U.S. Citizenship and Immigration Services (USCIS)

Asplundh Tree Expert Co., one of the largest privately owned corporations in the country, with 30,000 employees and 3.5 billion in annual sales, according to Forbes, has been ordered to pay $95 million in the largest fine against a company for hiring thousands of immigrants who did not have permission to work in the U.S., according to federal officials. Asplundh, a 90-year-old, family-owned company that employs 30,000 workers in the U.S., Canada, Australia, and New Zealand, clears brush and vegetation from electric and gas lines and holds many municipal, state, and federal contacts.

According to the U.S. attorney’s office in Philadelphia, Asplundh employed thousands of undocumented workers between the years of 2010 and 2014 with its top management remaining “willfully blind” while lower level managers hired and rehired employees they knew to be ineligible to work in the United States,” the office said. In addition to having to forfeit $80 million, Asplundh will pay a $15 million civil penalty for not complying with immigration law. Asplundh employed thousands of undocumented workers between 2010 and 2014 with its top management remaining “willfully blind” while lower-level supervisors hired people they knew were in the country illegally to maximize profit.

Homeland Security Investigations began auditing Asplundh Tree Experts on Nov. 19, 2009 to make sure the company complied with federal laws regarding the hiring of immigrants. After being given a list of names, Asplundh fired hundreds of its employees who were ineligible to work in the U.S. Others quit before they could be terminated. After acting like it was complying with HSI demands, Asplundh instead doubled down on its illegal practices, according to federal authorities. Many of the some employees Asplundh had just let go were re-hired under different names using fake or illegally obtained documents. One of its regional managers, Larry Gauger, even went so far as to tell supervisors who worked under him that they had “plausible deniability” because their illegally obtained social security numbers would be positive matches in the E-verify database, court papers state. Gauger has pleaded guilty and is scheduled to be sentenced next month.

“This decentralized model tacitly perpetuated fraudulent hiring practices that, in turn, maximized productivity and profit,” prosecutors said in a statement. “With a motivated workforce, including unauthorized aliens willing to be relocated and respond to weather-related events around the nation, Asplundh had crews which were easily mobilized that enabled them to dominate the market.”

ICE issued a statement on 9/28/2017, “Today marks the end of a lengthy investigation by ICE Homeland Security Investigations into hiring violations committed by the highest levels of Asplundh’s organization,” said ICE Acting Director Thomas Homan. “Today’s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”

In a statement on its website, Asplundh said company officials “accept responsibility for the charges as outlined, and we apologize to our customers, associates and all other stakeholders for what has occurred.” Asplundh went on to say that is reviewing the identification of every employee and is adding a photo ID card system which includes the same facial recognition software used by ICE. The company is also adding a compliance specialist trained in ID examination in each region it does business.

Employers should remain alert and vigilant in their I-9 compliance practices. The Asplundh investigation is a lesson in compliance, demonstrating that liability exists not only in the evidence apparent in the paperwork, but also in an employer’s procedures, policies, and practices. An ICE investigation can be triggered from any number of sources, from an enforcement initiative within Homeland Security Investigations to a tip from an individual to the exchange of data between government agencies (SSA, IRS, DOL, etc.). An ICE investigation can result in more than just financial losses due to monetary penalties. These types of investigations, which can often carry on for years, result in the loss of workers and damage to company reputations and image, affecting relationships with customers and the public in general. Our recommendation on best practices is for employers to be prepared by performing private internal audits before ICE comes knocking.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On April 17, 2017,  USCIS alerted stakeholders concerning a glitch on the Form I-9.  The glitch specifically relates to any Form I-9 downloaded between November 14, 2016 and November 17, 2016 and the employee’s Social Security number.  Employers who downloaded Form I-9 during this brief period should ensure the employee’s Social Security Number appears correctly in Section 1.  As explained by USCIS, numbers inserted in Section 1- Social Security number field were transposed when the Form I-9 was completed and printed.   Forms completed after November 17, 2016 are not of concern as USCIS repaired the technical error and reposted Form I-9 on November 17, 2016.

Employers who detect a mistake in their employee’s Social Security numbers as written in Section 1 should request the employee draw a strike through the transposed Social Security number, write the correct Social Security number, and write their initials/date in the margin next to the change in Section 1.  It is also recommended that employers attach a written explanation to affected Form I-9s as to the reason for the correction as a safeguard in the event of an audit.

Today, USCIS announced it has completed the H-1B cap FY 2018 random selection process (also known as the H-1B lottery).  This means USCIS has completed the lottery and has selected enough petitions to meet the 65,000 regular-general cap and the 20,000 cap under the advanced degree exemption.   USCIS will reject and return all unselected H-1B cap petitions.  The government reported receiving a total of 199,000 H-1B cap petitions during the H-1B cap FY 2018 filing period, which started on April 3, 2017. This is remarkably less when compared with the 236,000 H-1B cap petitions filed during the FY 2017 period, which started on April 1, 2016.

As a reminder, effective March 3, 2017, USCIS temporarily suspended premium processing for all H-1B petitions for up to six months.  As such, no H-1B cap FY 2018 petition will be processed using the expedited premium processing, commonly utilized in prior years.  We will report back once USCIS has reinstated premium processing for H-1B petitions.

In the last few days, there have been a number of government announcements concerning the popular H-1B Temporary Worker status. Of course, these announcements come after this year’s crop of new H-1B visa applications have been sent to USCIS. Some of the linked announcements are warnings and others are disquieting.

What does all of this mean?

The Department of Justice cautions that employers seeking H-1B visas may not discriminate against US workers. The focus is on H-1B workers whose employment intentionally displaces US workers.

USCIS announced that it will take measures to detect H-1B fraud and abuse. No one is in favor of fraud or abuse in the system. USCIS warns/advises that it will make site visits particularly where it can’t verify the employer’s business information, where the employer is H-1B dependent or where the H-1B will be working off-site at another firm’s location. The takeaway is that employers should have their I-9 Employment Verification records and Public Access files in order so that if someone wants to see them, they see that everything is in order and hopefully fines and other penalties are avoided.

In its March 31, 2017 Memo, USCIS announced that it rescinded a memo from 2000 that provided guidance on H-1B computer-related positions. Recognizing that the world of computer-related positions has changed dramatically in the last 17 or so years, the year 2000 guidance that recognizes most programmers are working in “specialty occupations” is declared obsolete. The memo raises the question of what will be required to secure H-1B visas for computer programmers and others in the computer field.

This memo restates the law that H-1B rules require that the beneficiary must be working in a position that is a “specialty occupation”; having a Bachelor’s degree and being a programmer just isn’t enough.

To quote: “…while the fact that some computer programming positions may only require an associate’s degree does not necessarily disqualify all positions in the computer programming occupation (viewed generally) from qualifying as positions in a specialty occupation, an entry-level computer programmer position would not generally qualify as a position in a specialty occupation because the plain language of the statutory and regulatory definition of “specialty occupation” requires in part that the proffered position have a minimum entry requirement of a U. S. bachelor’s or higher degree in a specific specialty or its equivalent…”

The memo goes on to explain that to prove that a computer programmer is in a “specialty occupation”, the employer: ”must establish that the particular position is one in a specialty occupation as defined by 8 CFR 214.2(h)(4)(ii) that also meets one of the criteria at 8 CFR 214.2(h)(4)(iii)”.

These criteria are that a Bachelor’s or the equivalent is required to enter the field; that the degree requirement is common in the industry; that the employer normally requires the degree or that the duties are sufficiently complex that a Bachelor’s level education, at least, is required to perform them.

The American Immigration Lawyers Association (AILA) comments that the memo recites criteria that are the same for all H-1B applications, not just computer programmers. They also observe that : ” …the memo supports the proposition that a position cannot simultaneously have a job classification and pay rate at the low end of the industry salary range, while at the same time listing specific job requirements and skill that are more complex and specialized.”

To make a long story short, petitioners may need to provide additional detail to satisfy the “specialty occupation’ requirement when seeking a computer programmer or computer-related H-1B worker. These memos also provide notice of what uses of H-1B workers will be scrutinized and not be tolerated.

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On our Emerging Companies Insider blog, Fox associate Alex Radus provided an update on the new International Entrepreneur Rule by the U.S. Citizenship and Immigration Services (USCIS). The rule, which would grant limited entrée to entrepreneurs establishing stateside startups, has undergone a public comment period. Slated to become effective July 17, 2017, the rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S. As a result of public comments, USCIS generally made it easier for foreign entrepreneurs to establish startup companies in the U.S. via the program.

Alex outlines the changes made in the final rule since his previous discussion, including the timeframe for startup formation, the definition of “entrepreneur,” the minimum investment amount and other aspects. He also notes that with the change to the Trump administration, the future of the role, which was spearheaded by former President Obama, is uncertain. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion.

Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On October 24, 2016, the United States Citizenship and Immigration Service (USCIS) published a final rule confirming an increase to the processing fees for most of the applications and petitions it handles. This is a result of USCIS’ comprehensive review of the fee schedule for the fiscal year 2016/2017 the first USCIS fee increase since November 2010. The new fees will go into effect on December 23, 2016, which means that all applications or petitions postmarked on or after this date must include the new fees, or they will not be accepted by USCIS for processing.

According to the Department of Homeland Security, USCIS’ operational funding comes almost entirely from the user fees, and the current fees do not cover the full cost of services provided by the agency; the average fee increase of 21% is necessary to recover costs and maintain adequate level of services to the immigration benefits seekers.

While some applications see a relatively slight increase of $30 or $45, the cost of others, such as the Application for Adjustment of Status (I-485), Application for Naturalization (N-400), and Petition for a Nonimmigrant Worker (I-129) will go up by more than $100, which undoubtedly may affect certain applicants and petitioners, such as households with limited incomes or small employers. As a relief measure, simultaneously with the overall increase of the cost of services provided by USCIS, the agency now offers a reduced filing fee for the naturalization applicants (N-400) whose family income falls between 150% and 200% of the Federal Poverty Guidelines, which is adjusted annually by the U.S. Department of Health and Human Services to determine eligibility for certain federal programs. An additional benefit of the new rule is that USCIS will no longer automatically reject an immigration or naturalization benefit paid with a dishonored check or missing the required biometrics fee. Instead, applicants will be provided an opportunity to correct the deficient payment (i.e., USCIS will attempt to resubmit the insufficient check to the applicant’s bank once again) or by paying the required biometrics fee during their biometrics appointments or immigration interview. The new rule will not affect charge free services provided to refugees and asylum applicants, as well as other customers eligible for fee waivers or exemptions.

This chart lists some of the key new USCIS’ fees effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.  You can find the complete new fee schedule here.

Immigration Benefit Request New Fee ($) Old Fee ($)
I–90 Application to Replace Permanent Resident Card 455 365
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 330
I–129/129CW Petition for a Nonimmigrant worker 460 325
I–129F Petition for Alien Fiancé(e) 535 340
I-130 Petition for Alien Relative 535 420
I-131/I-131A Application for Travel Document 575 360
I–140 Immigrant Petition for Alien Worker 700 580
I–290B Notice of Appeal or Motion 675 630
I–360 Petition for Amerasian Widow(er) or Special Immigrant 435 405
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500
I–539 Application to Extend/Change Nonimmigrant Status 370 290
I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 775 720
I–751 Petition to Remove Conditions on Residence 595 505
I–765 Application for Employment Authorization 410 380
I–824 Application for Action on an Approved Application or Petition 465 405
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I–924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 6,230
I–924A Annual Certification of Regional Center 3,035 0
N–400 Application for Naturalization* 640 595
N–470 Application to Preserve Residence for Naturalization Purposes 355 330
N–565 Application for Replacement Naturalization/Citizenship Document 555 345
N–600/N–600K Application for Certificate of Citizenship 1,170 600/5503
USCIS Immigrant Fee 220 165
Biometric Services Fee 85 85

*Certain low-income naturalization applicants may pay a filing fee of $320 plus the $85 biometric services fee. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee and Form N-400, Application for Naturalization.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

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On our Emerging Companies Insider blog, Fox associate Alex Radus published an excellent piece covering a proposed new rule by the U.S. Citizenship and Immigration Services (USCIS). The rule would grant limited entrée to entrepreneurs establishing stateside startups. The rule would permit the Secretary of Homeland Security to offer parole (temporary permission to be in the U.S.) to individuals whose businesses provide “significant public benefit.” That means the startup should have a substantial potential for rapid growth and job creation, and that the entrepreneur’s parole would significantly help the startup conduct and grow its business in the U.S.

Alex outlines the qualifications that foreign entrepreneurs will have to meet when seeking to benefit from the program, as well as the investor requirements and timespan involved. He also notes some of the practical concerns surrounding the rule as proposed. We invite you to read his valuable discussion and join the debate during the public comment period provided by DHS.

In a continuation of its effort to encourage eligible immigrants to become U.S. citizens, the Obama administration is proposing adjustments to the immigration benefit fee schedule that would raise the cost of some benefits but reduce naturalization fees for certain low-income immigrants.

The Department of Homeland Security (DHS) released its proposed changes to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule on May 4, 2016, affecting its fees for services.  The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

According to USCIS, it conducted a comprehensive fee review, after refining its cost accounting process, and determined that current fees do not recover the full costs of the services it provides.  Accordingly, it has stated that adjustment to the fee schedule is necessary to fully recover its costs for services and to maintain adequate service levels.  DHS proposes to increase USCIS fees by a weighted average of 21 percent and add one new fee.  In addition, DHS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee, and make a number of other changes.  USCIS last adjusted its fee schedule in 2010.

This chart summarizes the proposed changes.  The range of fee changes varies, for example, increasing by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.  In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

Largely exempt from the increases, however, are low income immigrants who wish to become U.S. citizens.  Under the proposed rule, “DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.”

“DHS is proposing this change to increase access to United States citizenship,” the proposed rule explains.  The allowance effectively cuts in half the current cost of naturalization — $680, including the $85 biometric fee for these individuals while seeking an additional $45 increase in the cost of naturalization applications for those immigrants who can afford it.

Rep. Luis V. Gutiérrez (D-IL), who has been promoting naturalization and voter registration across the country as a means for immigrants to “Stand Up to Hate,” cheered the rule.  “Right now, a lot of immigrants face a difficult choice: pay $700 or so for the chance to take all the tests and apply for citizenship, or pay $450 to renew a green-card for five years,” Gutiérrez said in a statement.

“Now, the math is much better,” he continued. “You can apply for citizenship and a fee waiver and become an American citizen – with all the rights, duties and honor of citizenship – for a more attainable price or maybe even for free.  The new calculation is going to mean that millions of those who are already eligible can finally take the step and apply for citizenship.”

Applicants can apply for a fee waiver if their income is below or 150 percent of the poverty line, they are receiving a means-tested benefit, or they are experiencing “financial hardship.”

In recent years the Obama administration has put an emphasis on encouraging the estimated 8.8 million eligible legal permanent residents in the U.S. to naturalize and become citizens. Immigration activists, like Gutiérrez, have also embarked on campaigns to help immigrants naturalize and register to vote in a bid to influence the upcoming 2016 election.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Moving quickly along, the US Citizenship and Immigration Services (USCIS) informed the public that it completed data entry of all “winning” fiscal year 2017 (FY2017) H-1B cap-subject petitions (i.e., petitions that were selected in the computer-generated random process).  The announcement was made on May 2, 2016.  Considering that approximately 236,000 H-1B cap-subject petitions were received by USCIS in early April, it is quite a feat that the Immigration Service conducted the lottery and completed data entry on the selected petitions so fast.

Due to volume and to balance the workload, USCIS stated that it will be transferring some of the selected petitions from the Vermont Service Center (VSC) to the California Service Center (CSC).  Employers whose petitions are transferred will be notified via mail and should communicate with the indicated Service Center going forward, including for such things as upgrading to premium processing.

USCIS will return the “unselected” cap-subject H-1B petitions to employers, but could not provide a time frame for this due to the large number of petitions for which there were no available H-1B numbers.  USCIS stated that it will issue an announcement after all of the unselected petitions are sent for return.

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  She may be reached at (412) 394-5540 or cwadhwani@foxrothschild.com.