DHS Supplemental Final Rule on "Safe Harbor" for Employers Receiving "No Match" Letter 

• October 22, 2008 DHS announced a supplemental final rule clarifying steps employers may take to resolve discrepancies identified in a "no match" letter signed by the Social Security Administration (SSA) or a "Notice of Suspect Document" from the Department of Homeland Security (DHS). Adherence to the rule will provide employers "safe harbor" from the presumption of constructive knowledge that they knowingly hired or retained a worker who had no work authorization. (85 IR 2828, October 27, 2008) 

South Carolina Illegal Immigration Reform Act (2008)

• South Carolina Department of Revenue Notice July 1, 2008 – The Department of Revenue reminded employers that there are new constraints arising from the enactment from the South Carolina Illegal Immigration Reform Act to include:
  
  • No income tax deduction for certain payments to unauthorized aliens;
  • A 7% income tax withholding is required for funds paid on a Form 1099 for any person who has failed to provide the withholding agent with the taxpayer’s identification number or social security number or who supplied an incorrect number or a TIN issued by the IRS for a non-resident alien; and
  • No wages or remuneration for services may be paid to an individual of $600 or more per year if the individual is an unauthorized alien.  

• The DHS I-9 rules require employers to verify employees are authorized to work in the U.S. Employers contracting with DoD, GSA or NASA must now use the E-Verify System and agree to a Memorandum Understanding (MOU) with DHS. Under the program each worker’s identity and employment eligibility information is checked against the databases of the Social Security Administration, the U.S. Citizenship and Immigration Services (USCIS) database and other government agencies. If the data entry is not confirmed, the individual shall receive a Notice of Tentative Non-confirmation pursuant to which a worker may challenge the notice under a Referral Letter and has eight (8) federal government work days to visit a SSA Office or call the Immigration Service to resolve the discrepancy. If the worker fails to contest the Tentative Non-confirmation or if the federal agency is unable to resolve the discrepancy through documents presented to authorize employment, the worker’s employment may be terminated. Contracting Officers shall include in contract solicitations under FAR 22.1803 that federal contractors must enroll in the E-Verify program to verify eligibility of all new hires working in the U.S. unless they fit an exception for higher education institutions, state or local governments, a federally recognized Indian tribe or act as a surety performing under a takeover agreement. These requirements are to be incorporated in subcontracts for commercial or non-commercial services except for certain commercial services associated with commercial off-the-shelf items. A contractor is not required to verify employment eligibility of employees who hold an active security clearance or for whom background investigations have been completed and credentials issued pursuant to the directives of DHS. If a contractor has its MOU terminated it will be denied access to the E-Verify System and will be referred to the terminating agency for a suspension or debarment investigation. (73 Fed. Reg. No. 221, November 14, 2008, P.67651); (Contact the editor for a PowerPoint presentation on this new rule.)

DHS Analysis Electronic System for Travel Authorization (ESTA) Enhancement 

• DHS will publish a notice in the Federal Register in the coming weeks to implement the mandatory ESTA requirement on January 12, 2009 for all Visa Waiver Program (VWP) countries. Once the system is mandated, all nationals of VWP countries who plan to travel to the U.S. under a visa waiver will need to receive an Electronic System Travel Authorization prior to departing for the U.S. (85 IR 2781; October 20, 2008).

CIS Increases the Period of Stay for TN Professionals from One to Three Years 

• The initial period of admission for TN workers is extended from one (1) to three (3) years and extensions may be in granted increments of up to three (3) years instead of the prior maximum period of one (1) year. (73 Fed. Reg. 61332; October 16, 2008)

U.S. Republic of Korea and the U.S. Enter J-1 Exchange Visitor Program 

• Up to 5,000 qualifying university students and recent graduates from the Republic of Korea will be permitted to enter the U.S. on a J-1 Exchange Visitor Program for a period of up to 18 months. A like program known as the Working Holiday Program (WHP) will offer to U.S. students a similar opportunity to pursue work, study and travel in the Republic of Korea. (85 IR 2556; September 29, 2008)

Minimum Wage Enforcement Authority of the U.S. DOL Does Not Extend to Private Compensation Agreements between Parties

• The plaintiff was a H-1B worker hired pursuant to an approved Labor Condition Application. At the end of the employment, the petitioner claimed that wages were owed. The Administrator of the Wage and Hour Division of U.S. DOL determined that back wages of $3,690 were owed based upon a wage rate of $63,000 per year. The employer paid the back wages and the petitioner requested a review of the determination claiming back wages should have been calculated as $90,000 a year which was claimed as the actual salary pursuant to a raise received prior to termination. The complaint was dismissed on the grounds that the request for reimbursement of business expenses and additional salary was a contractual matter and the determination of back wages allegedly owed is properly calculated in accordance with the prevailing wage rather than a claimed actual wage. (13 IB 1265; October 1, 2008)

Multi-National Manager Appeal Won by Employer

• Administrator Appeal Office (AAO) reversed the Nebraska Service Center Director on a denial of a L-1 petition for multi-national manager status on the grounds that the Director placed too much emphasis on the description of the daily duties of the beneficiary without taking into account other relevant management factors such as overall organizational structure and the position of the beneficiary with respect to others within the structure. (85 IR 2793; October 20, 2008)

FBI Motion to Dismiss Denied Where Plaintiff Sought to Compel Criminal Background Check in Citizenship Proceeding 

• Plaintiff applied for naturalization on September 6, 2006. DHS referred the application to the FBI for a criminal background check which agency did nothing relative to the check. After the complaint was filed the FBI began to work on the file. The Court dismissed DHS but not the FBI finding that the Court lacked jurisdiction to compel DHS to adjudicate the application absent completion of the criminal background check but did have jurisdiction to compel the FBI to complete the check. [Kakushadze v. Chertoff, 2008 U.S. DIST. LEXIS 60995 (SDNY; July 24, 2008)]

Employer Rebuts the Final Determination of the Certifying Officer in a Labor Certification 

• In a dispute whether the advertisement was in a newspaper of “general circulation”, the Board of Alien Labor Certification Appeals (BALCA) upheld the employer’s challenge to the certifying officer (CO) on the grounds that the final determination denying certification failed to give the employer an adequate opportunity to timely submit evidence on the issue. The CO had issued a Proposed Notice of Findings to deny certification where the final determination had stated that the advertisement had been run in a paper that did not meet the definition of a newspaper of general circulation. (85 IR 2683; September 29, 2008)

• Consolidated Security, Disaster, Assistance, and Continuing Appropriations Act, 2009 included the extension of immigration related programs E-Verify and the EB-5 Programs. (85 IR 2629; October 6, 2008

Sources: IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association