CgeorgeOver the last few months, I’ve had a few opportunities to use my legal background to help shed some light on refugee resettlement.

Back in February, I helped Connecticut lawyers introduce and sponsor a resolution at the American Bar Association Midyear Meeting calling for Congress to provide legal protections and sufficient funding for refugee resettlement.

And yesterday, I (along with many others within my firm, including my colleagues Brenda Eckert and Ashley Marshall) helped produce a program at my lawfirm on the issue. At various times during the year, we sponsor an “In Community” program that sheds light on issues impacting Connecticut.  The program yesterday focused on “Refugees and Resettlement: The Process and Protection Under the Law”.  My thanks to my firm for their leadership on this issue.

Among the speakers were Chris George, Executive Director, Integrated Refugee & Immigrant Services (IRIS) (pictured) and Kimberly May-Bailey, MSM, Director of Migration, Refugee and Immigration Services, Catholic Charities, Archdiocese of Hartford.

The work that they are doing in Connecticut to help assist refugees who relocate to Connecticut is nothing short of amazing and my thanks also to them to sharing the story of their work for us.

One of the interesting aspects to come out of the discussion was that fact that refugees are expected to become self-sufficient pretty quickly upon arrival.  To make that transition happen, the U.S. Government actually allows refugees to start work legally in the United States immediately upon arrival.  As the government tells refugees:

As a refugee, you may work immediately upon arrival to the United States. When you are admitted to the United States you will receive a Form I-94 containing a refugee admission stamp.  Additionally, a Form I-765, Application for Employment Authorization, will be filed for you in order for you to receive an Employment Authorization Document (EAD). While you are waiting for your EAD, you can present your Form I-94, Arrival-Departure Record, to your employer as proof of your permission to work in the United States.

For employers looking to help refugees, this is welcome news. Sometimes, employers may worry whether foreign nationals have sufficient documentation to allow them to work in the United States. With refugees, it’s clear from the outset that the answer is yes.

If you are willing to help, please contact IRIS or Catholic Charities.  There is always a need to help refugees.  As Chris George reminded us at the presentation, the Statute of Liberty reminds that that we take the tired and the poor and today’s refugees are among the most vulnerable we have in society.  Making sure that they can find work is one way to ensure that they can have a life to be proud of in the United States.

Part of an employer’s job is to review I-9 documentation at the start of employment, including Green Cards. But for employers, knowing what is real vs. fake, can be an issue.  My colleagues have prepared this update to one form of documentation that you should be on the lookout for.  The change is happening sooner than you might think.  

Understanding USERRA

U.S. Citizenship and Immigration Services (USCIS) just announced a redesign to the Permanent Resident Card, commonly known as the Green Card, and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. Although USCIS will begin issuing the new cards on May 1, 2017, both existing and new cards will be valid until their expiration date.

The new designs use enhanced graphics and fraud-resistant security features so that the resulting cards are more tamper-resistant and secure than those currently in use.  The new card designs demonstrate USCIS’ commitment to continue taking active measures to reduce the threat of document tampering and fraud. They are also part of an ongoing collaborative effort among USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will display the individual’s photo on both sides. In addition, there will be unique graphic images and color palettes (Green Cards will bear an image of the Statue of Liberty on a predominantly green palette and EAD cards will display an image of a bald eagle on a predominantly red palette).  Each will have embedded holographic images and neither will display the individual’s signature anymore. Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017 may still display the existing design format, as USCIS will continue using existing stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date at all–these dateless ones will remain valid. Individuals who have Green Cards without an expiration date, however, may want to consider applying for a replacement card bearing an expiration date, so as to reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

So did everyone enjoy Thanksgiving? I’m still recovering from my vacation so in the meantime, my colleagues, Brenda Eckert and Ashley Mendoza, return today with a post about updated I-9 forms that all employers MUST start using in January 2017.  If you do any hiring, this post ought to be front and center to fulfill your obligations. 

eckertashleymendoza1On November 14, 2016, United States Citizenship and Immigration Services (“USCIS”) published a revised version of Form I-9, Employment Eligibility Verification (“Form I-9”).  This isn’t the first time it has done so but a new set of revisions means more changes for employers.

Established by the Immigration Reform and Control Act (“IRCA”), Form I-9 is used to verify the identity and employment authorization of all individuals, including U.S. citizens, hired for employment in the United States. All U.S. employers, regardless of size, must ensure proper completion and retention of Form I-9 for each new employee hired after November 6, 1986.

Beginning on January 22, 2017, employers must only use the revised Form I-9 version dated November 14, 2016. USCIS has allowed a grace period through January 21, 2017 when employers may continue to use the Form I-9 version dated March 8, 2013.  Both the revised Form I-9 and the prior version may be found on USCIS’ website.

Generally, the revisions made to Form I-9 were designed to make it more user-friendly, to reduce errors and to enhance form completion using a computer. Some of the most notable changes include:

  • Informational prompts are included on the form;
  • Employees only need to provide “other last names used” in Section 1, Employee Information and Attestation, rather than all “other names used”;
  • The employee certification in Section 1 is streamlined for certain foreign nationals;
  • There is an addendum page to enter multiple preparers and translators, when applicable; and
  • In Section 2, Employer or Authorized Representative Review and Verification, there is a dedicated area to enter additional information that employers have previously been required to notate in the margins of the form.

Further enhancements were made to the Form I-9 that will appear when completing it electronically on a computer. Users will see:

  • Checks to certain fields to ensure information is entered correctly;
  • Drop-down lists and calendars;
  • Instructions on the screen that users can access to complete each field; and
  • Buttons that will allow users to access the instructions electronically, print the form, and clear the form to start over.

The Form I-9 instructions have been updated to include a field-by-field guide to completion, and to address common issues that arise during completion. The revised instructions have also been separated into a distinct document from the revised Form I-9, in line with USCIS’ general practice.

While USCIS has indicated it will soon issue a revised M-274, Handbook for Employers, Guidance for Completing Form I-9, it has yet to do so. In the meantime, USCIS refers users to the revised Form I-9 instructions, found on its website for the most up-to-date information.

Notably, the list of acceptable documents that the employee may present in order to establish identity and employment authorization remains the same. 

While the Form I-9 may seem relatively straightforward to employers, its completion can be complex and the rules surrounding it constantly evolve, which leads to large fines and other penalties for not completing and retaining the forms correctly.

For this reason, we recommend reaching out to an experienced immigration attorney when questions arise regarding the Form I-9.

ashleymendoza1alfredoMy colleagues, Ashley Mendoza and Alfredo Fernandez, return today for a guest post today that shows that employment law issues can sometimes present themselves in different formats.  My thanks to the both of them in presenting a fairly advanced topic in a form that will hopefully be of interest to a few of you out there.

Imagine your company has employed a research scientist to support your technology programs.  The scientist is a citizen of the People’s Republic of China and holds an H-1B visa, but is not authorized to view certain export-controlled technical data.  Unclear of the restrictions in place, other company employees provide the foreign scientist with technical data related to a military program in the course of his job duties.  This real life scenario recently resulted in a $100,000 settlement penalty with the U.S. State Department this summer.

It appears that a company policy to screen out foreign candidates for job openings of this sensitive nature would have prevented this violation and penalty, but a company also faces the challenge of avoiding discrimination in its hiring practices.  Is this a lose-lose scenario?  Not quite, but companies must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.

The Tricky Intersection of Legal Obligations

On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.

These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios.   The OSC’s recent guidance and upcoming definitional changes within the export control laws do provide some general direction for employers; however several ambiguous issues remain unresolved.

IMG_7083What We Know About the Export Regulations in this Context

Exports are commonly associated with the shipment of a tangible item to a foreign country, but the U.S. export regulations have a much broader application.  An export also includes the transfer of controlled technical data or technology to foreign persons, even when the transfer takes place within the geographic territory of the United States.  Such a transfer is “deemed” to be an export to the country of the foreign person and is referred to as a “deemed export.”

Although not the only federal agencies administering export control laws, the U.S. State and Commerce Departments manage the two broadest export control systems.  The U.S. State Department’s Directorate of Defense Trade Controls administers the International Traffic in Arms Regulations (“ITAR”), found at 22 C.F.R. §§ 120-130, which control defense articles and services.  The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) administers the Export Administration Regulations (“EAR”), found at 15 C.F.R. §§ 730-774, which control commercial and dual-use items,  as well as limited low-sensitivity military items.  Generally speaking, all articles controlled under the ITAR and many articles controlled under the EAR require an export license before the export, including a deemed export, occurs.

Each set of regulations accounts for deemed exports but have slightly different definitions of key terms.  In fact, new and revised definitions under both regulations become effective September 1, 2016.  One primary intention of the definitional changes is to better harmonize the analogous definitions in both systems. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) or to persons who are protected individuals under the Immigration and Nationality Act (“INA”)(e.g., certain refugees and asylees).

The below table showcases a few of the new definitions, including the improved harmonization for key terms such as export and release. Continue Reading How to Avoid Discrimination in Hiring, While Complying with Export Laws

ashleymendoza1eckertToday, I’m delighted to bring you what I hope will be the first of several updates for employers from the immigration law perspective.  One of my newest colleagues, Ashley Mendoza, along with my law partner Brenda Eckert, have been tracking some of the newest rules for employers coming out of the Department of Homeland Security.  These rules will have a particular impact to employers who recruit from the STEM (science, technology, engineering, and math) areas.  For employers that rely on foreign workers to help supplement their ranks, this is crucial to understand.

But a cautionary note: It’s a bit technical. There’s really no way around that. Immigration laws are just filled with technical requirements. Indeed, that’s one reason why a qualified immigration lawyer is often needed to help employers navigate these rules. Brenda and Ashley are leading the way here at my firm and I thank them for this detailed update.

Yesterday (May 10, 2016), the U.S. Department of Homeland Security (“DHS”) implemented major modifications to Optional Practical Training (“OPT”) extensions for students on F-1 visas enrolled in science, technology, engineering, and mathematics (“STEM”) degree programs.

IMG_7083The new regulations, published at 8 CFR Parts 214.2(f) and 274a, authorize a 24-month STEM OPT extension period, replacing the previous 17-month STEM OPT extension period.

While at first glance, the new STEM OPT extension regulations may seem a cause for celebration, there are a number of added requirements and oversight provisions and, for some U.S. employers, the benefits may not outweigh the burdens.

What is OPT?

OPT is a form of temporary employment available to students holding F-1 visas that directly relates to a student’s program of study. The employment is often paid, and may take place during and/or after completion of the degree program.

The overarching idea is that OPT will afford eligible international students and new graduates the opportunity to gain hands-on practical experience to supplement what they learned during their degree program. Students may be authorized for a total of 12 months of full-time OPT at each educational level (e.g., undergraduate, graduate and post-graduate).

The application process is relatively straight forward. The student must first request approval from his or her designated school official (“DSO”), who will then make a recommendation to the electronic Student and Exchange Visitor and Information System (“SEVIS”) by endorsing a Form I-20.

Thereafter, the student must file the Form I-765, Application for Employment Authorization, supporting documentation, and a filing fee of $380.00 with the U.S. Citizenship and Immigration Services (“USCIS”).

The extension & the changes to it

Since 2008, eligible students who graduate with a qualified STEM degree and are presently engaged in a period of approved post-completion OPT may have the option to extend their OPT for a period of 17 months.

This is the existing STEM OPT extension, and this is what the new regulations modify. These changes will affect all parties involved in the STEM OPT extension process. This includes the students and the U.S. employers with whom the students will train during the course of the approved period of STEM OPT.

Not to be forgotten, however, are the DSO’s who perform pivotal work with students behind-the-scenes to recommend them for OPT and extensions and maintain student records in SEVIS.

So, what’s new?

The better question, really, is what isn’t new.

The new regulations provide a comprehensive overhaul to the STEM OPT program.

Continue Reading Major Modifications to Immigration Programs May Cause Major Headaches

Well, so much for a slow legislative session. New proposals keep popping up with changes big and small for employers.

The latest was reported on by the CBIA in a post entitled “Double Trouble for Businesses?” and talks about Senate Bill 106, which you can download here.

The bill purports to protect immigrants, but as noted by the CBIA, a good portion of it is preempted by federal law.  It would create a new class of discrimination and retaliation complaints entitled “unfair immigration-related practice” that would allow employees to file claims for a variety of reasons, including if an employer “contacted” immigration authorities.

But perhaps most concerning relating to these new immigration-related claims is a presumption that an employer has retaliated against an employee if any action occurs within 90 days of the employee “exercising” his or her rights.  That would create a whole new class of retaliation claims far beyond what even the courts have been willing to do.

Despite its label as a immigration-related bill, the proposal would also amend the state’s wage & hour rules to remove “a judge’s discretion to award less than double damages in a civil action to collect unpaid regular and overtime wages.”

The CBIA notes:

What is gained by mandating double damages when a judge already has the power to impose the penalty on truly bad-acting employers?

Could the answer be that it is to make the penalty so harsh that employers would be forced to settle wage disputes every time, even when the employer believes they did nothing wrong?

If the business doesn’t cut its losses and settle, even when in the right, the only other option is to undergo the expense of defending themselves through costly litigation. In other words, even when the employer is right, they lose.

Hard to argue with the CBIA on this point.  Wage & hour complaints have been one of the biggest areas of growth in employment law in the last decade and are outstripping all other class actions.

Again, it seems like a solution in search of a problem. Stay tuned.

 

 

 

Late Friday, you might have (ok, I’m sure you did) missed a press release from the United States Department of Justice announcing a settlement with a staffing agency in California.

The charge? That a staffing company “discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).”

Now, I’m sure you all know (ok, I’m sure a few of you don’t know), that after an offer of employment is made, employers must require the to-be-hired individuals to present documentation to verify their eligibility to work in the United States.

But the DOJ charged that the “company’s staff required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents during the employment eligibility verification process to establish their work authority. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the employment eligibility verification process based on their citizenship status or national origin.”

I’ve previously discussed the I-9 form in some prior posts.  But in essence, employers need to use consistent practices at the start of employment.

The staffing agency is learning this issue the hard way:  Under the settlement agreement, the company “will pay $230,000 in civil penalties to the United States, create a $35,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices and undergo training on the anti-discrimination provision of the INA.”  Oh, and the agency will be subject to government monitoring and reporting requirements for three years.

Employers have a lot to worry about when hiring new employees.  Add consistent treatment of new hires to the list.

The Connecticut Law Tribune’s quarterly supplement on Labor & Employment Law was published this week and as usual, it is chock full of articles of relevance to attorneys and employers. 

Many of the topics have been covered here in the blog, but the additional analysis and discussion on the topics make them useful.  You can view a list of all of them here, but I’ll highlight a few. 

  • As a reminder, new I-9 forms are now in place as of earlier this month. These forms should be used for all new hires.  As the article emphasizes: “The federal government’s recent shift in immigration enforcement away from workplace encounters with employees to rigorous review of employer paperwork turns a seemingly mundane form revision into rather significant news. Employers must exercise the utmost care in completing the forms lest they expose themselves to civil or criminal liability. ” 
  • Another article sees a growing trend of workplace surveillance videos.  But the article also reminds employers that “Connecticut law prohibits employers from using electronic surveillance devices to record or monitor employees’ activities in areas designed for health, personal comfort or safeguarding employees’ possessions, such as restrooms, locker rooms or lounges.”   I’ve discussed monitoring of employees in various posts, most recently here. 
  • Free speech claims are a topic I’ve covered here extensively. One of the articles looks at whether the Connecticut Constitution afford employees any more protection than the federal counterpart.  It highlights a Superior Court case from earlier this year that rejected that argument. 

Other articles tackle subjects such as who is a full-time employee under the new healthcare mandate and immigration law changes. It’s worth taking a look.

With all the snow piling up, there’s been a lot I’ve been meaning to get to but haven’t. So, it’s time to bring back the "Quick Hits" feature where I recap some of the employment law tidbits you might have missed recently.

Now, excuse me while I go find some dog sleds so we can get to work in this snow! 

In a last minute notice and delay, United States Citizenship and Immigration Services announced that it is postponing, until April 3, 2009, the implementation of a new I-9 form and a revised list of acceptable documents to determine employment eligibility.  (For background, you can find my most recent post on the form here.)

The new forms were to go into effect today, February 2, 2009. Instead, it has instructed employers to continue to abide by the old rule and use the old form.

USCIS released a press release late last week in which it indicated that it was reopening the public comment period for 30 days. You can find the release here