DOJ Gives Penalties for Immigration-Related Offenses a Hefty Hike This Month

As of August 2016, fines have been inflated 35 to 96 percent for employers found to have violated rules regarding hiring of workers without authorization and Form I-9 violations. Previously, fines for “first offenders” employing unauthorized workers in the first instance ranged from $375 to $3,200 per unauthorized worker. The penalty now ranges from $539 to $4,313. Penalties for repeat offenders formerly ranged from $4,300 to $16,000, but will now range from $6,469 to $21,563.

Fines for Form I-9 paperwork violations have been hiked by an even larger percentage: fines for initial offenders previously ranged from $110 to $1,100 per violation, but have been doubled to $216 to $2,156 per violation. This change dramatically increases the financial risk of noncompliance in executing and maintaining Forms I-9 for employers. Internal audits of your I-9 records and increased training for staff responsible for recruitment, on-boarding new employees, and records maintenance are critical to reducing your organization’s exposure to such risk.

STEM OPT: Transition Period for Additional 7-month extension expired on August 8, 2016

On May 10, 2016, the DHS adopted a new STEM OPT regulation that would permit certain STEM graduates meeting appropriate criteria to extend their 1-year OPT for an additional 2 years. This rule replaced a prior regulation that provided OPT STEM graduates with a 17-month extension, while imposing substantial new responsibilities on U.S. employers hiring these workers to ensure that such employment is consistent with the underlying mentorship and training goals of OPT. In transitioning to this new rule, DHS permitted beneficiaries of the 17-month program meeting specific guidelines to extend their OPT for an additional 7 months. The transitional period for requesting such an extension ended as of August 8, 2016. Additionally, any STEM OPT extension requests that remained pending on May 10, 2016, were automatically converted to a 24-month OPT extension request and resulted in the issuance of Requests for Evidence (RFEs) to demonstrate compliance with these new guidelines. For more information about the new STEM OPT rules, please view our on-demand webinar on this topic.

Employers Beware: Failure to Notify USCIS About Terminated Employees Can Cost Back Wages

A Department of Labor judge last week ordered an employer, ME Global Inc., to pay an engineer almost $183,000 in back wages due to its failure to notify U.S. Citizenship and Immigration Services (USCIS) of the worker’s termination in 2008. Employers sponsoring foreign workers under the H-1B program are obligated to notify USCIS of an H-1B worker’s termination and request to withdraw the visa. Proper withdrawal of the visa would not result in the employer’s liability for wages after the termination, but the employer may be liable to pay for the cost of the foreign worker’s return trip to his or her home country, in some circumstances. However, ME Global Inc. did not withdraw the visa or pay for the worker’s return abroad; it was therefore ordered to pay the terminated worker wages from his termination date in September 2008 through the date he departed the U.S. in June 2011. H-1B sponsoring employers should take note that the resulting order to pay back wages could have been prevented by a simple letter to USCIS.

State Department Reveals Authority to Revoke a Visa for DUI Arrests

The Department of State (DOS) made public unclassified Foreign Affairs Manual (FAM) content this past Spring that effectively announced the expansion of DOS adjudicators’ ability to revoke visas based on derogatory evidence that does not amount to a showing of inadmissibility by final arrest disposition or admission of unlawful activity by the visa holder. Specifically, the DOS now may revoke visas under its “prudential visa revocation” policy based upon notification of arrest records for violations including DUI.

The DOS “prudential visa revocation” policy states that the agency has the authority to revoke a visa after it is issued where derogatory information is discovered through international shared databases. Pursuant to updated FAM guidance, a notification of a DUI arrest, even one made by mistake or leading to no charges or convictions, is now sufficient to invoke this policy and give rise to a DOS investigation or revocation.

In a meeting with liaison members of the American Immigration Lawyers Association, the DOS explained that the change in policy is based on the agency’s considering a DUI arrest as potentially indicative of visa ineligibility based upon “physical or mental disorder,” and furthermore that it takes DUI arrests very seriously as a public safety concern. The DOS confirmed that arrests under other offenses (although unspecified), without charges or convictions, could also be cause for visa revocation.

Generally, in order to find someone inadmissible for a visa or admission based on a DUI arrest, there must be some admission of the act or conviction record. However, because a prudential visa revocation is not considered to be a finding of inadmissibility, the DOS has a much lower burden of proof to meet in order to revoke a visa and is not required to wait for such additional information.

The purpose of prudential visa revocation is to allow the visa holder to present his or herself to the consular officer again to again demonstrate eligibility for the visa by contradicting the derogatory information with other evidence. The DOS told AILA liaison that it is sending a uniform notification form to foreign nationals subject to prudential visa revocation, explaining that they remain in lawful status in the U.S. through their period of admission. However, many have reported being contacted by consular posts and instructed to depart the U.S. immediately to meet with the U.S. consulate abroad. This is particularly disconcerting, as it creates many additional risks for foreign nationals who get incorrect information. For example, a person who departs the country may be unable to return. If they have recently been arrested, departing the country may cause them to miss important legal hearings or other obligations required in order to resolve the arrest, ultimately leading to further legal problems for that individual. Also, employers or schools may be unclear about the implications of a notice of visa revocation in terms of sponsored foreign workers and students, which can lead to wrongful termination and resulting violation of status.

In order to avoid wrongful termination, disruption of status, or other unfortunately potential issues, parties receiving any notification of visa revocation should consult with legal counsel to seek advice regarding the reason for the revocation, what action is required, and how it could impact future applications for any sort of immigration benefit you may plan to seek.

DOJ Seeks Options for Substantive Court Decision on Executive Action Reforms in U.S. v. Texas

Invoking a rarely used procedure, the Department of Justice in July moved for rehearing of the Supreme Court’s split decision in U.S. vs. Texas before a full, nine-Justice Supreme Court. By way of background, on June 23 of this year, a divided Supreme Court affirmed an injunction imposed by a federal district court in Texas and subsequently upheld by the U.S. Court of Appeals for the Fifth Circuit on President Obama’s “DACA” and “DAPA” executive action programs. The petition for rehearing cites the nationwide significance of this matter and the limited likelihood that the issue will be heard before the U.S. Supreme Court again. The petition cites several prior instances where the Supreme Court has granted rehearing of matters decided during a judicial vacancy once the vacancy has been filled.

If rehearing is granted, it is likely that the Supreme Court would hold oral arguments in 2017 and issue a decision next summer, presumably after a new Supreme Court Justice has been nominated and confirmed. A grant of rehearing would ensure also that the issue of immigration, which is likely to be a hot-button topic during this year’s Presidential election, will remain front and center through next year.