The Fine Line
Employers’ internal policies and training programs are more important than ever as employers
increasingly find themselves squeezed between enhanced Form I-9 compliance enforcement
initiatives by Immigration and Customs Enforcement (ICE) on one side and Department of Justice
hiring discrimination enforcement on the other.
After auditing ICE, the Acting Assistant Inspector
General for Audits for the Department of
Homeland Security’s Office of the Inspector
General (www.oig.dhs.gov), Mark Bell, made
three recommendations for improving ICE’s
implementation of its worksite enforcement
strategy. ICE is the DHS agency responsible
for implementing this strategy and protecting
employment opportunities for the nation’s
One of President Barack Obama’s first official
acts was to revamp ICE’s worksite enforcement
strategy to give priority to identifying employers
who knowingly hire illegal workers and to use all
available civil and administrative tools to penalize and deter illegal employment.
From fiscal years 2009 through 2012, Congress
allocated about $531 million to fund and implement this strategy. Over that same period, ICE
conducted 9,140 administrative I-9 inspections,
issuing about $31.2 million in civil fines to employers.
According to the Acting Assistant Inspector
General, ICE should:
#1: Enforce its oversight procedures to ensure
consistent application of the worksite
enforcement strategy administrative
inspection process nationwide.
#2: Develop a process to evaluate the effectiveness of the administrative inspection process
and modify the process based on the
#3: Direct Homeland Security Investigations field
offices to provide consistent, accurate, and
timely reporting of information on worksite
Although Mr. Bell’s audit concluded ICE’s I-9
inspection process met the requirements of the
Immigration and Nationality Act, he determined
the agency failed to monitor or evaluate adequately the performance or outcomes of the
process among its field offices. He also found
the Homeland Security Investigations’ headquarters did not adequately oversee the offices
to ensure they were consistent in issuing warnings and fines (finding some issued significantly
more warnings than fines, and some field offices
negotiated fines with employers — significantly
reducing the amount — while others did not).
Employers should anticipate more fines, instead
of warnings, from ICE. There also is expected to
be less interest in reducing these assessments
and more activity in regions that tended to
have fewer inspections. The number of inspections also may increase overall. ICE likely will
redouble efforts in monitoring field office
activity, encouraging offices to conduct
inspections in a more consistent fashion,
and encouraging more precision in the internal
deliberation supporting a fine assessment.
At the DOJ
On the other hand, employers also need to
remain cognizant of the prohibitions against
unlawful, even inadvertent, discrimination in the
hiring process. In a recent trend, the Department
of Justice is investigating and fining employers who require specific documentation from
employees during the I-9 employment eligibility
verification process. DOJ’s Office of Special Counsel for Immigration Related Unfair Employment
Practices (OSC) often relies on statistics showing a
large proportion of employees presenting specific
documentation during the I-9 process to determine whether to pursue an investigation and
charges for document abuse against an employer
under the anti-discrimination provisions of the
Immigration and Nationality Act, Section 274B.
Section 274B prohibits employers from requiring
specific documentation for the I-9 verification
process. Under the law, employees can present
any unexpired documentation establishing
H-1B Cap Freeze-Out;
Alternatives for Foreign
Who’s Who Legal........ 3
Meet Our Immigration
Attorneys ..................... 3
About the Jackson
Practice Area ............. 4
1identity and authorization to work from the list of
acceptable documents. Lawful permanent residents, for
example, may present either a permanent resident card
(I-551 or “green card”) or a drivers’ license and a Social
Security card. By reviewing data entered on the Form I-9
and information captured through E-Verify, OSC can identify employers with a high percentage of lawful permanent
residents verified using a permanent resident card from List
A of the List of Acceptable Documents. OSC is aggressively
targeting employers for document abuse and seeking
significant fines. Depending on the size of the employer,
OSC can impose civil fines for document abuse amounting
to tens of thousands, even well over $100,000.
Employers should review their internal policies and
training programs to ensure that employees are allowed
to present any acceptable combination of documents
from the Form I-9 List of Acceptable Documents.
Employers also should consult with counsel on ways to
mitigate potential scrutiny by OSC for document abuse.
The H-1B program, which allows employers to seek to hire
nonimmigrant aliens as workers in specialty occupations,
provides 65,000 visas for the general category and 20,000
under the advanced degree exemption.
For the second year in a row, USCIS reached the H-1B cap
during the first five days of filing. This recalls the situation
that existed in 2007 and 2008, before the recession, when
caps also were met quickly. It appears that the demand for
H-1B workers fluctuates with the economy.
On April 7, 2014, USCIS announced that it had received
enough H-1B petitions to reach the statutory cap for fiscal
year 2015, beginning on October 1, 2014. On April 10, 2014,
USCIS announced that it had received 172,500 petitions.
A random computer selection process determined which
of the received petitions will be processed for the caps of
65,000 visas for the general category and 20,000 under the
advanced degree exemption. Petitions not selected have
been rejected and are being returned to employers, with
the filing fee checks uncashed.
The uncertainty of relying on a lottery system to obtain
needed employees has been a challenge for many U.S. employers. Congress has been trying to address the problem.
The Senate’s comprehensive reform bill includes provisions
that would increase the number of H-1B visas to between
115,000 to 180,000 per year. The exact number would
depend on economic factors. While other provisions of the
bill, as currently written, would raise the cost of many of
those H-1B’s by artificially inflating the required wage for
H-1B workers, the prospect of a cap that is more in line
with America’s hiring needs is welcomed. The House has
not yet passed any bill expanding the availability of H-1B
visas. Compete America, a tech industry lobby group, has
encouraged the House to pass the Skills Act, a standalone
H-1B bill. The current signals out of Washington do not
indicate strong support for either comprehensive reform
or a piecemeal solution, and observers fret that significant improvements to the immigration system may not
materialize this year.
All is not lost, however, for prospective hires of foreign
national professionals. Employers and employees meeting
certain requirements may qualify for an alternative work
visa. Alternative visa options for employees locked out by
the H-1B cap include the following:
• For Canadian and Mexican professionals, the TN
(“Treaty-NAFTA”) visa available under the North
American Free Trade Agreement.
• For nationals of Australia, the E-3 visa.
• For nationals of Chile or Singapore, the H-1B1 visa.
• For intracompany transferees, the L-1 visa. An organization with foreign operations can transfer employees to
its U.S.-affiliated company in a similar position under
• For individuals with a U.S. degree in a science,
technology, engineering or math (STEM) field
and employers enrolled in E-Verify, the 17-month
optional practical training (OPT) extension.
• For individuals who may qualify under the
extraordinary ability criteria, the O-1 visa.
• For essential employees if the company and foreign
national share the same nationality, the E-1
(Treaty Trader) or E-2 (Treaty Investor) visa.
• For individuals in F-1 status, continue with F-1 studies
and look at internship opportunities under curricular
practical training (CPT).
H-1B Cap Freeze-Out; Alternatives
for Foreign Professionals
Predictably, U.S. Citizenship and Immigration Services (USCIS) reached the H-1B cap for fiscal year 2015 in the first week
of April. For those who need new work visas, but were shut out, there may be a “Plan B” under other visa categories.
2• For individuals who may qualify under the EB-1
extraordinary ability, EB-1 outstanding researcher,
or EB-2 national interest waiver (NIW) criteria, pursue
concurrent I-140/485 green card process and work
• For individuals whose employers have offices outside
the United States, the individuals can be placed on the
foreign payroll and work abroad until next year’s H-1B
filing period or until another type of work visa becomes
• For individuals entering a structured training program,
the H-3 visa.
• For individuals who can be
classified as an Exchange Visitor,
the J-1 visa.
Each of these visas has specific legal
requirements that the employer and
employee must meet to qualify. Every situation
is different and your legal representative should
be consulted to ensure you have an alternative plan
should the H-1B petition filed on behalf of a foreign
national employee be rejected.
e are pleased to announce the following Immigration Practice Shareholders are featured
immigration lawyers in Who’s Who Legal
• Harry J. Joe
• Kevin Lashus
• Rebecca R. Massiatte
• Amy L. Peck
Since 1996, Who’s Who Legal has identified the foremost
legal practitioners. Nominees are selected based upon
comprehensive, independent survey work with both
general counsel and private practice lawyers worldwide.
Only specialists who have met independent international
research criteria are listed.
Who’s Who Legal
Kevin Lashus is the Office Managing Shareholder of
the Austin, Texas, office. Mr. Lashus has experience in
providing uniquely tailored advice to assist clients in
developing comprehensive employment authorization
and immigration-related compliance systems, including
full-scale or localized IMAGE and E-Verify implementation
protocols. His public-sector background (first as a Texas
Assistant Attorney General, then as an Assistant District
Counsel with the U.S. Department of Justice, and finally,
as an Assistant Chief Counsel with the U.S. Department
of Homeland Security) helps him prepare clients to minimize exposure during complex regulatory, administrative,
and civil litigation. He is Board Certified in Immigration
and Nationality Law by the Texas Board of Legal Specialization.
Maggie Murphy is a Shareholder in the Austin, Texas,
office. Ms. Murphy concentrates her practice on advanced
U.S. immigration and nationality law and global business
immigration matters, assisting employers with immigration challenges facing international workforces. She has
extensive experience in all areas of U.S. immigration law,
primarily focusing her current practice on employmentbased immigration for corporate clients and outstanding
professors/researchers, as well as sophisticated immigration-related compliance work for employers of all sizes.
Ms. Murphy has expertise in managing PERM campaigns
for employers and in developing cost-effective strategies
for companies and organizations interested in hiring professional foreign workers. She has organized massive I-9
and LCA compliance programs for Fortune 500 organizations. Ms. Murphy is Board Certified in Immigration and
Nationality Law by the Texas Board of Legal Specialization.
Robert Neale is Of Counsel in the Seattle, Washington,
office. Mr. Neale has extensive experience advising
companies and individuals on the complexities of business
immigration law, including securing temporary work
permits, submission of permanent residence applications, I-9 compliance, U.S.-Canada cross-border matters
and consular processing. He has successfully implemented
comprehensive proactive compliance programs in a variety
of industries. Prior to joining Jackson Lewis, Mr. Neale spent
eight years as in-house counsel at a large Pacific Northwestbased Fortune 50 technology company where he assisted
employees, managers, business partners and others with
their immigration needs. Mr. Neale developed expertise
in establishing, maintaining and improving corporate
immigration policies and procedures.
Meet Our Immigration Attorneys
Kevin Lashus, Maggie Murphy and Robert Neale are three attorneys
in our Immigration practice.
he Jackson Lewis Immigration practice consists of a
multi-cultural team of professionals with a command
of 15 languages, working to provide a broad range
of immigration law services. Our attorney paralegal
team model leverages more than 300 years of combined
corporate immigration experience held by group attorneys
with the efficiency and cost-effectiveness of a highly
trained paralegal pool. We:
• Train and advise employers on I-9 employment
eligibility verification, Social Security “no match,”
and E-Verify practice and requirements.
• Help establish in-house visa programs and policies to
streamline international transfers and visa sponsorship
• Represent companies in government audits.
• Assist companies in obtaining temporary and
permanent employment visas for foreign employees
in the United States.
• Counsel recruiting staff and management about the visa
system to facilitate strategic planning for key employees.
• For outbound visa assistance, working in concert with
a network of leading foreign law firms, offer seamless
global coverage for the movement of critical staff.
The Shareholders are:
Sean Hanagan HanaganS@jacksonlewis.com
(Practice Group Lead)
Davis Bae BaeD@jacksonlewis.com
Minnie Fu FuM@jacksonlewis.com
Raazia Hall HallR@jacksonlewis.com
Harry J. Joe JoeH@jacksonlewis.com
David Jones JonesD@jacksonlewis.com
Kevin Lashus Kevin.Lashus@jacksonlewis.com
Marko Maglich Marko.Maglich@jacksonlewis.com
William J. Manning ManningW@jacksonlewis.com
Rebecca R. Massiatte MassiatteR@jacksonlewis.com
Maggie Murphy Maggie.Murphy@jacksonlewis.com
Robert Neale Robert.Neale@jacksonlewis.com
Michael H. Neifach NeifachM@jacksonlewis.com
Otieno B. Ombok OmbokO@jacksonlewis.com
Amy L. Peck Amy.Peck@jacksonlewis.com
Nicola Ai Ling Prall PrallN@jacksonlewis.com
About the Jackson Lewis Immigration
See our Immigration Blog
for regular updates on immigration matters.
Sean Hanagan, (914) 328-0404, HanaganS@jacksonlewis.com
Roger S. Kaplan, (631) 247-0404, KaplanR@jacksonlewis.com
Mei F. So, (212) 545-4000, SoM@jacksonlewis.com
Jackson Lewis P.C.
One North Broadway
White Plains, NY 10601
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