Vol. XXXIX A MONTHLY UPDATE ON IMMIGRATION LAW AND August 2009In this Issue: Immigration Law News & Policy Updates
CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATESFederal District Court Upholds Mandatory E-Verify Rule for Federal Contractors Effective September 8, 2009On August 25, 2009, the United States District Court for the District of Maryland, Southern Division, granted Defendants' cross motion for summary judgment in Chamber of Commerce of the USA v. Napolitano, a lawsuit challenging the amendments to the Federal Acquisition Regulations ("FAR") that mandate companies with federal government contracts to enroll in the E-Verify system. The FAR amendments were originally promulgated in November of 2008, and the Obama Administration has indicated it would like the amendments to take effect September 8, 2009. The District Court was called upon to rule on motions for summary judgment filed by both sides - essentially, requests by both parties to end the lawsuit, as a matter of law, since the facts are not in dispute. Boiled down, the Chamber of Commerce's position was that because Congress had expressly made the E-Verify program voluntary, the FAR amendments (which now seek to make E-Verify mandatory for federal contractors and subcontractors) violate Congress' original, express intent and, therefore, should be ruled invalid. The Government's argument, by contrast, was that the FAR amendments do not make E-Verify mandatory because a company/business has a choice whether or not to seek federal contracts, and as such, the company/business has a choice of whether to participate in E-Verify. The District Court agreed with the Government's position, dismissing the Chambers' lawsuit. As a result (unless the Chambers appeal the District Court's decision), as of September 8, the FAR amendments will require that participating contractors (and flow-down subcontractors) initiate E-Verify for active and new employees. The impact of the District Court's decision is immensely significant. During these difficult economic times, many businesses are looking to the federal government (and those who do business with the federal government) to provide a source of income. However, to date, only a small portion of the American Recovery and Reinvestment Act of 2009 ("ARRA") stimulus funds have been obligated (for specific details, you can visit: www.recovery.gov). As such, any funds obligated by contract after September 8 under the ARRA will include the E-Verify requirement. More importantly, the regulation is not limited to ARRA funds, but to all appropriations contracts with the federal government beginning September 8 --with some very limited exceptions. Accordingly, American companies which contract with the federal government for goods or services (including construction contracts) will likely see existing contracts modified to require E-Verify review of (i) all persons hired during the contract term and (ii) all persons assigned by the contractor to perform work on the federal contract. Please don't assume that E-Verify only relates to foreign nationals since it is administered by USCIS. That is simply not the case -- the E-Verify requirement (potentially) touches upon every employee in the country and is not limited to foreign nationals working in the United States. Practically speaking, what does the decision mean?Those clients who are already enrolled in E-Verify for more than 90 days are required to continue to initiate verification of newly hired employees within three business days of their start date, but have 90 days from the effective award date to begin using E-Verify for each employee already on their staff who is performing work upon an existing federal contract. (Any transition to using the system as a federal contractor does not allow you to stop using E-Verify for its new hires on the standard three-day schedule). For those clients not enrolled, the contractor and any covered subcontractor will be required to enroll in E-Verify within 30 calendar days of the contract or subcontract award date. New enrollees will be provided an additional 90 days--for a sum total of 120 days--to enroll and initiate verification queries for employees already on their staffs assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees. Why should all employers care?USCIS is data mining E-Verify, resulting in the identification of compliance failures, such as the failure of an employer to E-verify all employees or failure to terminate employees after a final non-confirmation of employment eligibility. Such monitoring will result in referrals to Immigration and Customs Enforcement ("ICE") for follow-up inspections. Accordingly, non-compliant employers (but, more commonly uneducated/ unrepresented businesses) may increase the prospect of an ICE inspection. Bottom line: increased mandatory E-Verify requirements will lead to increased scrutiny. Ironically, those clients agreeing to initiate the E-Verify program are increasing, not decreasing their exposure. Should you have any questions regarding your business' present obligations with respect to E-Verify, please do not hesitate to contact us. The Obama Administration Warns Of "Another Wave" Of I-9 Audits "In The Near Future"Secretary Napolitano recently delivered a speech detailing the Obama Administration's plans to announce "another wave" of I-9 audits "in the near future." Such audits, specifically targeting businesses suspected of hiring illegal immigrants, are a dramatic change from the highly publicized worksite enforcement sweeps of the prior administration. In June 2009, the Immigration and Customs Enforcement Division of DHS ("ICE") implemented its first "wave" of such audits. Specifically, ICE notified several hundred companies of its intent to audit their I-9 forms. Employers selected for such audits received a Notice of Inspection ("NOI") with instructions to present all original I-9 forms and supporting documents. ICE regulations require the provision of three days notice prior to conducting such an audit. According to a July 1 press release, ICE issued administrative NOI's to 652 businesses nationwide (compared to 503 notices issued for the entire year of 2008). The press release also provided that ICE had identified the 652 employers as those resulting from "leads and information obtained through other investigative means." Apparently, "another wave" of such audits will be coming in the "near future." In light of these dramatically heightened investigations, it is important that you assess the effectiveness of your compliance programs and take the appropriate steps to protect your business from potential fines and/or even criminal investigations. To inquire about the protections available to your business and its employees, or about the potential ramifications of these changes to you or your organization, please do not hesitate to contact us. CBP Announces Expansion of the Global Entry Program to Thirteen Additional AirportsThe Department of Homeland Security ("DHS") recently announced it will expand its Global Entry program - which provides expedited re-entry into the U.S. for U.S. citizens and U.S. permanent residents - to another 13 airports effective August 24. That will make the service available at a total of 20 U.S. airports. Initiated in June 2008, the program allows registered members to bypass the U.S. Customs & Border Protection ("CBP") inspection stations upon returning to the U.S.; instead, they must use self-service kiosks that confirm their identity and ask them customs declaration questions. To join, you must undergo an interview at an enrollment center, provide biometric data for I.D. purposes, and pay a one-time $100 application/processing fee. As of August 24, Global Entry kiosks and enrollment centers were made available at the following airports: Boston, Dallas/Ft. Worth, Detroit, Ft. Lauderdale, Honolulu, Las Vegas, Newark Liberty, Orlando, Sanford (Fla.), Philadelphia, San Juan, San Francisco and Seattle. The service was already available at Atlanta, Chicago O'Hare, Houston Bush Intercontinental, Los Angeles, New York JFK, Miami and Washington Dulles. According to DHS, Global Entry has reduced average wait times by 70 percent, with more than 75 percent of Global Entry travelers being processed in under five minutes. Approximately 16,000 individuals are currently enrolled. For further information, please go to www.globalentry.gov. Expiration Date of Form I-9 Extended to Aug. 31, 2012; Form I-9 Amended With New Revision DateU.S. Citizenship and Immigration Services ("USCIS") announced on August 27 that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification) to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of Aug. 7, 2009. Employers may use the Form I-9 with the revision date of either August 7, 2009 or the previous form bearing a revision date of February 2, 2009. (The revision dates are located on the bottom right-hand portion of the form). USCIS Announces Delays in Production of Permanent Resident CardsApplicants seeking a permanent resident card may experience an eight-week delay in their delivery as USCIS is in the process of upgrading its card production equipment. In the interim, USCIS will issue temporary evidence of permanent residence in the form of an I-551 stamp to applicants who are approved at the time of their interview and who bring with them their passport or some other government approved photo identification. Update: August 2009 Employment-Based Visa NumbersThe August 2009 Visa Bulletin confirms that Employment Based Second Preference (EB-2) visa numbers continue to be current for most countries. Second Preference Employment visa numbers for India and China have moved ahead by nearly almost 4 years from last month, from January 1, 2000 to October 1, 2003. As such, EB-2 cases with a priority date of on or before October 1, 2003 are expected to be adjudicated. The EB-2 immigrant visa category is designated for "members of the professions holding advanced degrees" and "aliens of exceptional ability." Employment Based First Preference visa numbers for all countries continue to be current, while visa numbers for Employment Based Third Preference (Skilled Workers, Professionals Holding Baccalaureate Degrees and Other Workers) remain unavailable since their retrogression. Portions of this Newsletter have been The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
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