Cross-border and Immigration

Important updates in the area of US immigration law during May 2013.

Employers are reminded that the new I-9 Form is required beginning on May 7, 2013. The new Form I-9, published by US Citizenship and Immigration Services (USCIS) on March 8, 2013, replaces all prior versions.

US Customs and Border Protection (CBP), an agency in the Department of Homeland Security (DHS), issued an interim final rule changing the definition of the term "Form I-94" to include an electronic as well as a paper format. The revisions will allow CBP to create an electronic version of the Form I-94 Arrival-Departure Record and transition to an automated Form I-94 process.

US Citizenship and Immigration Services (USCIS) has announced that premium processing for cap-subject H-1B petitions will begin on April 15, 2013. This temporary adjustment has been made to accommodate the historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the H-1B filing period.

In Lamonica v. Safe Hurricane Shutters, Inc., the US Court of Appeals for the Eleventh Circuit held that undocumented foreign workers are employees who may recover unpaid wages under the Fair Labor Standards Act (FLSA). The court found that the US Supreme Court's prior decision in Hoffman Plastic Compounds, Inc. v. NLRB that the National Labor Relations Board (NLRB) could not award backpay to undocumented aliens terminated for union activity in violation of the National Labor Relations Act (NLRA) did not overrule Eleventh Circuit precedent permitting recovery of unpaid wages under the FLSA.

Resources to assist employers filing H-1B petitions for foreign national workers.

The Department of Labor (DOL) announced a new online tool, the iCERT Labor Certification Registry, that will provide the public with real-time access to redacted documents in the H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification (PERM) employment-based immigration programs beginning July 1, 2013.

The US and Canadian governments have signed a Visa and Immigration Information-Sharing Agreement. Pursuant to the Agreement, both countries will share biographical and biometric information on third country nationals who apply for visas or permission to travel to either country.

Important updates in the area of US immigration law during November 2012.

This Law Firm Publication by Jackson Lewis LLP discusses the Tennessee Lawful Employment Act (TLEA), which went into effect in January of 2012 and which the Tennessee Department of Labor has just recently begun to enforce. Under the TLEA, employers with more than six employees must either use E-Verify or make and retain copies of one of 11 specified documents. Private employers with 500 or more employees were required to comply with the TLEA as of January 1, 2012, and those with between 200 and 499 employees were required to comply as of July 1, 2012. Employers with between six and 199 employees must be in compliance by January 1, 2013. In determining the number of employees, an employer must count all of its employees, not just those that are physically in Tennessee.

President Obama signed into law S. 3245, which reauthorizes the E-Verify program, the EB-5 Regional Center Program, the Special Immigrant Nonminister Religious Worker Program and the Conrad State 30 J-1 Visa Waiver Program until September 30, 2015.

This Law Firm Publication by Ogletree, Deakins, Nash, Smoak & Stewart, P.C. discusses North Carolina's E-Verify Legislation, which was signed into law on June 23, 2011. While counties and municipalities were required to participate in the E-Verify program last year, private sector employers will begin their participation on October 1, 2012, starting with employers with 500 or more employees in North Carolina. Employers with at least 100 but fewer than 500 employees must use E-Verify as of January 1, 2013, and employers with at least 25 but fewer than 100 employees must comply by July 1, 2013.

Important updates in the area of US immigration law during August 2012.

US Citizenship and Immigration Services (USCIS) released application forms and information on the filing process for the young undocumented immigrant deferred action program announced in June 2012.

Important updates in the area of US immigration law during July 2012.

In Paidi v. Mills, the US Court of Appeals for the Second Circuit struck down as unconstitutional a New York law that prevents nonimmigrant aliens from receiving pharmacist licenses. The Second Circuit held that the law violated the Equal Protection Clause because aliens are a suspect class and the state could not distinguish lawful nonimmigrant aliens from other aliens.

Important updates in the area of US immigration law during June 2012.

The United States Citizenship and Immigration Services (USCIS) has announced that as of June 11, 2012, it had received a sufficient number of new H-1B visa specialty occupation petitions to reach the statutory cap for fiscal year 2013. In addition, as of June 7, 2012, the advanced degree exemption has been exhausted.

The Administrative Appeals Office (AAO) of the US Citizenship and Immigration Services (USCIS) held in Matter of Skirball Cultural Center that the term "culturally unique," as used in P-3 nonimmigrant visa petitions, is not limited to traditional art forms and may include hybrid or fusion artistic expression.

On May 4, 2012, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued a guidance memorandum explaining that, under the NLRB's recent decision in Flaum Appetizing Corp., employers may not reverify emploment status of employees who are reinstated.    

The Department of Homeland Security (DHS) designated Syria for temporary protected status (TPS) for a period of 18 months ending on September 30, 2013. TPS beneficiaries are eligible to remain in the US and to request employment authorization documents that can be used to satisfy employment eligibility requirements.

The US Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions toward the 2013 Fiscal Year (FY) cap on April 2, 2012. The number of H-1B petitions for FY 2013 is capped by Congress at 65,000, subject to several exemptions.

The US Court of Appeals for the Eleventh Circuit enjoined the enforcement of another two provisions of H.B. 56, Alabama's 2011 immigration law. The enjoined provisions bar residents from knowingly entering into contracts with illegal immigrants and ban illegal immigrants from entering business transactions with state and local governments. Several other provisions remain in effect, pending a full resolution of the appeal by an Eleventh Circuit panel.

On February 21, 2012, the Department of Labor published new regulations governing the H-2B visa program for workers performing temporary or seasonal non-agricultural labor or services. These regulations replace the 2009 regulations, and they provide more protections for US workers and H-2B workers, add more requirements for employers to follow, and enhance oversight and enforcement of the H-2B program.  The new regulations are effective April 23, 2012.

On January 31, 2012, the US Department of Homeland Security (DHS) announced a series of administrative reforms it will undertake to attract and retain highly skilled immigrants to stimulate US job creation.

In Flaum Appetizing Corp. the National Labor Relations Board (NLRB) determined that employers found to have discriminated against employees that engaged in concerted activity protected under the National Labor Relations Act (NLRA) must plead specifically and be prepared to offer evidence that a discriminatee is not authorized to work in the US, to challenge a back pay or reinstatement award under Hoffman Plastic Compounds, Inc. v. NLRB. In its decision dated December 30, 2011, the NLRB constructed procedural barriers for employers wishing to avail themselves of that Supreme Court precedent, which held that the NLRB is prohibited from awarding backpay to an undocumented worker who violates the Immigration Reform and Control Act (IRCA). The NLRB struck an employer's Hoffman-related affirmative defense in NLRB compliance proceedings and denied the employer an evidentiary hearing to confirm that discriminatees were not eligible for backpay based on their immigration status. Member Hayes dissented.

The United States Citizenship and Immigration Services (USCIS) has announced that as of November 22, 2011, it had received a sufficient number of new H-1B visa specialty occupation petitions to reach the statutory cap for fiscal year 2012. In addition, as of October 19, 2011, the advanced degree exemption has been exhausted.

On October 20, 2011, the United States Citizenship and Immigration Services (USCIS) reversed its September 12, 2011 policy change, and announced that it would return to mailing original notices for immigration petitions and applications directly to attorneys and representatives if  the petitioner or applicant has authorized the representation.

This Ford & Harrison, LLP memorandum covers California's recent enaction of The Employment Acceleration Act of 2011. The new law prohibits California state and local governments from requiring employers to use the federal E-Verify program to check the employment eligibility of new employees. Despite the new law, California employers must continue to comply with the federal Employment Eligibility Verification (form I-9) process as well as the federal E-Verify requirements for federal contractors. Employers are also free to use the E-Verify program voluntarily.

This Ogletree, Deakins, Nash, Smoak & Stewart, P.C. memorandum discusses the US District Court of the Northern District of Alabama's ruling on Alabama's controversial immigration law. The court held that several provisions could not be enforced pending a final judgment on the law's constitutionality. However, the ruling does not affect the provision requiring Alabama employers to use the federal E-Verify program to confirm an applicant's legal immigration status.

In Limanseto v. Ganze & Company, the DOL held that an employer has to pay back wages to a former H-1B employee because it did not terminate the employee according to the requirements of the H-1B program. Specifically, the employer never offered to pay the cost of the employee's return trip.