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DUI Arrest Could Now Lead to Visa Revocation for Employees in U.S. Even Without a Conviction

Employers should be aware that foreign nationals in the United States on nonimmigrant work visas (such as H-1B, L-1, and O-1 visas) are subject to severe consequences following an arrest for driving under the influence (DUI) or driving while intoxicated (DWI), even when there is no finding of guilt. Per longstanding practice and U.S. Department of State (DOS) regulations, if the DOS discovers derogatory information about an applicant after a visa is issued, it may determine, after an evaluation of the facts, whether it is prudent to revoke the previously issued visa out of concern for public safety. In a shift from previous practice, the DOS has recently begun exercising this discretion in a more stringent manner. As a result, immigration lawyers have been reporting increased instances of visa revocations for individuals already in the United States.

5th Circuit Throws Out I-9 Fines Against Employer for Alleged Section 2 Attestation Deficiencies

Vacating a $226,000 fine against Employer Solutions Staffing Group for alleged Form I-9 violations, the Fifth Circuit Court of Appeals has ruled that it was not a violation for employer to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing photocopies of the documents sent by the Texas person reviewing the forms. Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).

Fines for I-9 and Other Immigration Violations Have Increased as of August 1, 2016

The U.S. Departments of Homeland Security (DHS), Labor (DOL) and Justice (DOJ) have increased the civil fines for employers that commit immigration-related offenses, such as unfair employment or discrimination practices, H-1B and H-2B program violations, and Form I-9 and E-VERIFY violations. The new penalties, which went into effect on August 1, 2016, apply to violations that occurred after November 2, 2015.

Fifth Circuit Overturns $226,000 Fine Imposed on a Staffing Company for Completing Section 2 of Form I-9 Remotely

The Department of Homeland Security (DHS) takes the position that employers must physically review original documents in the actual presence of a new hire when completing the attestation in Section 2 of the Form I-9 (the attestation is a statement from the employer indicating the employer reviewed the new hire’s documents and the documents belong to the new hire). In other words, DHS prohibits employers from reviewing copies of documents remotely or via video when completing a Form I-9. In a decision published on August 11, 2016, the United States Court of Appeals for the Fifth Circuit found that a Minnesota staffing company was not liable for a $226,000 fine it received when it completed Section 2 in Minnesota after reviewing copies of the Form I-9 documents presented by new hires located in El Paso, Texas.1

Experts Share Their Thoughts to Close Out the 2016 ILG National Conference

The final day of the 2016 ILG National Conference wrapped up with a morning of breakout sessions, a keynote address from Beverly Bond, and ended on a high note with the ever-favorite Expert Panel.

A Modern Makeover for the PERM Program

The U.S. Department of Labor’s (DOL) electronic permanent labor certification system (PERM) as we know it has been in existence for the past 10 years. This year, the Office of Foreign Labor Certification (OFLC) is expected to publish new regulations aiming to modernize the current PERM program to better meet the needs and practices of employers. The OFLC has expressed a desire to see the final regulation published before the end of President Barack Obama’s term, meaning action on the proposed rule would need to happen soon—potentially by the end of summer. Although the OFLC has not issued the proposed regulations for public comment yet, the listening session conducted by the OFLC with stakeholders in 2015 gives us insight into possible changes.

Immigration Penalties Increase Effective August 1, 2016

The Department of Justice has issued a new rule increasing penalties for I-9 paperwork violations, unlawfully employing unauthorized workers, and unfair immigration-related employment practices. The increase was triggered by the 2015 Bipartisan Budget Act, which revised the formula for adjusting federal agency penalties for inflation. The increase applies to civil penalties assessed after August 1, 2016, for violations that occurred after November 2, 2015. The increases do not apply to violations that occurred on or before November 2, 2015. Additionally, they do not apply to penalties assessed prior to August 1, 2016, even if the violation occurred after November 2, 2015.

STEM OPT 7-Month Extension Application Deadline Coming Up on Monday, August 8

On March 11, 2016, U.S. Department of Homeland Security (DHS) published a final rule pertaining to optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM).

Increased Penalties for Immigration Violations Go Into Effect August 1, 2016

August 1, 2016, marks the date that increased penalties for various immigration-related violations go into effect. The increases are the result of separate rules recently published by the Department of Labor, Department of Homeland Security and Department of Justice. According to the agencies, the increased amounts are required adjustments for inflation based on the Consumer Price Index.

DOL Judge Says Flagging Economy Insufficient Basis to Relieve H-1B Employers of Wage Obligations

Employers employing foreign nationals in H-1B nonimmigrant visa status must pay their H-1B employees the wage specified on the Labor Condition Application (LCA) certified by DOL, regardless of whether the H-1B employer is enduring difficult economic or financial periods due to struggling national economy, an Administrative Law Judge for the Department of Labor has ruled in Department of Labor Wage and Hour Division v. Shriiji Krupa Inc.