IMMIGRATION LAW UPDATE
New
Requirements for Visa Waiver Visitors - January 12, 2009
The visa
waiver program allows visiting foreign nationals from
certain countries to enter the US for no more than 90 days for
pleasure or business meetings. Beginning on January 12,
2009, travelers who plan to enter the US through the visa waiver
program will be required to obtain travel authorization through the
Electronic System for Travel Authorization (ESTA)
prior to departing for the US. The Department of Homeland
Security has published
a notice regarding this upcoming requirement. The ESTA system is available on the Department
of Homeland Security website.
Update on SSN No-Match Safe Harbor Rule
On
October 23, 2008, the Department of Homeland Security
(DHS) issued a supplemental final rule regarding actions employers
should take to benefit from "safe harbor" provisions when a
social security number "no-match" letter is received.
The supplemental final rule expands on the March 2008 proposed rule
and addresses items raised in a pending lawsuit regarding the
rule. See
the Clark Hill website for more information on the rule
and the pending lawsuit. Implementation of the rule remains on
hold while litigation regarding the rule is resolved. Note that
as of April 2008, the Social Security Administration has not sent any
no-match letters to employers and has stated that it will not send
letters to employers until the pending lawsuit is resolved. The
SSA will continue its practice of sending
no-match letters to employee's home addresses.
E-Verify
Required for Federal Contractors
E-Verify is an electronic work authorization
verification system administered by the Department of Homeland
Security (DHS). For more on E-Verify visit the DHS website. The E-Verify
program has received funding until March 2009, and officials have
stated that USCIS seeks to enhance and
expand the program in 2009. As of January 15, 2009, most US
federal contractors and qualifying subcontractors will be required to
use E-Verify. USCIS has published an informational bulletin regarding
federal contractors and E-Verify.
Free Website
Helps Foreign Nationals Learn English
The US
Department of Education has launched a free website to help foreign
nationals learn English. The website is located at www.USALearns.org and assists
individuals with reading, writing and speaking English.
Legislation
Update
In light of the Presidential election earlier this
month, Clark Hill has learned that most legislative
"insiders" believe that comprehensive immigration reform
legislation is not expected before 2011. In the meantime, we
will probably see small, and hopefully positive, changes in
immigration law. It is unlikely that the numbers of H-1B
and H-2B visas will be increased prior to any comprehensive
immigration reform legislation.
President-elect
Barack Obama's
expected nominee for the Department of Homeland Security
secretary is Arizona Gov. Janet Napolitano. As DHS secretary,
Napolitano would lead efforts to enforce immigration laws. Last
year as governor, she signed into law the nation's most severe
penalty for employers who knowingly hire unauthorized workers -
taking away a firm's license for a second violation. She also
required Arizona businesses to register with E-Verify. However,
pro-immigration commentators have generally received this appointment
with enthusiasm.
On November 19, 2008, President-elect Barack
Obama's transition team named T. Alexander Aleinikoff and Mariano-Florentino
Cuellar to the immigration policy working group that will develop
immigration policy for the new administration. Aleinikoff and Cuellar served as immigration
advisors during the Clinton administration.
US Immigration
and Customs Enforcement (ICE) Updates
Below are
summaries of recent efforts by the US Immigration and Customs
Enforcement (ICE) as they enforce laws related to employment of
persons not authorized to work in the US. While there were many
actions that took place recently, below are a few of the highlights.
CEO, Managers, and Human Resources Employee of Agriprocessors
Indicted
On
November 21, 2008, ICE announced that the former CEO,
three company managers and a human resources employee at Agriprocessors had been criminally indicted on
charges that included: conspiracy to harbor illegal aliens for
profit, harboring illegal aliens for profit, conspiring to commit
document fraud, aiding and abetting document fraud, aiding and
abetting aggravated identity theft, and bank fraud.
Manufacturer and President Plead Guilty
On
November 3, 2008, ICE announced that a New Bedford,
Massachusetts manufacturer and its president had pled guilty to
charges of hiring illegal aliens, shielding them from detection, and
failing to pay overtime. The president of the company has
agreed to pay a fine of $30,000 and receive up to eighteen months in
jail. On November 18, 2008, the company reached a settlement to
pay $850,000 in a lawsuit involving claims of unpaid overtime.
Human Resources Employee at Agriprocessors
Pleads Guilty
On
October 29, 2008, ICE announced that a human resources
employee (in addition to the employee discussed above) at Agriprocessors had pled guilty to harboring
illegal aliens and aggravated identity theft. The human
resources employee faces a mandatory minimum sentence of two years in
prison and a possible maximum sentence of 12 years in prison, a
$500,000 fine, $200 in special assessments, and four years of
supervised release.
