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Conflict Between California and Federal Law Regarding Work Site Immigration Inspections

Posted November 10, 2017Matthew Meltzer - Partner and Co-FounderArticles

California has enacted the Immigrant Worker Protection Act (AB 450) which restricts companies from allowing immigration inspectors into private spaces in the workplace without a court warrant or subpoena. The law will go into effect on January 1, 2018.

The law imposes civil penalties on employers ranging from $2,000 to $10,000 per violation. The law imposes the following restrictions on employers in California:

Reverifying I-9 employment eligibility

Employers are barred from reverifying the employment eligibility of current employees at a time or manner not required by federal law, even where the employee initiates reverification. Improper I-9 reverification will subject employers to civil fines made payable to the labor commission. This provision would complicate internal I-9 audits and request for compliance from employees when conducting such paperwork audits.

Government access to worksite and employee records

Unless required by federal law, AB 450 prohibits employers or their agents from granting immigration inspectors access to nonpublic areas of the worksite without first presenting a court warrant. While "immigration inspectors" is not defined by the statute it could reasonably be understood to include:

  • Immigration and Customs Enforcement (ICE) agents;
  • Fraud Detection and National Security (FDNS) officers;
  • Department of Labor (DOL) auditors;
  • Department of State agents; and
  • Other immigration enforcement agents.

Access to nonpublic areas is permissible for the purpose of verifying the warrant, and may only be done in a location where employees are not present. 

Similarly, employers are prohibited from granting immigration enforcement agents the ability to access, review or obtain confidential employee records without a subpoena or court warrant unless otherwise required by law. This includes:

  • Social Security numbers
  • Payroll information
  • Other personnel records

The only exception is for I-9 employment eligibility verification forms and other documents for which a Notice of Inspection is provided to the employer in advance. In those circumstances, the employer may grant access without a court warrant or subpoena, but must also notify its employees in advance, as outlined below. 

When employers submit most visa petitions on Form I-129 they consent to inspections by USCIS and FDNS officers. It is unclear whether this statute would bar California employers from complying with the terms of Form I-129. Refusing access to a governmental agent or officer would most likely result in a Notice of Intent to revoke on the instant petition and may cause future difficulties with other petitions submitted to USCIS.

Notice to employees before and after an immigration inspection

If the employer receives a Notice of Inspection (most commonly occurring with ICE) in advance of an enforcement effort, a court warrant or subpoena is not required, but the employer must notify its employees in the language normally used to communicate employment-related matters, as well as their labor union representative of the upcoming inspection within 72 hours of receiving the notice. The posting must include:

  • The name of the immigration agency conducting the inspection;
  • The date the employer revived the notice;
  • The nature of the inspection; and
  • A copy of the Notice of Inspection.

The employer must also provide potentially affected employees with a copy of the notice if reasonably requested. 

Following the inspection and after the inspection results are received, the employer has 72 hours to provide affected employees and their labor union representative with a copy of the results, as well as written notice of any obligations imposed on the employer or the affected employee as a result of the inspection. The written notice must contain:

  • A description of the deficiencies identified during the inspection;
  • The time period for correcting the deficiencies;
  • The time and date of any meeting with the employer to correct any deficiencies; and
  • A notification that the employee has the right to representation during any meeting scheduled with the employer.

This requirement will make it difficult for employers impacted by immigration enforcement actions to keep the results of such actions confidential.  

Conclusion

Meltzer Hellrung attorneys are not licensed to practice law in the State of California and we do not feel comfortable advising on how to comply with this particular statute. We encourage our clients with facilities in California to set up a conversation that includes us and their California employment counsel. If you do not have California employment counsel at this time we can recommend attorneys who practice in this area.

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Diversity Visa Lottery 2019 Reopens Until November 22

Posted November 3, 2017Kristen Kellar - Sr. Paralegal - Team LeadGreen Card

The U.S. Department of State has restarted the annual Electronic Diversity Visa Lottery. The visa lottery website was previously shut down in October due to a technical issue. The application is now available through the State Department’s website and new submissions will be accepted until noon Eastern Standard Time on November 22, 2017. All entries submitted during the prior submission period of October 3rd to 10th are no longer valid and those who entered then must reapply to be considered in this year's lottery.

The Electronic Diversity Visa Lottery makes 55,000 green cards available to lottery winners from countries with low rates of immigration to the United States. Individuals from most countries around the world can submit a free application to be considered in the diversity visa lottery.

In order to qualify you must have been born (or your spouse must have been born) in one of the qualifying countries.

Individuals born in the following countries are NOT eligible to participate in the visa lottery:

  • Bangladesh
  • Brazil
  • Canada
  • China (mainland-born)
  • Colombia
  • Dominican Republic
  • El Salvador
  • Haiti
  • India
  • Jamaica
  • Mexico
  • Nigeria
  • Pakistan
  • Philippines
  • Peru
  • South Korea
  • United Kingdom
  • Vietnam

Second, you must have at least a high school education or its equivalent OR two years of work experience in the last five years in an occupation that takes at least two years of training or experience to perform. Guidance on determining whether your occupation qualifies can be found here.

We encourage individuals from qualifying countries to apply. If you are selected you can immediately apply for a green card.

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USCIS Increases Scrutiny for Visa Extension Petitions

Posted October 24, 2017Articles

USCIS has rescinded a policy memo in place since 2004 instructing adjudicators to give deference to prior agency determinations of eligibility when reviewing applications for extension of nonimmigrant visa status. This change will impact all visa categories, including H-1B, L-1, O-1, and TN, which are frequently reviewed by USCIS. Nonsensically, USCIS has claimed that this policy of deference was a burden on the agency. USCIS claims:

Further, because it was viewed as a default position upon beginning review of a filing, the deference policy may, in some cases, have had the effect of limiting the ability of adjudicators to conduct a thorough review of the facts and assessment of eligibility in each case. In addition, that policy likely had the unintended consequence of officers not discovering material errors in prior adjudications. While adjudicators may, of course, reach the same conclusion as in a prior decision, they are not compelled to do so as a default starting point.

This will likely have a significant impact on the review of extension petitions.

More Frequent Requests for Evidence

We expect that one of the most concrete results of this memo will be a further increase in the issuance of requests for evidence. Cases that likely would have been approved without challenge in the past will now likely be subject to an RFE.

Greater Likelihood of Denial

With higher levels of scrutiny we also expect to see higher rates of denial. We will be opening all the tools in our toolbelt to help clients through these challenges, including motions to reopen, appeals to the administrative appeals office, and appeals directly to US Federal Court.

Timing and Extensions

Visa extension petitions can always be submitted up to six months in advance of the expiration of the current visa status. Given the increased likelihood of an RFE we will continue to encourage clients to file extension petitions as early as possible to avoid running up against issues of the extension of work authorization beyond the 240-day automatic extension of status following the timely submission of an extension petition.

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What to Expect at an Employment-Based AOS Interview

Posted October 14, 2017Matthew Meltzer - Partner and Co-FounderGreen Card

USCIS is now requiring all employment-based green card candidates to attend an in-person interview in order to adjust status. USCIS is interviewing all applicants who submitted Form I-140 on or after March 6, 2017. Individuals whose Form I-140 was submitted prior to that date may still be called for an interview.

What to Bring to the Interview

Individuals called for an interview will receive a formal notice from the USCIS with a date and time for the interview. The notice will also list what documents to bring, but the notice has not yet been updated to reflect employment-based petitions. We recommend carrying the following documents:

  • Original passport
  • Current I-94
  • Prior immigration documents such as I-797's, I-20's, EAD cards, etc.
  • Birth certificate
  • Marriage certificate
  • Letter from sponsoring employer confirming job title, offered wage, and position responsibilities
  • If in a non-immigrant status such as H or L, your two most recent pay stubs
  • Diploma and transcripts (originals are not needed, but if available you should take them)
  • Employment verification letters submitted with Form I-140 (originals are not needed, but if available you should take them)
  • Updated medical exam if your last exam is over one year old or an exam was never submitted

Will Dependents Have Interviews?

Yes, your dependents will also have interviews. USCIS may waive interviews for children under 14 years old. 

What Dependents Should Bring to the Interview

  • Original passport
  • Current I-94
  • Prior immigration documents such as I-797's, I-20's, EAD cards, etc.
  • Marriage certificate for spouse
  • Birth certificate for children
  • Prior divorce documentation, if any
  • Updated medical exam if your last exam is over one year old or an exam was never submitted
  • If you and your spouse have been married for less than one year or have been living in different locations please contact your Meltzer Hellrung attorney for a discussion on whether additional documentation is needed

What Questions Will the USCIS Ask

  • Clarification of any question on the I-485, such as biographical information, immigration history, and travel history
  • Where you will work
  • What your current job duties and salary are or will be
  • Your educational background
  • Your employment experience
  • Whether your employer still intends to employ you in the job outlined in the I-140
  • Whether you still intend to take up the job described in the I-140 or whether you have changed jobs pursuant to portability rules

To further discuss how to prepare for your adjustment of status interview please contact your Meltzer Hellrung attorney.

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PERM Post-Filing Timeline Relaxed for Employers

Posted October 11, 2017Articles, Green Card

The Office of Foreign Labor Certification (OFLC) has altered its timeline for employers to certify sponsorship after the filing of a PERM application. Previously, after the ETA 9089 was filed, an email questionnaire was sent to the employer asking them to confirm the filing and the sponsorship. Their response had to be received within 7 days for the PERM to continue processing. This tight timeline placed a burden on HR departments to be especially diligent post-PERM filing.

The OFLC still requires the employer to respond to an email questionnaires but has now relaxed that timeline to allow employers up to 30 days from the day the questionnaire is sent to respond. A reminder email will be sent after 7 days of non-response and if no response is sent within 30 days the PERM will be denied due to non-confirmation of the position.

Meltzer Hellrung LLC will continue to work with clients to notify them of their PERM obligations and monitor response time to ensure compliance.

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