Employer Alert on Site Visits

Site visits to employers sponsoring H-1B petitions have been increasing recently as USCIS continues to implement changes in response to its H-1B Benefit Fraud Analysis report from September 2008.  As site visits become more common, employers need to become familiar with what to expect and the topics and questions that may be raised by the inspector.

 

The California Service Center (CSC) advised employers that inspections typically check the work location listed on the I-129 petition.  (For employees who work offsite or at multiple locations, an itinerary should be provided in the petition.)  In  ddition to speaking to a company representative – typically the signatory of the  etition – and the beneficiary, the inspector may also ask to review documents related  to the petition and take photos of the worksite.

 

In practice, we have had inspectors:

  • Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS;

  • Verify the existence of a petitioning entity;

 

  • Take digital photographs;

 

  • Speak with organizational representatives to confirm the beneficiary’s work location, employment workspace, hours, salary and duties; and

 

  • Speak with employees to confirm job details contained in the I-129 petition.

 

Furthermore, we have had inspectors request general information about other H-1B petitions pending or in process with the employer.  These requests have been made in person, by phone, and by email.

 

Site inspectors will report the results of their site inspections to the Fraud Detection and National Security (FDNS).  An FDNS Officer will review the information and determine whether an official inquiry should be made.  If so, the FDNS will provide an Immigration Services Officer (ISO) with a Summary of Findings (SOF), which may decide to request additional evidence from the petitioner or initiate denial or revocation proceedings.  When indicators of fraud are identified, the FDNS Officer may refer the case to ICE for criminal investigation.

 

If your company is contacted about a site visit, contact your Graham Adair attorney for guidance.

New Combined EAD and AP Card

The U.S. Citizenship and Immigration Services (USCIS) just announced that it will start issuing a new combined employment authorization document (EAD) and advanced parole document (AP) to certain individuals who have a pending employment or family based I-485 application to adjust status. This new combined EAD/AP card will look similar to the current EAD card, but will contain language on the face of the card that states “Serves as I-512 Advanced Parole.” The new card will be issued to individuals who concurrently apply for their EAD and AP documents with their I-485 application. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other.

The new card will be issued for one to two years at the discretion of USCIS. This new card will allow individuals to carry only a single document for work and travel authorization while the I-485 applications are pending.

Employers will be able to treat this document as a List A document for purposes of I-9 verification.

If you have further questions about this document please contact Graham Adair.

UNITED STATES – ICE Will Serve More Than 500 Notices of Inspection

The American Immigration Lawyers Association (AILA) has reported that U.S. Immigration and Customs Enforcement (ICE) plans to serve more than 500 new Notices of Inspection to U.S. companies within the next few days. According to ICE, the planned audits were triggered by information received about companies that are believed to be engaging in the hiring of unauthorized workers and/or paying unfair wages.

If you receive a Notice of Inspection, please contact us right away at: info@grahamadair.com.

UNITED STATES – Arizona Passes New Immigration Enforcement Provision

On Friday April 23, 2010, Arizona Governor Jan Brewer signed SB 1070 into law.  This law is focused on immigration enforcement and appears to give broad authority to state and local law enforcement agencies to enforce federal immigration provisions.  The bill, among other things, requires law enforcement officers and other agents of the state to inquire about a person’s immigration status under certain circumstances. 

The passage and signing of the new law has pushed Arizona to the forefront of the national debate on immigration issues.  This is a controversial bill and has generated significant media coverage and spurred numerous debates, protests, and demonstrations.  The law will likely be the subject of multiple lawsuits addressing both questions of immigration law and various Constitutional issues.  This law will go into effect 90 days from the date it was signed by the governor.

We are carefully monitoring this situation and will be providing updates on specific actions and precautions that clients should consider taking in the coming weeks and months.

DHS Getting More Customer Service Oriented With E-Verify

The U.S. Department of Homeland Security (DHS) has announced an initiative to enhance customer service in three areas:

1. Telephone hotline;
2. Training videos; and
3. Streamlined adjudication of discrimination complaints for misuse of E-Verify.

Telephone Hotline

On April 5, 2010, a new hotline (888-897-7781) will open for general inquiries, issues and complaints. It will be an automated phone line that will eventually take the caller to a live representative in one of four areas:

1. General E-Verify information;
2. Completing Form I-9;
3. Contesting an E-Verify case; and
4. Filing a complaint regarding possible discrimination or misuse of E-Verify.

The hotline presents a nice first option for those seeking general information or redress for issues raised during the E-Verify process. However, with more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify, it remains to be seen whether the hotline will be properly staffed. If it is understaffed, long waits could dilute the utility of the hotline.

Training Videos

Training videos have been created by the DHS’s Office of Civil Rights and Civil Liberties and U.S. Citizenship and Immigration Services (USCIS). Each video is set up as re-enactments of real-world hiring scenarios in which the employees’ rights are considered to avoid potential discrimination or misuse of the E-Verify process. For now, there are two videos available. Each video is approximately 20 minutes long and is available for immediate viewing online at: www.dhs.gov/e-verify or
www.youtube.com/ushomelandsecurity. The videos are intended to help employers understand their responsibilities under E-Verify and to inform employees of their rights.

Streamlined Adjudication of Discrimination and Misuse Complaints

The Department of Justice’s Office of Special Counsel (OSC) has begun a two-way referral program with USCIS on claims of E-Verify misuse. When USCIS receives complains of potential discrimination, it will refer them to OSC. And when OSC learns of potential employer misuse of E-Verify that does not fall within its enforcement area, it will refer the complaint to USCIS. This streamlined process is intended to move complaints more quickly to a final determination and, if required, an investigation. OSC may initiate investigations of: (1) discrimination based on citizenship, immigration status, or national origin; (2) document abuse as part of the I-9 process; and (3) retaliation.

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