John Valdez’s Legal Blog

I think parents sometimes get too much credit for a good child.  Sure, parents play a huge role in the development of their childrens’ lives, but that is our job as parents, and we should relish the privilege.  In this blog, I hope you will endulge a proud father a little while I sing praises about my daughter, Ivanka, who deserves credit for her accomplishments.

To begin, I think I was very lucky to be blessed with such a wonderful child.  Ivanka has made her mom and dad very proud.  She is respectful, hard working, and modest.  All at ten years of age.  And at this time of year, we also get the added treat of receiving her report card.  This is what her teacher had to say on the report:  “Ivanka is a remarkably diligent student with wonderful self-control, and her outstanding grades reflect this.”  Her marks were all A+ or E (excellent), and her tests scores ranged from 98% to 103%.    I think that in some of her subjects, she did not miss a test question all year long.  Her success can be attributed to her maturity, hard work, and focus on the important things.  I guess it bears repeating, I am very fortunate to have such a great daughter.  I think my wife and I will have to find some special ways this week to let her know how proud we are of her. 

As I will explain, in light of a new court decision, employers should proceed cautiously before terminating employees who are the subject of a mismatch of information in certain records, such as the information found in “no match letters.”   

In an earlier article, I wrote about the Bush Administration’s attempt to implement regulations concering “no match” letters.   No match letters are letters sent by the Social Security Administration (”SSA”) notifying an employer of a mismatch of information in government databases concerning the employee’s name and social security number. The regulation calls on employers receiving no match letters to undergo rather complex and involved steps under a safe-harbor procedure to avoid liability in the event the government determines any of its employees are working without permission. 

One result of the regulation, if implemented, would be that if an employer did not follow the safe-harbor provisions after receipt of a no match letter, the government could determine that the employer had “constructive knowledge” of the worker’s lack of work authorization.  Such employers could be heavily fined and criminal penalties could, in some cases, be imposed.  A California District Court has preliminarily enjoined the government from enforcing the regulations.  See AFL v. Chertoff, No. 07-4472, __ F. Supp. 2d __, 2007 WL 2972952, at 15 (N.D. Cal. Oct. 10, 2007), and a final decision on the regulations could be issued in the near future.

In Aramark Facility Services v. Service Employees International Union, Local 1877, AFL CIO CLC (”Aramark”),  the United States Court of Appeals for the Ninth Circuit specifically found that a no match letter did not demonstrate that an employer had ”constructive knowledge” of unauthorized employment or any immigration violation.  The employer, Aramark Facility Services, received no match letters concerning 48 employees.  It instructed these employees to, within three days, obtain new Social Security cards or verification from the Social Security Administration that new cards were being processed.  Thirty-three of these employees failed to timely comply with the employer’s request and were terminated. 

The Court found that the employer had wrongfully terminated the thirty-three employees and ordered the employees reinstated with back pay.  The Court found that the no match letter did not, by itself, provide constructive knowledge of an immigration violation, because there are many possible explanations for the mismatch information, not involving a person’s status, such as typographical errors, name changes, compound last names prevalent in immigrant communities, and inaccurate or incomplete employer records. 

In addition, the Court rejected the employer’s argument that the workers’ failure to obtain the requested Social Security information placed it on notice that the workers were illegal, and that by continuing to employ these workers under the circumstances would cause it to violate the immigration laws.  The Court found that the employees’ lack of response to a three day notice for Social Security documentation did not indicate that they were unauthorized to work or illegally in the U.S. 

The lesson to be learned from the Court’s decision is that employers should carefully consider how to respond to information about an employee’s records.   I know of some employers who are terminating employees based on inconsistent information regarding work authorization.  Many may be taking a path leading to liability in a law suit.  Aramark is certainly paying a high price for the path it took.   

The Long Beach Attorneys at Smith & Garg are highly experienced in immigration and business issues.   We would be glad to help your company develop an effective strategy for dealing with immigration issues, including those concerning work eligibility.    

I have found that the maxim “you get what you pay for” is usually very true.  Unfortunately, the option to pay more for a service is not always available.  This unfortunate fact is certainly true with Premium Processing.  The USCIS offers a “Premium Processing” program for some, but not most of its services.

USCIS’ Premium Processing program allows foreign nationals to pay an additional $1,000 for selected case processing.  Under the program, the government promises that it will issue an approval, denial, notice of intend to deny, request for evidence, or notice of investigation for fraud or misrepresentation on a given application or petition within 15 days.  Thus, this program allows many people to obtain approval of their case in 15 days if they pay the extra $1,000 while others may have to wait for several months.  Only certain types of petitions are eligible for premium processing.

This week, the USCIS announced that it will make Premium Processing available for certain I-140 petitions.  Starting June 16, 2008, the USCIS will permit Premium Processing for I-140 petitions provided the beneficiary meets the following conditions:

• The person is currently in H-1B nonimmigrant status;
• The person will reach the sixth year of H-1B classification within 60 days;
• The person is only eligible for an extension of H-1B status beyond six years under AC21 section 104(c)* if his or her I-140 petition is approved; and
• The person is not eligible for an extension of H-1B status beyond six years under AC21 section 106(a)**. 

People about to lose eligibility for H-1B status who fit into the above-stated criteria will greatly benefit from the expansion of the Premium Processing program.  The expedited approval of their I-140 petitions may help them avoid the necessity of leaving the U.S. due to expired H-1B status.  Without premium processing, the USCIS is currently taking up to 15 months to process some I-140 petitions.  See USCIS Processing Times.

Other immigration classifications eligible for premium processing include:

• E-1
• E-2
• H-1B
• H-2B (not subject to cap)
• H-3
• L-1A
• L-1B
• L-Blanket
• O-1
• O-2
• P-1
• P-1S
• P-2
• P-2S
• P-3
• P-3S
• Q-1
• R-1
• TN1 (Canada)
• TN2 (Mexico)

The government will likely include more immigration categories in its Premium Processing program in the future. 

If you would like more information about Premium Processing, or any other immigration subject, please contact Smith & Garg’s Long Beach Immigration Attorneys.

This week, Homeland Security Secretary Michael Chertoff announced that the government will extend the validity of the employment authorization document (”EAD”) from the current maximum of 12 months to 24 months for adjustment of status applicants if their applications are expected to be pending for more than a year.  Since there are many applicants waiting for adjustment of status for more than a year, the Chertoff announcement is good news. 

While reading the remarks by Secretary Chertoff, I remembered many of the inquires I’ve had about obtaining an EAD.  Indeed, many people come to visit me with the same request: “I would like for you to file for my work authorization card.”  Because fulfilling this request is seldom simple, I thought I would write this blog to help explain the process.   

The EAD is a plastic card that can be used to verify someone’s right to work in the United States.  There are other documents that show foreign nationals are eligible to work, including the green card, but the EAD is one of the most common work eligibility documents.  Many people believe that one can simply fill out a form and apply for issuance of this card.  Unfortunately it is not that simple to gain work authorization. 

In order to be eligible for an EAD, an applicant must show that he or she is in a current status that permits issuance of an EAD.  Thus, most people who entered the U.S. without inspection or remained in the U.S. beyond their period of authorized stay are ineligible for an EAD.  There are exceptions to this general rule.  For example, asylum applicants, even if they entered the U.S. without inspection, are eligible for an EAD.  Also, foreign nationals who file for adjustment of status, regardless of prior illegal status, are eligible for an EAD.  For a list of categories of immigrants eligible to work in the U.S., please see 8 C.F.R. section 274a.12. 

There are many ways to qualify for an EAD.  The EAD form instructions list more than 40 immigration categories that can serve as a basis for obtaining an EAD.   This list does not include a very large number of immigration categories, including visitors for pleasure or work (the B-1 and B-2 visa cateogeries), dependents of H-1B workers (the H-4 visa category), or beneficiaries of immigrant visa petitions (such as I-130, I-140, I-360, and I-526 petitions).

Therefore, when people tell me they want me to apply for their EAD, what they usually need is a strategy to apply for an immigration status that either permits work without an EAD or will serve as a basis to request an EAD.   Sometimes the strategy must be long-range.  For example, if a person is out of status, I look to see if there is a way to present a case where his or her status violation will be forgiven.  If there is a forgiveness provision in the law, I might not be able to immediately apply for my client’s EAD, but may be able to take steps that will eventually lead to an EAD, like  submitting a labor certification or I-130 petition that will eventually permit my client to apply for adjustment of status.  As I mentioned earlier, adjustment of status applicants may apply for an EAD. 

Gaining work authorization usually involves much more than completing a form; it requires careful planning and execution.  The immigration attorneys at Smith & Garg are highly trained in this specialized area of law. 

I am often asked by potential clients: “When should I start the green card process”?  My usual answer is the sooner the better.  Filing for an immigrant visa or labor certification will establish a priority date, which will in turn establish your place in line for a visa, if one is not currently available under the Department of State Visa Bulletin.  If you would like information about how the Visa Bulletin works, you can check my earlier blog on the subject. 

Today, the Department of Labor issued its July Visa Bulletin.  The news wasn’t too good for the employment-based third preference category, for skilled workers and professionals.  This category went from a priority date of March 1, 2006 to “unavailable.”  The term unavailable means there are no more available immigrant visas for the category for the rest of the fiscal year, which ends on September 30, 2008.  The good news is that the Deparment of State predicts that visas will again become available for the third preference category on October 1, 2008, probably with a priority date close to March 1, 2006.  There are also long waits for most other family and employment-based categories.

Some people do not have to wait in the visa line.  For example, an immediate relative petition (for U.S. citizens sponsoring a parent, spouse, or unmarried child) is not subject to a numerical cap, and the first preference employment-based category (for priority workers) is not backlogged.   But most people are subject to a waiting period before they may obtain an immigrant visa.

Just because the visa line is backed-up does not mean you should not get in it.  The sooner you start your case, the sooner you can reserve a space in line.  Also, every so often the Department of Labor completely opens up a category, or several categories, as it did at one point last year.  Many of those in the line at the time received green cards just before the categories were made unavailable.   

The Long Beach immigration attorneys  at Smith & Garg, PC will gladly discuss ways for you to start the green card process, so please feel free to contact us.