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On September 12, 2011, U.S. Citizenship and Immigration Services changed their long standing practice for the distribution of original approval notices for petitions and applications seeking immigration benefits, including the change or extension of nonimmigrant stay. Notices have previously been sent to counsel of record, but now are sent directly to the petitioner or applicant. Employers and individuals have immediately noted several unattended consequences of this change in long-standing policy.

Many approval notices include a revised or extended Form I-94, Arrival and Departure Record. This original document advises foreign nationals of their current nonimmigrant status and the date on which that status expires. Many governmental agencies, including the state motor vehicle departments, will not provide services to foreign nationals (for example, a driver’s license) unless the original document is provided. The distribution to the petitioner, usually the employer, complicates this process.…

Continue Reading USCIS Change in Mailing Procedures Has Substantive Impact upon Employers and Foreign National Employees

Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food’s position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.…

Continue Reading Department of Justice Complaint Against Farmland Foods Highlights Fine Line Employers Must Walk In Evaluating Employment Authorization Documents

Investors likely gave no thought to I-9 compliance when buying shares in the Mexican fast food restaurant Chipotle. The Immigration and Customs Enforcement I-9 audits of the company’s restaurants that began late last year and are ongoing already have resulted in hundreds of allegedly unauthorized workers losing their jobs. That was just the beginning. With…

As of January 26, 2011, Citizenship and Immigration Services indicated that it received sufficient H-1B petitions to reach the annual cap of 65,000 visas for fiscal year 2011 (October 1, 2010 – September 30, 2011). As of December 22, 2010, it had received more than 20,000 petitions toward the annual exemption amount for individuals with…

The U.S. Department of Labor announced this week a $638,449 back wage consent order and $126,778 civil fine against a New Jersey IT consulting firm, Peri Software Solutions, Inc. The announcement indicated that the back wages resulted from the employer’s failure to compensate the H-1B workers as required under Department of Labor regulations. The civil fine arose from two issues:  the employer failed to provide notice of its intent to employ H-1B workers and it sued former employees "for early cessation of employment."

The announcement may raise more questions than it answers concerning the specific facts involved, but it serves as a good reminder for H-1B employers that the applicable regulations are very exacting and can be costly when disregarded.  While this case appears to have involved a failure to pay the required wage rate, employers may be surprised to learn that the wage obligation continues as long as the H-1B petition remains valid, which in many cases can be for up to three years. Even after an H-1B worker has resigned or been terminated, the Department of Labor requires the employer to pay the worker’s wages until U.S. Citizenship and Immigration Services (USCIS) has revoked the H-1B petition. The H-1B regulations in fact require employers to notify USCIS when the H-1B worker’s employment ends. Requesting revocation of the petition therefore complies with USCIS regulations and avoids a potential Department of Labor assessment of back wages.

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Continue Reading H-1B Employer Assessed Back Wages and Fined

The U.S. Department of Justice this week announced a settlement with Catholic Healthcare West and two subsidiaries over alleged document abuse violations related to hiring practices. The Justice Department determined that the employer violated the discrimination provisions of the Immigration Act by permitting native-born U.S. citizens to choose which documents to provide but demanding additional…