to to six six months, or both. or both. 8 CFR 274a.10(a). Civil penalties Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 2

3 may also be imposed by the Department of Homeland Security or an administrative law judge in the amount of of $250 to $2,000 for each unauthorized alien if if it it is is a a first first offense, $2,000 to $5,000 for each unauthorized alien if it it is is a a second offense, or $3000 to $10,000 for each unauthorized alien if if the the employer already has has two two or more more offenses. offenses. 8 CFR 8 CFR 274a.10(b). If an employer is determined to to have failed to to comply with with the the requirements for for verifying employment authorization when when hiring hiring an individual, an it shall it shall be subject be subject to a to a civil penalty of of an an amount between $100 $100 to to $1,000 for for each each violation which which occurred occurred before September 29, 1999, and an amount between $110 and $1,100 for each violation after September 29, CFR 274a.10(b)(2). The Department of Homeland Security or the administrative law law judge determining the the penalty penalty will consider will consider the size the of size theof the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or or not not the the individual individual was an was unauthorized an unauthorized alien, and alien, the and the history of previous violations of of the employer. The Department of Homeland Security (DHS) published a final a final rule rule on August on August 15, 2007 to amend the the regulations relating relating to the to unlawful the unlawful hiring or hiring continued or continued employment of unauthorized aliens. 72 FR This new rule was set set to to become effective on September 14, However, due to the grant of a Temporary Restraining Order by a a federal court judge judge in California, in the effective the effective date date of the of rule the has rule been has been delayed until after a a Hearing to to Show Show Cause has has been been held. held. At the At the Hearing Hearing to Show to Show Cause on October 1, 1, 2007, the the Court will will determine determine whether whether or not or a preliminary not a preliminary injunction should be issued to enjoin the Department of Homeland Security from giving effect to this new rule. According to to this this rule, rule, "constructive constructive knowledge" knowledge of the of employment the employment of an of an unauthorized alien is is imputed to to an an employer when when it fails it fails to take to take reasonable steps steps to to address the receipt of a no-match "no-match" letter from the SSA. Employers who ignore the the nomatch letters or who fail to to follow its its instructions in in a timely a timely manner may may be subject be subject to to allegations that an employer had had constructive knowledge that that it was it employing was employing an an alien not authorized to work in in the United States in violation of of section 274A(a)(2) of of the Immigration and Nationality Act Act codified at at 8 U.S.C (a)(2). Thus, Thus, if the if the employer follows the instructions on on the the SSA "no-match" no-match letter, letter, it allegedly it is no is longer no longer at risk at risk no- that the no-match letter would be be used in in any any part part of of an an allegation by by the the Department of Homeland Security that the employer had constructive knowledge that the the employee was not authorized to work. 3. Ryan, Swanson & Cleveland s Cleveland's Recommendation First, we advise that you follow the the instructions on the on SSA the SSA "no-match" no-match letter letter (the steps outlined in Section I). Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 3

4 If the Social Security Number is is incorrect on on the the Form Form W-2, W-2, or if or the if the employee does not provide a correct a correct Social Social Security Security Number Number within within a reasonable a reasonable time, thetime, the employer should complete a new a new Form Form 1-9 I-9 with an an identity document showing showing authorization to to work in in the the U.S. U.S. different from from the Social the Social Security Security Card Card in question. in question. The employer should retain the old Form 1-9 I-9 as well as the new one as evidence that the employer has complied with the the verification requirements both both at the at the time time of hire of hire and and at the time when the social security number was questioned. If the employer has has policies it generally it generally applies applies to criminal to criminal conduct conduct in the in the workplace, then it it should consistently apply those policies. As As the the employer, you you will will not know if if the employee has committed a a criminal act act unless the the employee confesses that he/she obtained a Social a Social Security card card from from anyone anyone other other than the than SSA the and SSA and willfully used it it to to gain employment. The employee may confess that he/she does not not have work work authorization and and he/she may ask what can can be be done done to keep to keep his/her his/her job. He/she job. He/she is often the is often best the best employee, who never caused any problems, always showed up up to to work work on time, on time, and and never sought a raise. You want to help. Our recommendation is is to to terminate the the person person as an as employee an employee as soon as as soon as possible. After the the employee confesses, the employer now now has has actual knowledge that that the employee is not authorized to work. Not Not acting on on this this knowledge could could result result in ain a civil fine of $250 to $2,000 per individual as well as criminal penalties, although they are rarely imposed. The employer should call call our our office office for for names names of local of local qualified qualified immigration immigration attorneys to whom it it may refer the the employees for for legal assistance. The The employee may may have legal alternatives unknown to to him/her. It may It may be possible be possible for the for employer the employer to to assist the employee to secure lawful permanent residency in the United States, but only as a future employee. We can review this alternative with the employer when you you have such a situation. 4. For Future Employees Employers can register for E-Verify, an online service which allows employers to to enter names and Social Security Numbers to to verify employment eligibility. For more For more information on E-Verify and to to register, please visit B. New Department of of Labor Regulations Regarding Labor Certifications On July 16, 2007, new regulations from the Department of Labor regarding Labor Certifications went into effect. The The new new regulations found found at 71 at 71 FR FR significantly impacts the adjudication of Form of Form I-140, 1-140, Petition for for an an Immigrant Worker, Worker, the the Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 4

5 employer s employer's petition for for a a permanent residency application on behalf on behalf of an of employee. an employee. Three consequences of the new regulations are (1) a labor certification will will expire expire days from the date of of certification unless unless it is it filed is in filed support in support of a Petition of a Petition for an for an Immigrant Worker (1-140), (I-140), (2) employers will will no no longer longer be able be able to substitute to substitute an an employee for a specific labor certification certified for for another employee, and and (3) (3) where an employer has hired an an attorney to to complete the the labor labor certification application, the the employer is obligated to pay for the costs and fees associated with the labor certification application. 1. Labor Certifications Only Valid for 180 Days In the process of obtaining permanent residency on on behalf of an of an employee, an an employer must first obtain a certification by by the Department of of Labor (DOL) stating that that there are not sufficient workers who who are able, are able, willing, willing, qualified, qualified, and available and available to to perform the position offered, and and the the employment of such of such an an alien alien will will not adversely not adversely affect the wages and working conditions of workers of workers in the in United the United States similarly States similarly employed. Prior to July to July 16, 16, 2007, 2007, these these labor labor certifications were were valid indefinitely. valid indefinitely. However, this new rule states that a a labor certification will will be be valid valid for 180 for 180 days days from from the date that it it is is certified. This This means means that that an employer an employer must must file a file Petition a Petition for an for an Immigrant Worker (Form I-140) 1-140) before the end end of the of the 180-day period. Labor Labor certification applications certified prior to to July July 16, 16, 2007 will will expire on on January 12, 12, 2008, 180 days from the effective date of this new rule. 2. No Substitutions of Beneficiaries on Labor Certifications Prior to July 16, 2007, employers were permitted to substitute another employee for a labor certification as as long long as the as the new new employee employee met the met requirements the requirements for thefor the position as as stated in the in labor the labor certification. certification. DOL is is no no longer longer allowing allowing such such substitutions. 3. Payment of Costs and Fees Related to to Labor Certification Applications The new regulations prohibit the the sale, barter, or or purchase of of labor certifications. Until July 16, 2007, employers were allowed to to have have agreements with with employees employees seeking permanent residency which allowed the the employers employers to receive to receive payment payment or or reimbursement from their employees for the fees and costs related to labor certification applications under certain conditions. However, as of as July of July 16, 2007, 16, 2007, employers, who who have engaged the services of of a a lawyer or law firm to file a labor certification application, are no longer allowed to to receive payment from from an employee an employee for the for costs the costs and fees and fees associated with a labor certification application on on behalf of of that employee nor nor are are they allowed to deduct costs from the employee's employee s salary or or bonus for for costs and and fees related to the labor certification application. However, an an employee may pay pay the the costs and fees Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 5

6 related to a a labor certification application including including attorneys' attorneys fees only fees when only the when the attorney represents the employee, but but does does not not represent the employer. the employer. Payment Payment includes monetary payments; wage wage concessions including deductions from from wages, wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor. If an employer is is found to to have sought or or received payment from from any any source in in connection with a labor a labor certification application, application, the application the application may be denied, may be denied, revoked, suspended, or any combination thereof. In addition, In addition, the employer the employer may be may be barred from filing labor certifications for for a reasonable a period not not to to exceed three years. In case of such a debarment, the employer would receive a Notice of Debarment within six years after the date of filing a a labor certification application, or or if a if pattern a pattern must must be be established, within six six years after the the date date of the of the filing filing of the of last the labor last labor certification certification application which constitutes a part of a pattern or practice. Employers with questions about these new regulations and their impact on on their business should contact our office. C. Permanent Residency Application Debacle at at USCIS On July 2, 2, 2007 USCIS attempted to to turn turn away away hundreds hundreds of thousands of thousands of of employment-based permanent residency applications. Fortunately, by by mid-july, USCIS decided to accept employment-based permanent residency applications until until August August 17, How could this happen? Each year, the Immigration and and Nationality Act Act allots allots about about 140, ,000 visas visas for for employment-based immigrants and and their their dependents. The fiscal The year fiscal runs year fromruns from October 1St st of every year to to September 30th of the next year. year. Each Each month, month, the the Department of State issues a Visa Bulletin stating the the availability of immigrant of immigrant visas visas based on the number of available visas and USCIS USCIS' ability to adjudicate applications for permanent residency. In In Fiscal Year 2006 (October 1, 1, September 30, 30, 2006), the U.S. Citizenship & Immigration Services (USCIS) failed to adjudicate the the maximum number of 140,000 applications allotted for permanent residency and therefore did did not not use up all of of the the visa visa numbers available to them to them for that for fiscal that fiscal year (approximately year (approximately 10,000 visas were unused). Since October 2005, there have been backlogs in in the processing of of immigrant visa applications, some up to over seven years. In In June 2007, with the hope of of using up up all all visa numbers available for for FY FY 2007, 2007, the the Department of State of State issued issued the July the Visa July Visa Bulletin stating that visa numbers were available as as of of July 2, 2, 2007 for all all employmentbased preference categories except for the "Other Other Workers" Workers category, for for which which visas visas Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 6

7 were not available. The result was a flurry by by employees and employers who had had been waiting to to for visa numbers to to become available, some since In In order to to prepare applications for for permanent residency and gather and gather all necessary all the necessary documents, documents, employees, their family members, and and attorneys attorneys spent spent countless countless hours hours compiling compiling applications to be filed in the month of of July according to to the Visa Bulletin. On On Monday, July 2, 2007, the first day day on which on which USCIS USCIS could could receive receive such applications such applications for for permanent residency, the Department of of State issued a a statement declaring that that all all of of the visa numbers had had been used used up, up, that that there there were were no longer no longer any visa any numbers visa numbers available for any employment-based preference category, and and that that as as of of July July 2, 2007, 2, 2007, USCIS would not accept any employment-based applications for permanent residency. Information was posted that that employment-based permanent permanent residency residency applications applications received on or after July 2, 2007 would be returned to the sender. Right away there were threats of class action lawsuits against the Department of of Homeland Security for informing the public of of the the availability of of visa visa numbers and and then then yanking them away at at the the last last minute. minute. Because Because the applicant the applicant must be must physically be physically present in the the United States States on on the the date date on which on which the application the application for permanent for permanent residency is filed with USCIS, some individuals had spent excessive amounts of of money and traveled great distances to be physically present in the United States in July. Some employers had gone to to great lengths to to file file hundreds of applications of for permanent for permanent residency on behalf of of their their employees. All of All this of productive this productive motion came motion to acame to a screeching halt on July 2, 2, Some employers then then decided to continue to continue to fileto file applications in the hope of of qualifying as as a a member of of rumored class class action lawsuits to to be filed. Others stopped working on their on their permanent residency residency applications, having having decided that the window of of opportunity to file to applications file had closed. had closed. Fortunately, Fortunately, the threat of multiple lawsuits coupled with with communications with with USCIS USCIS resulted resulted in ain a reopening of that window. On July 17, 2007, the Department of of State issued the the Visa Visa Bulletin for for August August This Visa Bulletin announced that the July 2, 2007 notice was withdrawn and that the original July 2007 Visa Visa Bulletin was was effective. effective. An additional An additional notice stated notice that stated that USCIS would accept permanent residency applications until August 17, 17, Again, Again, employers, employees, and attorneys scrambled to compile to compile applications to submit. to submit. Although USCIS has accepted these applications, due due to to the the volume volume of applications of they received, it it is is unclear how how long long it will it will take take them them to process to process these these applications. applications. However, it it will will be years be years before before visa visa numbers numbers will be will available be available for many for of the many of the applicants. 2. What does this mean? This incident as well as as the the backlog of of permanent residency applications is anis an indication of of the need for for comprehensive immigration reform. reform. Although Although there there was awas a Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 7

8 strong effort this year year with with bills bills being being reviewed reviewed in Congress, in Congress, they were they ultimately were ultimately rejected. However, employers should continue to to let let their Representatives and Senators know how impacted their businesses are by by the the limited number of nonimmigrant of and and immigrant visas available. U.S. U.S. employers employers have have a need a for need skilled for workers skilled and workers and employees in specialty occupations, but but they they are restricted are restricted from hiring from qualified hiring qualified individuals because of of the government's government s limitations on on the the number number of nonimmigrant of and immigrant visas. The failure of of comprehensive immigration reform reform has divided has divided Congress Congress and and caused the President to to crack down down on labor on labor by increasing by increasing raids and raids building and building an an enormous U.S./Mexican border fence to to alleviate the the situation. The The consequences for for employers could be losing a complete workforce in in one day, bad bad publicity after after a raid, a raid, criminal and civil penalties related to to employing aliens not not authorized to work, to work, any or any combination thereof. 3. What is the solution? We urge interested employers to lobby Congress to increase the number of visas available so that businesses in the U.S. can grow with a capable a workforce. Let Let your your voice be heard and write to your Senators and Representatives in Congress. D. Delays in Obtaining Passports As of January 23, 23, 2007, citizens of the the United States, Canada, Mexico, Mexico, and and Bermuda were required to to present a passport to to enter the the United States when arriving by air from any part of the Western Hemisphere. In fiscal year 2006 from October 2005 to September 2006, the Department of State issued 12.1 million passports. To date in fiscal year 2007, the Department of State issued over 16 million passports. Because of the volume of passport applications received, the Department of of State recently issued issued an amendment an amendment to the to regulation the regulation regarding regarding expedited passport processing. 72 FR Until August 16, 2007, expedited processing required that passports be be processed within within three three business business days. days. The The regulations have been been amended to state to state that expedited that expedited processing processing shall mean shall mean completing processing within within the number the number of business of business days published days published on the on the Department of State's State s website: The The number of days of days starts starts when the application reaches a a Passport Agency or or if the if the passport is already is already with with a a Passport Agency, then the the counting of days of days starts starts when when the request the request for expedited for expedited processing is approved. As of of September 7, 2007, expedited processing is taking about 3 weeks. Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 8

9 Due this delay in in passport processing, the the Department of State of State has has permitted U.S. citizens traveling by by air air within within the Western the Western Hemisphere to travel to travel with official with official proof of passport application receipts if they had not yet received actual passports. This accommodation is scheduled to end at midnight on on September 30, As of of October 1, 2007, all U.S. citizens traveling by air to Canada, Mexico, the Caribbean, and Bermuda MUST present a passport to enter or depart the the United States. There is is one one exception for U.S. citizens who departed the the country under under the the travel travel accommodation prior prior to to October 1, 2007 with Department of State official proof of of passport application receipts and government-issued identification. These citizens will will be be readmitted to the to the United United States with these same documents if they are returning after September 30, In its last announcement regarding passport production on on September 7, 2007, 2007, the Department of of State states that travelers who who have have applied applied for passports for passports should should allow six to eight weeks for standard passport processing and and weeks for for expedited processing. Although this this a is reduction a in processing processing times times from from May 2007, May when 2007, when standard processing was taking weeks, expedited processing could still take up to three weeks. For citizens of of the the United United States, States, Canada, Canada, Mexico, Mexico, and Bermuda and Bermuda traveling traveling through land and and sea sea ports ports of entry, of entry, the Department the Department of Homeland of Homeland Security and Security and Department of State expect that a passport or other acceptable identification containing biometric information will be be required in in the the summer of of Thus, if you or any of your employees are planning to to travel outside the U.S. and need to obtain U.S. passports, please apply early to allow ample time for processing. Ryan, Swanson & Cleveland MAJOR RECENT DEVELOPMENTS IN IMMIGRATION - 9