Warning: ICE Build-Up a Worry for Employers Navigating I-9 Compliance
The Obama Administration is launching another round of worksite investigations—this time, returning to employers that have already been the subject of I-9 inspections during the last three years. Approximately 500 employers are being re-visited by Special Agents to confirm that noncompliant activity identified during prior reviews has been remedied, according to U.S. Immigration and Customs Enforcement. Generally, businesses must make sure they are hiring only people who can work legally in the U.S. Businesses that previously have received warning letters or administrative fines may now be the subject of treble damages if ICE Special Agents find that, notwithstanding the prior review, the employer continues to make the same mistakes.
DHS Outlines Plans to Attract and Retain Highly-Skilled Immigrants and Entrepreneurs
In a January 31, 2012 press release, the Department of Homeland Security (DHS) announced plans to reform some administrative practices to ease the visa process and reduce immigration burdens in an effort to retain highly-skilled foreign nationals and attract new business investment to the United States. The proposed reforms are being implemented in line with the White House Startup America Legislative Agenda, which proposes tax breaks, capital for startups, and visa reforms to boost high-skilled workers and entrepreneurs. DHS stated that “the President supports legislative measures that would attract and retain immigrants who create jobs and boost competitiveness in the U.S., including creating a ’Startup Visa,’ strengthening the H-1B program, and ’stapling’ green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields.” DHS did not disclose when the proposed reforms will be implemented, and the changes will not likely take effect for several months or more, until they progress through the federal regulatory approval process.
H-2A Workers: IRS Advises on W-2/1099 Reporting and Mandates Backup Withholding When SSN is Missing
With 2011 W-2s due right about now, the IRS is committing manpower and enforcement on compliance relating to 2011 compensation that a grower paid to its foreign agricultural workers admitted into the US on H-2A visas. See most recent IRS guidance.
Immigration eAuthority (January 2012)
February 2012 Visa Bulletin: EB-2 India and China Priority Dates Leap Forward One Year; H-1B Fiscal Year 2013 Filing Season - Get Ready for April 2; PERM Profile - Updates and Trends in the Labor; Certification Process; Compliance Corner.
I-9 Compliance: Avoiding Traps of New Federal Security Features
Hiring managers know that in order to legally utilize immigrant workers, they must accurately complete an Employment Eligibility Verification Form I-9. But, there’s a redesigned federal document that is leading to confusion as businesses try to comply with the law.
Cap-Subject H-1B Petitions for FY 2013 May Be Filed on March 30, 2012
The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2013 begins on Friday, March 30, 2012. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2013 on Monday, April 2, 2012 for employment with a start date of October 1, 2012 or later.
Obligation of U.S. Citizens and "Tax Residents"
Many people who have come from abroad do not realize the nature and seriousness of the obligation of U.S. citizens and “tax residents” to report to the IRS their worldwide financial holdings regardless of whether they will owe U.S. tax on them, and that they also are taxable in the U.S. on their worldwide income subject to exemptions and tax treaties. Many people do not realize that tax residents include not only people who have obtained a “green card” for U.S. permanent residence, but also people who have had certain amounts of physical presence in the U.S. without a green card (in temporary status or no status at all). Foreign nationals might not realize how severe are the penalties for non-compliance with the asset reporting obligation, not to mention the tax payment obligation. The opportunity to cure reporting failures should be seriously considered.
OSC "Fact Pattern Flyer" about Discrimination: Accidentally Misleading?
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the U.S. Department of Justice recently published a three-page "Fact Patters Flyer," listing examples of immigration status and national origin discrimination in employment. In viewing the set of employer actions purely from the point of view of discrimination, the OSC accidentally gives the false impression that certain actions are appropriate if all workers are treated the same, and employers should be counseled not to take that implication. Misleading Examples. For instance, the list includes when an employer "rejects valid work authorization documents from non‐U.S. citizens but accepts the same documents from U.S. citizens," implying that it would be lawful for an employer to reject Social Security cards as List C documents of work authorization for I-9 purposes for ALL workers, whether they check Section 1 to reflect U.S. citizenship, nationality, permanent residence, or foreign national status.
Immigration eAuthority (December 2011)
January 2012 Visa Bulletin: Continued Forward Movement in EB-2 India and China Priority Dates; Fiscal Year 2012 H-1B Cap Exhausted; House of Representatives Passes the Fairness for High-Skilled Immigrants Act (H.R. 3012); Discrimination Enforcement on the Rise.
H-1B Cap Reached
The U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2011 that it had received enough H-1B cap-subject petitions to reach the annual 65,000 "regular cap" limit and that it would reject petitions filed thereafter. USCIS exhausted the 20,000 H-1Bs reserved for foreign nationals with U.S.-earned advanced degrees on October 19. The H-1B1 category is still available for nationals of Chile and Singapore and the numerical limit on the E-3 specialty occupation category for citizens of the Commonwealth of Australia has not yet been depleted.
