This week, Department of Homeland Security (DHS) Secretary Janet Napolitano designated 11 new countries as eligible to participate in the H-2A and H-2B nonimmigrant visa programs.  With the addition of the 11 new designated countries, the following countries are now designated for H-2A and H-2B purposes:  Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom, and Uruguay. 

The H-2A nonimmigrant visa program (“H-2A  program”) allows foreign nationals to enter into the U.S. to perform agricultural labor or services of a temporary or seasonal nature.  In order to employ foreign nationals under the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed and that use of foreign workers will not create an adverse effect on the wages or working conditions of similarly employed US workers.  The employer must also provide housing (if employee cannot reasonably commute from home), three meals a day, and transportation. 

Although similar to the H-2A program, the H-2B nonimmigrant visa program (“H-2B program”) allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. H-2B workers are frequently used to fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. Like the H-2A program, employers must prove that no qualified U.S. workers are available at the time and place needed.  Up to 66,000 H-2B visas are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half.  The employer must pay the employee’s transportation costs home if the employee is terminated early.  Unlike the H-2A program, H-2B program employers are NOT required to provide housing or meals for their H-2B workers. 

For more information about the H-2A or H-2B programs, please contact our offices.

Department of Homeland Security Secretary Janet Napolitano announced late this past Friday that she was designating Temporary Protected Status (“TPS”) for Haitian nationals who are unlawfully present in the U.S. as of January 12, 2010. 

In the January 15, 2010 statement released by Secretary Napolitano, she stated: 

“This is a disaster of historic proportions and this designation will allow eligible Haitian nationals in the United States to continue living and working in our country for the next 18 months. Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration’s continuing efforts to support Haiti’s recovery.”

For more information, please see our previous post on TPS.

In the wake of the devastating earthquake in Haiti, the U.S. Government has sent aid in the forms manpower, food, and water.  However, what is to be done with Haitian citizens who reside unlawfully in the U.S.?  Will they be sent back to Haiti?

For the time being, the answer is “no.”  On Wednesday, Homeland Security Secretary Janet Napolitano temporarily halted the removal (deportations) of Haitians with standing removal orders.  Those who do not have removal orders, but are detained in detention centers, will remain jailed. 

Since the earthquake on Tuesday, President Obama has been receiving increasing pressure from members of Congress and other special interest groups to grant Temporary Protected Status (“TPS”) those Haitians who are in the U.S. unlawfully.  This status is sometimes granted to countries when conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.

 In plain language, TPS allows eligible nationals who are in the U.S. unlawfully to remain and work in the U.S. until such a time as that their home country reaches a point that DHS determines will allow for a safe return. Currently, El Salvador, Honduras, Nicaragua, Somalia, and Sudan are designated by the Department of Homeland Security for TPS.

Many of us at Sands Anderson have made personal donations to help the earthquake victims.  We encourage everyone to consider doing the same, but please be careful who gets your money.  It is unfortunate, but many people will try to make a buck off this disaster.  Don’t be a victim of a scam. 

Here are some tips from the Better Business Bureau on how to vet charities asking for Haiti donations:

• Rely on expert opinion when it comes to evaluating a charity; not every blogger or web site has researched its recommendations.
• Be wary of claims that 100 percent of donations will assist relief victims.
• Be cautious when giving online, particularly if you receive an email asking for donations.
• Find out if the charity has an on-the-ground presence in the impacted areas.
• Find out if the charity is providing direct aid or raising money for other groups; it may make your dollars go further if you avoid the middleman.
• In-kind drives for food and clothing—while well intentioned— may not necessarily be the quickest way to help those in need – unless the organization has the staff and infrastructure to be able to properly distribute such aid.

In addition, be very careful in donating by text message. Before texting, go online and verify the number.

On December 15, 2009, U.S. Rep. Luis Gutierrez (Illinois) introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009.  Among many other provisions, CIR ASAP would repeal the 287(g) program only allowing the federal governments to enforce federal immigration law.

Section 287 (g) was added to the Immigration and Nationality Act by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996.  287(g) authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

Since its beginning, the 287(g) has been surrounded by a whirlwind of controversy with accusations of the program encouraging racial profiling.  Although many support the program, it has come under intense criticism more recently, with over 500 organizations, including the ACLU and the Congressional Hispanic Caucus, calling on the government to end the program.

So, what will happen with 287(g)?  Only time will tell.  It will at least have to wait until Immigration Reform hits Congress’ front burner.

According to the Department of Homeland Security (DHS), marriage fraud accounts for approximately 37% of illegal immigration.  Spouses of both U.S. Citizens and U.S. Permanent Residents are eligible, through slightly different processes with varying time frames, to become  U.S. Permanent Residents and eventual citizens. 

On October 6, 2009,  Sgt. Wesly Farris and Stephen Schneider pleaded guilty to marriage fraud in federal court in Greenville, North Carolina.  The two men, while soldiers at Fort Bragg military base in Fayetteville, North Carolina, married Russian women in 2005 and 2006, respectively, after meeting them through brothers Alexander “Sasha” Manin and Pavel “Pasha” Manin. 

The marriages took place in civil ceremonies on the same day that the men met the women.  After which, the women returned to New York while the men filed both the immigration paperwork necessary for the women to remain in the U.S. and the paperwork with the army to secure higher living allowances and off-post housing. 

Svetlana Kaloshina, wife of Farris, pleaded guilty in August to making a false statement on an immigration application and is out on bond awaiting sentencing. Tatyana Urazova, wife of Schneider, pleaded guilty Monday to conspiracy to commit marriage fraud. She remains in jail and will likely be removed (deported) after sentencing.

A third woman charged in the case, Anya Ivanova, was in a fraudulent marriage with a third Fort Bragg soldier, Jason Hawk, who was convicted at court-martial in February.  Jason Hawk was demoted from sergeant to private, paid a fine of $20,000 and served a fourth month sentence on post.  He was then discharged. Ms. Ivanova is currently a fugitive, and authorities believe she is in Canada.

Will further mechanisms to prevent marriage fraud be a big part of the inevitable immigration reform?

On September 23, 2009, Ms. Maria Refugia Camarillo, a 72-year-old grandmother, was sentenced to serve 44 months in federal prison for operating a marriage fraud ring from 1980s until 2008.  Ms. Camarillo had been investigated by U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), the Social Security Administration’s Office of Inspector General (SSA OIG), Texas’ Health and Human Services Commission’s Office of Inspector General (HHSC OIG), and the Department of Homeland Security’s Office of Inspector General (DHS OIG).

For years, foreign nationals who wanted to become U.S. permanent residents (green card holders), paid Ms. Camarillo as much as $12,000 to arrange marriages between them and U.S. Citizens.  The foreign nationals then used their marriage to a U.S. citizen as basis for obtaining U.S. permanent residency and often citizenship. 

Ms. Camarillo recruited her children, grandchildren, nieces, and nephews (all U.S. citizens) into the conspiracy.  Each was paid a portion of Camarillo’s $12,000 fee for agreeing to marry foreign nationals.

On September 8, 2009, the Department of Homeland Security’s (DHS) rule mandating E-Verify use by certain federal contractors and subcontractors became effective. The E-Verify program, a partnership of the DHS and the Social Security Administration (SSA), is an internet-based system that allows employers to electronically verify the employment eligibility of newly hired employees, regardless of citizenship. 

The new rule is applicable to Federal contractors and subcontractors who are awarded a contract, on or after September 8, 2009, which contains the Federal Acquisition Regulation (FAR) E-verify clause.  These employers must enroll and begin using the E-verify program within 30 days of the contract award date. 

Although there has been controversy surrounding the E-Verify program, the program is voluntarily used by many employers in an attempt to minimize liability.  As of July 2009, USCIS reports that more than 148,000 employers used E-Verify to electronically verify their workers’ employment eligibility. 

For more information on the E-Verify program, please contact our offices.

Today, August, 6, 2009, U.S. Immigration and Customs Enforcement (“ICE”) has announced an overhaul of the current immigration detention system.  Currently, when foreign nationals are arrested for immigration violations or other offenses that affect their immigration status, they are detained in one of over 350 decentralized, penal institutions.  The institutions are either jails operated by local governments or privatized detention centers.

Over the past several years, there have reports of insufficient medical care and poor treatment of foreign nationals held by ICE.  Earlier this year, the NY Times published an article about a computer engineer from China who died from a lack of proper medical care while he was detained in a contracted detention center in Rhode Island. 

So, what will the new overhaul include?  According to John Morton, Assistant Secretary of ICE, the next three to five years will bring facilities located and operated solely for immigration detention purposes.  These facilities will be run by ICE and, according to Assistant Secretary Morton, will address many of the issues regarding oversight and medical care. 

What will the cost be?  Will it cost more or less than contracting with public and private facilities?  The data isn’t in or at least it hasn’t been yet.

U.S. Immigration and Customs Enforcement (‘ICE’) has launched a new effort to audit the Form I-9 employment eligibility verification records of businesses nationwide.  According to the Los Angeles Times, ICE  issued audit notices to more than 650 businesses around the nation on July 1, 2009. 

The I-9 system of employment verification, created by the Immigration Reform and Control Act of 1986, is the nation’s sole mandatory employment eligibility verification program. All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including citizens and non-citizens.

This newest enforcement effort by ICE follows a recent Department of Homeland Security (DHS) announcement that ICE will focus its resources on criminal prosecution of employers who knowingly hire illegal workers and that the agency “will use all available tools, including civil fines and debarment, to penalize and deter illegal employment.” 

“Knowingly hiring” can be a tricky legal concept.  Employers can also be held liable if they had “constructive knowledge”  that a worker wasn’t eligible for employment.  Constructive knowledge means that the employer “should have known.”  Constructive knowledge has been found where employers did not complete I-9 forms or completed I-9 forms incorrectly. 

Many errors on forms result from inadvertent mistakes pertaining to preparation, storage, and retention that can result in civil fines, and even criminal charges.  Civil fines for employers can range from $3200 (per violation) for a first offense to $16,000 (per violation)  for a third or subsequent offense.  All company representatives verifying employment eligibility of employees are potentially liable, both criminally and civilly, for errors in completing I-9 Forms. 

So what can U.S. businesses do to mitigate exposure stemming from their I-9 programs?  It is imperative, now more than ever, that employers implement I-9 Compliance Plans that include proper training, internal audits, and third-party audits.  The voluntary E-Verify program (formerly the Basic Pilot/Employment Eligibility Verification Program), an online system operated jointly by the Department of Homeland Security and the Social Security Administration (SSA), also provides employers with a “safer harbor” within which to operate.

The Department of Homeland Security announced on June 3, 2009 that the effective date of the new rule mandating E-Verify use by certain federal contractors and subcontractors has been delayed again.  After several delays, the effective date is now scheduled for September 8, 2009.  The rule will only affect federal contractors who are awarded a new contract after May 21, 2009 that includes the Federal Acquisition Regulation (FAR) E-Verify clause (73 FR 67704).

As of September 2008, 31,000 employers have voluntarily enrolled in the program. On June 6, 2008, President Bush issued Executive Order 13465 “Economy and Efficiency in Government Procurement through Compliance with Certain Immigration and Nationality Act Provisions and the Use of an Electronic Employment Eligibility Verification System,” This Executive order provides that “executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the federal contract.” 

The final rule was to be effective as of January 15, 2009.  However, as mentioned above, the effective date of the new rule has been delayed several times and will now be effective September 8, 2009. 

All employers, whether Federal Contractors or not, may enroll for E-Verify online at www.dhs.gov/E-Verify.