Additional Scrutiny at Airports and Other US Ports of Entry
In addition to scrutinizing H-1B visa holders, Customs and Border Protection (CBP) at Newark Airport has indicated that it will be detaining all returning legal permanent residents (LPRs) who have criminal convictions for up to 24 hours while they obtain a copy of their conviction record. If you have a criminal conviction, we strongly urge you to consult with us prior to leaving the United States and to bring copies of your criminal conviction records and possibly a legal opinion letter regarding you admissibility.
Also, CBP at Newark will be subjecting Conditional Permanent Residents with pending petitions to remove conditions to higher scrutiny as well. If you are a conditional permanent resident, you must provide the filing receipt or a valid LPR stamp or you will be send to secondary inspection for an interview to determine the validity of the I-751 petition.
Again, it is likely that this heightened scrutiny will arrive at other major US ports of entry and airports. Please be prepared and do not hesitate to call us prior to making arrangements for foreign travel.
Talented Athletes, Artists Or Entertainers
Do you know any talented athletes, artists, or entertainers? Julie C. Ferguson has successfully represented talented individuals from NFL football players, ATP tour professionals and Indy race car drivers to Salsa singers, Latin news anchors and TV show hosts. If you are a talented foreign national or an agent of one who would like to discuss working in the United States, please call our offices to schedule a consultation.
Beware of Enhanced Employer Enforcement
One of the hottest topics at the conference I attended in February was enhanced employer enforcement under the Obama administration. US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (ICE), and the Department of Labor are all stepping up their efforts to enforce employer compliance with immigration and labor laws.
USCIS is using a division called the Office of Fraud Detection and National Security (FDNS) to conduct visits to the worksites of employers that sponsor foreign workers. A number of our clients have already experienced such visits. FDNS appears to be focusing its visits on employers who employ foreign nationals on H-1B petitions. It sends out private contractors to conduct the visits on behalf of USCIS. The visits are random and unannounced. The contractors verify information provided by the employer in the H-1B petition including not only employer information but also whether the employees are working in compliance with the information contained in the petition and the employer’s attestations regarding hours, job duties, educational background and rate of pay.
ICE also has increased federal criminal enforcement against employers who are required to verify the identity and work authorization of all individuals hired after November 6, 1986. ICE has been aggressively pursuing charges against employers for knowingly making false statements on Form I-9. It uses circumstantial evidence to prove "willful blindness" on the part of the employer to the employee’s unlawful status. ICE has also charged employers with "harboring aliens" which is a felony offense prohibiting anyone from "aiding or abetting" an unlawful alien to remain in the United States on the grounds that employing the person is effectively "aiding" them to remain in the United States. ICE has charged managers at a number of companies under that provision, and employers who provide transportation. It also has charged employers who have relied on false information with criminal misuse of a Social Security Number; making false statements and identity theft.
The Department of Labor (DOL) is getting in on the action as well. DOL has been actively auditing H-1B employers to ensure that they are complying with all H-1B requirements, including payment of required wages, and public examinations of files. H-1B employers must be attentive to their wage and hour obligations, and comply with all wage, benefit and notice requirements.
All business owners, executives and HR managers should know what to expect from a USCIS site visit or ICE enforcement action. Please contact our office for a copy of our white paper on increased employer and worksite enforcement.
Enhanced Scrutiny of H-1B Visa Holders by Customs and Border Protection
If you are a foreign national traveling to the US and arriving from overseas you must prepare for a higher level of scrutiny than you may have previously experienced. We have heard reports that Customs and Border Protection (CBP) officials at Newark Airport have been questioning certain H-1B holders and at times preventing them from entering the country. If you are traveling on an H-1B visa you should be prepared for questions about who you are working for, the source, amount and timing of your payroll, and your job duties and location. You must also carry your original approval notice, a copy of your petition, recent paycheck stubs, and updated employment letter and any other evidence of on-going employment. Also, employers must designate a company representative and advise them that CBP may call to ask them questions related to the petition. It is likely that CBP will roll out this new scrutiny at other airports and US ports of entry as well, so please be prepared no matter where you enter. If you have any questions about how to document your status please contact us for assistance.
H1B Filing Date Is Approaching Fast
On April 1, 2010, employers will again be able to submit new H-1B petitions with the United States Citizenship and Immigration Service (USCIS) for Fiscal Year 2011. Beneficiaries of the new H1B petitions will be able to begin employment on October 1, 2010.
Employers who are recruiting employees abroad or who have hired F-1 students who are on "Optional Practical Training," and therefore anticipate a need to file an H-1B petition, should be prepared to have that petition delivered to USCIS on April 1, 2010. This means getting started right away.
Employers should also examine their workforce to determine if any current employees working in Optional Practical Training or some other expiring status, would benefit from an H-1B petition.
Please remember that in recent years USCIS has received in excess of the 65,000 available petitions on the April 1 filing date, requiring USCIS to employ a lottery system to determine which petitions would be adjudicated. While this did not happen last year, we anticipate that the demand for H-1B visa will increase this year. For this reason we encourage you to identify any employees for whom you wish to file early and contact us immediately so that we can file as close to April 1, 2010 as possible.
New and Noteworthy
On February 19, 2010 Julie Ferguson was a featured speaker at the 31st Annual Immigration Law Update sponsored by the South Florida Chapter of the American Immigration Lawyers Association. She participated on a panel with Judge Lourdes Martinez-Esquivel and two other immigration attorneys who discussed cutting edge issues that arise in representing foreign nationals in removal proceedings.