John Valdez’s Legal Blog

Within the next few days, the U.S. Immigration and Customs Enforcement (”ICE”) of the Department of Homeland Security intends to publish a new rule involving no-match letters that could impact millions of employers.  A no-match letter is a letter from the Social Security Administration informing an employer that its records do not match information provided by the employer about the employee.  There are many possiblities why this type of information does not match, but according to the government, by far the most common reason is that the employee has provided the employer with false information in order to work without authorization.

The government attempted to issue this regulation back in August 2007, but the rule was challenged in Court and an injunction stopped implementation of the rule; the legal case is still pending.   The government appears so confident that it has addressed the Court’s concerns and will soon prevail in the litigation that it is publishing the new rule.  The rule will state how certain employers receiving no match letters can follow a suggested set of procedures over a 93 day period.  The procedures include new I-9 verification in some cases.   If the employer follows these so-called safe harbor procedures, it will generally not be held liable for breaking laws regarding illegal employment. 

We will soon know if the government will prevail in the litigation action.  If it does, we will provide detailed information regarding how your company can address the receipt of a no match letter. 

I had a little bit of bad luck today, and alot of good luck, too, all occuring when I was in an accident.  

The Accident.  I was driving to work this morning when I approached a large intersection at Springdale Street and Westminster Boulevard.  Driving on Westminster Boulevard I entered the intersection with a green light.  Because this is a busy intersection, there were many cars stopped and waiting to turn on Springdale Street to my left.  These cars blocked my view so that I did not see the White Truck barrelling along into the intersection, against a RED light until it was almost on top of me.  I tried to speed up my little Sentra at the last second. 

The bad luck.  I could not speed up enough to get out of the way.   Another two feet forward and the accident would not have happened.  Instead, the truck clipped me at the back of my car.  Now I have to deal with all of the insurance, body shop, and car rental issues. 

 The goood luck.  On the other hand, the truck was destined to hit my card about five feet more toward the front of my car before I sped up, which means the Toyota truck would have ploughed right into the driver’s door, where I was.  Since the truck was much bigger and taller than my little Sentra, I think I would have been spending the day in the hospital.  By the way, I was a little shaken by the whole affair, but not physically hurt.

It is funny how little things can change things so much.  The young girl who hit me, never saw me.  She told the police she was reaching down in her car and took her eyes off of the road before reaching the intersection.  She may have dropped something, or possibly was texting.  In any event, her mistake could have proved a major tragedy.  As for me, I realize that were it not for a split second of reaction time, my life might never have been the same.  Maybe I would not be helping immigrants in the future, and maybe my family would have been stuck with a crippled person.

 I think I will count this as a great day.     

President Bush has announced the expansion of the visa waiver program to include seven new countries:  The Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea.  Under the visa waiver program, citizens of member countries may travel to the United States for business or tourism without a visa.  The Visa Waiver is similar to the B-1 and B-2 categories for non-immigrants, but the travelers do not have to process a visa at a U.S. embassy.  The Bush administration expects that the new visa waiver countries will be able to send their citizens to the United States on visa waivers in approximately one month.

The visa waiver is a very convenient tool for travel, but it is somewhat restrictive.  A visa waiver traveler is not permitted to extend status, change to a non-immigrant status, or, generally, adjust status to that of a lawful permanent resident.  In addition, applicants for a visa waiver are required to sign a waiver of any right to contest an action for their removal, other than on the basis of asylum. 

 If you are planning to come to the United States on  a visa waiver, but are also considering applying for a work visa or permanent residence, I advise you to consult with us before travel, so that the appropriate immigration strategy will be used and no laws are accidentally violated.

Anyone who has studied immigration law realizes that generally there are very few changes to the laws in the period immediately preceding a major election.   Immigration is known as a “hot button issue,” one the raises emotions and, no matter which side a candidate takes on the issue, can harm a candidate’s election prospects.  I suspect that for this reason, both John McCain and Barack Obama have largely ignored immigration issues.  Indeed, neither candidate addressed immigration in the debates. 

Still there have been some small movements in the immigration world.  On October 16, 2008, the USCIS issued final regulations which increase from one to three the amount of time a nonimmigrant can be granted TN status.  This regulatory change does help Canadian and Mexican nationals and their employers by giving them more flexibility in making plans for U.S. employment.  It also saves them expense, since extension requests, which cost money in terms of government fees and legal expenses, will not be needed as often.

In addition, the President signed two new bills into law in the past few weeks.  One law, signed on September 30, 2008, extends the E-Verify Program.  This program is meant to help employers electronically verify worker eligibility.   The program has noted flaws and can potentially be used to assist the government with its efforts to conduct worksite raids.  You may see my earlier blog on the subject for more information.

The other new statute, involving religous workers, was signed into law by President Bush on October 15, 2008.  This law continues the immigration program for non-minister religious workers.

Both the E-Verify and religous worker laws were only extended until March 2009.  Congress may have written such short extensions because of reservations regarding the effectiveness of both programs.  Congress wants the USCIS to promulgate regulations that will help cut down the instances of fraud in the religous worker program.  Congress may also be concerned about the error rate involved in the E-Verify Program.  Both of these laws will be reconsidered in the next Congressional term.

I am very hopeful that next year, a non-election year, will bring major reforms to the Immigration Laws that will aid immigrants.  Until that time, I will keep you posted on any other changes.       

On October 8, 2008, the USCIS released a report on incidences of fraud and technical mistakes in the H-1B Program.  This report, described below, may well result in a more burdensome H-1B process.

 The report involved a sampling of cases filed in 2005 and 2006 that were randomly chosen for investigation.  The investigation involved the review of cases filed and the use of workplace inspections.  The results, as reported, were somewhat surprising.  The USCIS found that out of 246 cases, 20.7% involved incidents of fraud and technical violations.  Fraud cases made up 13.4% of the findings, while technical violations were found in 7.3% of the cases.  I would caution readers that while the report cites violations in more than 20% of the cases, it is entirely possible that petitioners and beneficiaries may have valid defenses to the accusations that could be asserted in administrative or court proceedings.

Regardless of the accuracy of the report, the findings are sure to motivate critics of the Program to demand changes to the H-1B Program.  Many of the findings will bring outrage from these critics, including reported incidents of failure to pay the prevailing wage, improper employer demands for employees to pay H-1B business expenses, forged documents, and even a few incidents where the petitioning company allegedly did not exist.

Having represented employers on H-1B petitions for more than 12 years, I can attest to the fact that the employers I have worked with have tried to fully comply with H-1B rules and regulations.  Therefore, I am very skeptical of the government’s H-1B findings.  Regardless of my skepticism, the government may very well impose some or all of the following actions:  

•  Using independent open-source data to obtain information about visa seekers or petitioning companies.  This information could involve checking public information on a beneficiary’s credentials, commercial records to ascertain if a company is truly operating, and other such data.
• Using risks factors to apply greater scrutiny to cases in a class with a perceived higher incidence of fraud.  This additional scrutiny could result in much longer wait times for adjudication of many petitions;
• Adding additional evidentiary requirements that could make filings more burdensome; and
• Requiring more information on immigration forms.

Smith & Garg, PC immigration attorneys help employers follow H-1B regulations.  We are knowledgeable in all immigration compliance rules.  Please contact us if you have any questions about the H-1B program.