12/17 Free Webcast: Workplace Enforcement: How to Ensure
I-9 and H-1B Compliance in the Employment of Foreign Nationals
The U.S. government is intensifying efforts to enforce immigration compliance on a large scale. The potential risks associated with non-compliance make this topic a top priority for employers nationwide.
1,000 companies nationwide were issued Notices of Inspection (NOIs) from the Immigration and Customs Enforcement Agency (ICE) in late November that their I-9 records will be audited within three days - more than doubling the total number of inspections in 2008. Additionally, the Office of Fraud Detection and National Security (FDNS) is also cracking down on H-1B compliance with plans to conduct 25,000 on-site inspections - nearly a five-fold increase from last year.
I-9 and H-1B non-compliance can result in both civil and criminal charges potentially translating to hefty fines and even imprisonment for employees and employers. The threat of government audits and raids makes the need to have compliance best practices in place urgent. Attend VISANOW's webcast to learn more about the potential risks of I-9 and H-1B Labor Condition Application and Public Access File non-compliance, how to respond to a government inspection, and get practical advice on how to avoid those risks and achieve compliance:
Workplace Enforcement: How to Ensure I-9 and H-1B Compliance in the Employment of Foreign Nationals Thursday, December 17 2:00 p.m. ET/ 1:00 p.m. CT
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U.S. Immigration News
The Long-Term Reality of E-Verify
Early September, E-Verify, a web-based employment verification system operated by the Department of Homeland Security (DHS) and the Social Security Administration (SSA), became a requirement for federal contractors and subcontractors to verify the employment eligibility of new hires and any employees working on government contracts. Further, in late October, funding for E-Verify was extended for an additional three-year term, and has been even been touted as a replacement for the former SSA No-Match Letter system. Now, DHS has even launched a campaign to promote the usage of E-Verify to employers (in most states voluntary). It is clear that the government is committed to E-Verify as long-term, primary means of ensuring valid employment authorization.
Whether employers have to use E-Verify depends on state legislation and other factors. Use of E-Verify, even if voluntary, can have implications employers should carefully assess before making a decision and we encourage you to check with your immigration services provider.
Mandated E-Verify use only affect contractors awarded new contracts on or after the rule’s effective date of September 8, 2009 that include the Federal Acquisition Regulation (FAR) clause. U.S. federal contractor employers who are not currently enrolled in E-Verify, or who do not use E-Verify, should look to their executed federal contracts for guidance. Affected employers need to enroll in the E-Verify program within 30 days of the date of the awarded contract, and are then obligated to verify all new hires made within 90 days of enrollment and verify any existing employees that are assigned to work on the federal contract. Employers already enrolled in E-Verify who are subject to the federal contractors rule do not need to re-enroll and only need to update their existing accounts to show their status as federal contractors, and verify individual employees as described above. When enrolling in E-Verify, be certain to open accounts properly, indicating federal contractor status at the time they establish their accounts. Also, at the time of enrollment, employers are required to sign a Memorandum of Understanding, or “MOU”. The MOU creates specific obligations for the U.S. employer; thus, employers should be very careful to closely review the terms of the MOU before signing to be sure they are able to undertake all of the responsibilities that enrollment in E-Verify creates.
Further, DHS is even trying to promote E-Verify to employers and has launched a campaign to promote the usage of E-Verify to employers, by highlighting current users as examples to follow in doing the right thing – verifying their workforce. However, it is important to note that E-Verify is currently voluntary for employers. There are implications to using E-Verify and even legislation in some states that make it illegal to participate. Thus, it’s important to confer with your immigration services provider before undertaking the decision to participate in E-Verify.
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New Naturalization Test Now in Effect
Naturalization is the last step to obtaining U.S. Citizenship for qualified legal permanent residents who do not qualify for citizenship based on a familial relationship. Previously, applicants who filed an N-400, Application for Naturalization prior to October 1, 2008 had the choice of taking the old test or the new naturalization civics exam, but now the new test is fully implemented as of October 1, 2009. With hopes that the new test will strengthen integration efforts, the test emphasizes fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship.
If you have questions on the new naturalization civics exam, please contact your immigration services provider.
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December 2009 Visa Bulletin
Priority dates in the December Visa Bulletin largely remained the same, confirming the U.S. Department of State’s (DOS) prior announcement that visa demand already exceeds projections made at the beginning of the fiscal year.
T he DOS had announced in the November Visa Bulletin that demand for immigrant visa numbers by the U.S. Citizenship and Immigration Services (CIS) turned out to be greater than originally predicted at the beginning of the fiscal year. This is reflected in the December Visa Bulletin, in which most dates remain unchanged, except for the following:
- The priority date for Indian nationals in the EB third category (skilled workers, professionals, and other workers) moved to May 1, 2001. This is the third month in a row this category has seen forward movement.
- The priority date for Indian nationals in the EB third category (other workers) also moved to May 1, 2001. However, this is overall a net movement backwards from the October Visa Bulletin, where the priority date was June 1, 2001.
- New legislation passed in late October restored Immigrant visa numbers for the EB fourth category for non-minister religious workers and the EB fifth category for investors participating in the pilot program which provides for immigration if the intending immigrant’s investment creates ten new jobs.
The DOS offered no predictions as to the progression of priority dates for the other categories. It remains to be seen whether any significant progress can be expected for the rest of the fiscal year.
Employment-Based Visa Bulletin for December 2009
| Employment-Based |
All Other Countries |
China (mainland born) |
India |
Mexico |
Philippines |
| 1st |
C |
C |
C |
C |
C |
| 2nd |
C |
C |
04/01/2005 |
01/22/2005 |
C |
| 3rd |
06/01/2002 |
06/01/2002 |
05/01/2001 |
06/01/2002 |
06/01/2002 |
| Other Workers |
06/01/2001 |
06/01/2001 |
05/01/2001 |
06/01/2001 |
06/01/2001 |
| 4th |
C |
C |
C |
C |
C |
| Certain Religious Workers |
U |
U |
U |
U |
U |
| 5th |
C |
C |
C |
C |
C |
| Targeted Employment Areas/Regional Centers |
C |
C |
C |
C |
C |
| 5th Pilot Programs |
C |
C |
C |
C |
C |
Legend
- C = current as there is no waiting period necessary to file the I-485
- U = unavailable as visa supply has been exhausted for the remainder of fiscal year, or legislation creating the category has expired
- Date indicated = cut-off date that indicates a backlog; if the priority date (date the labor certification or I-140 was filed, depending on the type of case) is BEFORE date listed, the I-485 can be filed
Employment-based Preferences
- First: Priority Workers
- Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability
- Third: Skilled Workers, Professionals, and Other Workers
- Fourth: Certain Special Immigrants
- Fifth: Employment Creation
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International Immigration News
Proposed Changes to Increase Scrutiny on Canada’s Temporary Foreign Worker Program
The proposed changes to Canada’s Temporary Foreign Worker Program will be part of the government’s effort to prevent the abuse of foreign workers and to ensure the Temporary Foreign Worker Program as a whole is not being abused by allowing long-term employment to foreign workers as the temporary worker program is meant to address the short term (four year maximum) occupational shortages in Canada.
While an implementation date has not been given, it is expected that the changes will come into effect within the next two months. The increased scrutiny will translate to increased processing time for employers. Work with your immigration provider to ensure sufficient processing time and compliance of the Temporary Worker Program.
The changes include a stern review of the job offer given to the foreign worker. Additionally immigration officials will review the employer’s compliance history in relation to labor laws to assess if there have been any previous violations. A two year prohibition from hiring foreign workers will be implemented if the employer is found to have working conditions, wages, or jobs that are different that initially promised. The government will also measure the time the foreign worker stays in Canada before returning home. After a Temporary Worker spends a cumulative four years in Canada, they would not be able to work in Canada for six years thereafter. Consequently, employers in violation with these program revisions will named publicly as violators on the Canada Citizenship and Immigration website.
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UAE Federal Residency Law Rule to be Strictly Enforced
The United Arab Emirates (UAE) has recently announced the strict enforcement of the Federal Residency Law, which cancels the residency permit of any foreigner that leaves or remains outside of the UAE for more than six months. In an effort to monitor the movement of expatriates in and out of the UAE, the strict enforcement of this rule is effective immediately. Previously, expats who had been out of the country for six months could just fill out a form at the airport to re-enter, but now expats will be denied entry because of their invalid residence permit.
Expats that are not aware of this change will be denied entry to the UAE for not having a valid residence permit, as residence permit will need to be secured prior to arrival in the UAE. As increased border scrutiny is a recurring theme in global immigration, we recommend that employers prepare and plan ahead to ensure compliance if an employee is going to be out of the UAE for six months.
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