Immigration Insider

Signs of Old Age...

Okay, so this is how you realize you've been doing something for a loooooooooong time: You are trying to find the answer to a cryptic question you think you once had figured out. You search on Google. You promptly find a long-winded article you wrote on the subject 3 years ago as the 4th link on your Google search, only to realize that the question was as cryptic then as it is now... Oy. All that being said, here is the question and answer for those of you who have better things to do than read a big article: THE QUESTION: How large and established must an employer be to file an H-1B petition? Can a company petition for its owner as an H-1B? THE ANSWER: It depends...(-: FOLKS: please bear in mind that a lot of what was relevant in 2006 is not so today and new worksite issues have arisen.  Don't take the following as gospel but more as an overview of the issue, okay?  J -------------------------2006 Article begins------------------------ How large and established must an employer be to file an H-1B petition?

Written by Jose E. Latour

Sunday, 31 December 2006

How large and established must an employer be to file an H-1B petition? Can a company petition for its owner as an H-1B? Okay, this is one I "sort of" tackled in a prior FAQ discussion, but it's time to take the bull by the horns and resolve this once and for all. Once again, I am running off at the keyboard more than most, but I am doing so because this issue is critical, particularly to the flood of clients we are getting which are foreign-national-owned IT startups in burgeoning software consulting fields. For those folks, reading this carefully is worthwhile. For the rest of you who want a quick answer, skip all my blabber and go down to the bulleted points below, skimming the rest...that should get you the quick answers you need. Okay, here goes the treatise... First, a little background: when I left the Foreign Service and started my private practice, I knew A LOT less than I thought I did about employment based visas. As a Visa Officer in Mexico and Africa, I had adjudicated thousands of visa cases, and felt pretty comfortable saying that I knew the law well. WRONG. As a busy Visa line officer, you are facing an astonishing workload and a million other pressures associated with living in a new culture. While I was conscientious about reading the updates, I didn't have the time to dig and analyze. I found out the hard way when I started private practice that answers to questions like this FAQ just were not anywhere to be found. So, in my innocence/ignorance, I did what I could... Among the first H-1B's I filed in those first months of 1990-91 were small companies, because that was all I could find as clients. I mean TINY, in some cases BRAND NEW companies. Rebuttals came from the INS but, lo and behold, they got approved. I have clients that think I was filing these and getting these approved because I was a really good attorney; the truth: I was a really INNOCENT attorney! Soon, a small group of AILA members and me were becoming known as able to get small company H visas approved where other, more established firms would not TOUCH these cases. Finally, around 1994, I was speaking at an AILA national convention and I was challenged point blank by a VERY established, reputable immigration attorney. His position: you MAY be getting these approved via INS ignorance, but these cases are NOT within the scope of standards defined by the law. So, with the white glove ceremoniously whacked across my cheek, I set off to prove my position. I wrote a letter to Jacquelyn Bednarz, Chief of Non-Immigrant Visa Operations (You may recognize her name: in prior articles on usvisanews.com I have unabashedly raved about Ms. Bednarz as a beacon of light in an often impenetrable Washington INS bureaucracy). I got a call from her office saying that, coincidentally, another attorney had asked the same questions about small company H-1Bs and "Self-employed" H-1Bs, and that the answer was forthcoming and would be shared with Interpreter Releases, the weekly bible of immigration attorneys. Sure enough, I was right: when the response was published, Ms. Bednarz responded (paraphrasing her): There is nothing in the regulations to preclude a corporation or other legal entity as the "employer" from petitioning for an individual who is a shareholder in the corporation. However, a self-employed individual could not petition for his or her own H. Vindicated, and resisting the urge to call up my colleague with a bucketful of I-told-you-so's, I realized that given this guidance -- the position the INS had taken consistently with the small company H-1Bs I and other attorneys were getting approved -- begged another question: "Just exactly how big and established did a company need to be since the law and regulations did not set minimums?" The answer has never been, to date, provided by INS, but the responses on adjudications over the years have centered around a central issue: the company's ability to pay the wage. The cases which were approved most quickly were those with either the most employees (establishing a history of paying wages) or megastartups, with skyrocketing growth from day one. It was like the INS had informally adopted an adjudication standard consistent with what the DOL is supposed to do with labor certifications: confirm that before the case is filed, the employer has the ability to pay the offered wage from day one. So, with that published, the number of small company Hs filed went through the ceiling, and the rest of the immigration community which had been skeptical joined in the filings. Along with those of real, up-and-coming small companies were a barrage of really weak, this-will-never-fly type cases by attorneys more interested in collecting a fee than in helping their clients...stuff no one legitimate would touch. So INS did what it had to do: began denying these cases. One would think that, ultimately, an appeal would clarify these issues, even if the appeal upheld the denial, but it never happened. Small wonder: the cases denied were for tiny companies who could not afford the money nor the two plus years of appeal time...life went on and the standards continued to be vague. Up until about just recently, our firm was still routinely accepting cases from small companies with brief histories and small earnings, and getting them approved. Currently, we have one such case pending, and it was returned with an INS request for further evidence involving the ability to pay wage. I should have seen it coming: since around September, I've probably gotten a dozen plus e-mails from H-1B employers horrified to learn that their attorney had the case denied. When I inquired, the fact pattern was the same... The INS taking the position that the job wasn't "real" but, rather, a manipulation of the H category for self-employment purposes. But WHERE was the legal reasoning behind this? I just don't see it. I suppose the part that bugs me the most is that in the mountain of employment visa legislation we have seen this decade, there has not been a single item changing what Ms. Bednarz confirmed and what a few of us knew all along. Why the increased scrutiny? Was it because America was more anti-immigrant? Is it because the India priority dates are backlogged and more and more IT professionals are looking for alternatives and trying to put their futures in their own hands -- via their own companies -- instead of sticking with the large national firms? Is Bill Gates behind all of this? And why the "trampoline room," while we're on the subject of Mr. Gates? HUH?! Sorry. I digress. Conspiracy theorists, knock yourselves out, but please spare me the e-mails! Anyway, as a result of all this, our firm has set these minimum standards for H-1B case acceptance: The employer must have a six month history of profitable activity. The employer must have at least three full time U.S. workers. The employer must have provable contracts indicating future activity. Of course, these criteria are not static. If I get a month-old, two man company with a $2,000,000 contract on Microsoft letterhead for the development of a new protocol, you can bet your H we would not turn that away... These are sort of general critiria. (ATTORNEY READERS- if your firm has "minimum size" H employer policy, we would love to hear from you.... Tell us what the policy is, and your rationale, since you may think I am way off base....) So, there's your semi-answer...sorry it isn't more clear but, hey, this is immigration practice, not something precise and clear like quantum physics. I will leave you with... JOSE'S UNSCIENTIFIC MAXIMS FOR SMALL COMPANY H-1B VISAS The smaller the number of employees, the longer the history you need; the shorter the history, the more U.S. employees you had better show. While contracts for future services are fine, they will NEVER substitute for a history of verifiable income. If the company is filing for its shareholder, the standard of company strength is higher than if the same size company is filing for someone not "related" to the company. The INS will not approve petitions for small companies engaged in the speculative hiring of professionals ("body-shopping"), particularly in the IT and health fields unless their financial strength and history can be proven. Once the regulations defining the new "no bench" provisions are finalized, you can count on this being an even tougher standard for such companies.

  ------------------end of 2006 article-------------------

Dishonest Filipino Recruiters A Threat To U.S. Employers

It was a very steamy day in Manila, Philippines, on July, 1995, and I was even more uncomfortable than I usually am in a suit and tie.  I was seated at the office of the director of the Philippine Overseas Employment Agency (POEA), having been invited via a common contact at the U.S. embassy in Manila.   (The POEA is tasked with insuring that the Philippine's most valuable "export" and its primary source of income -- skilled Filipino professionals working overseas --  are treated fairly by their overseas employers.) Opposite me, with beady little eyes, sat the attorney for the organization, and he was irritated.  He saw my presence - and my credentials as a former U.S. diplomat and, at the time, owner of a health care recruitment agency in Florida - as an offensive intrusion on his legal turf. 

 

The start of the conversation was, accordingly, a bit uncomfortable.  I sat there and listened to the attorney describe how the existing rules made it "impossible" for FIlipino professionals to fall victim to unscrupulous recruiters and U.S. employers, nodding, until the director asked me the right question:  "What other ways could our workers fall victim to dishonest dealing if we have all this in place?"

 

For the next hour and a half or so, both of them sat -transfixed is probably not too strong a word -- as I gave them example after example of ways that I could, were I dishonest and ready to exploit the folks I was recruiting, essentially paint them into a corner of de facto indentured servitude.  By the time I left the POEA office, the lawyer was my friend and the director asked me to consult with them on rewriting the rules, which they did over the next few years.

 

Fast forward to yesterday's news as reported by USA Today, NPR, and most major news agencies:

 

Unions representing teachers in Louisiana filed a complaint with state authorities alleging that a Los Angeles recruiting firm broke the law by holding more than 350 Filipino teachers -all in H-1B visa status -- in "virtual servitude" in order to hold onto their jobs in five Louisiana parish school systems, including New Orleans' Recovery Zone.  The Louisiana Federation of Teachers and its parent organization, the American Federation of Teachers (AFT), accuses California-based Universal Placement International of charging Filipino nationals about $15,000 apiece to get jobs — more than 40% of some new teachers' salaries in a few Louisiana parishes — and required that they pay 10% of their monthly salary for two years to keep them.  The two unions want the firm to repay the fees to teachers and want the state to invalidate Universal's contracts and prosecute its officials.

 

As you can tell from my intro to this story, this is nothing new.  When my recruitment company was bringing in Filipino nurses and rehab professionals (a venture which lasted about a year, until Florida's DPR made temporary license issuances a colossal ordeal), we were the only agency which was NOT charging an up front "consideration" fee for interested candidates...100% of our compensation came from placement fees paid by the U.S. employers who asked us to find them workers.

 

I cannot help but wonder how the AFT and other good folks who have brought this latest calamity to light can treat this as startling.  AFT President Randi Weingarten was quoted in USA Today as saying that it would be ""mind-blowing that a recruiter could actually get away with this. Even if it was an isolated incident, it would be horrible, but my hunch right now is that it's not isolated."

 

Your hunch, Ms. Weingarten, is right on the money, and nothing new.

In fact, just two weeks ago, Global Nation (a leading online resourse for Filipinos working abroad) published an article indicating that, according to the POEA itself, some recruitment agencies whose licenses have been suspended or cancelled by the POEA were still actively recruiting abroad.  In a statement, POEA Administrator Jennifer Jardin-Manalili said that for 2008 and the first six months of 2009 alone, the POEA cancelled 76 licenses and suspended or fined 57 agencies as a result of recruitment violations.

Folks, this isn't just about exploited workers. This is about U.S. employers who rely on staffing agencies to recruit from abroad.  As noble as the intervention of the teachers' unions is, and as outraged as we are at the revelations of this particular situation, there is something no one seems to remember: under federal labor and immigration laws, employers cannot hide behind independant contractor or agency relationships to indemnify themselves from violations of U.S. labor and immigration laws.  Put simply, the sins of the hiring company become, at least technically, the sins of the employer. Inequitable as it would be, if the U.S. employer of these H-1Bs were a private corporation instead of the beleagured state of Louisianna, an ICE investigation -- and great big sanctions -- would be in order.

Talk to me before you hire from abroad, okay?  And have a great weekend.

Jose

In Praise of Biometrics

It was back in 1988 when I first sat down to teach Border Patrol officers stationed at the very porous El Paso/Ciudad Juarez border the difference between legitimate "Micas " - border crossing cards (BCCs) - and those which were fraudulent.  Incredible as it seems, the profitable art of subtle photo replacement and modified signatures was thriving along the U.S./Mexico border long before the advent of the color copier would make places like Manila epicenters of sophisticated document fraud.

Back in Juarez, we saw it ALL.  I could write a book about the fraud perpetuated at the border, and I remember lively discussions with my wonderful visa section boss, Mike Hogan, and our incredibly astute Consul General, Louis Goelz, over the problem.  I served as Fraud Officer for a period of time in Juarez, responsible for what were known as "Stateside Criteria" cases...immigrant visa processing of individuals who had married U.S. citizens and who wanted to get their permanent residency approved at a convenient border boast in Mexico or Canada instead of flying home to wherever.  Juarez, as it happened, was responsible for NYC area cases, and about 80% of the marriages we interviewed were bogus.

In the midst of the scams, I advanced an idea to my bosses, and they thought it was a fine one:  why not simply 1) include thumbprints on BCCs and 2) integrate federal criminal fingerprint and photo data at a national level, allowing border entry posts to have access to FBI ID verification information? It was a fine idea, promptly filed in the circular file by the State Department.

Well, here we are 21 years later, and the "new" concept of biometric ID enhancement is all the rage.  The TWIC card is foolproof and will keep our ports safer, we are told.  Yet there remains a certain vocal resistance to the implementation of basic biometric technologies because "in America we don't want a national ID card."  The logic behind that is valid, but rooted in emotion: the horrors perpetrated by the Nazis against the Jews and others was in large part organized via the issuance of identification cards, and the post war reaction was that this kind of documentation did not belong in the land of the free and the home of the brave.

Yet the concept of a national ID has continued to be the common denominator in systems utilized by some of the most civilized and democratic countries in the world.  In Latin America, the "cedula" - the ubiquitous nationa ID document - is part of everyone's daily life, sort of a combination SSA card and internal passport.  In America today, with the dual problems of illegal immigration and threat of border-crossing terrorism, common sense dictates that we need a fresh look at this option.

Several days ago the Wall Street Journal brought this issue up, and several U.S. congress members - one Democrat and one Republican - wrote what I felt was a pretty good comment to the editor.  Here you have it in its entirety:

"The Journal’s editorial “Blame the Employers” (July 16) is right to point out the shortcomings of the federal government’s E-Verify employment verification system.

Database inaccuracies and a vulnerability to identity theft and document fraud render E-Verify far from foolproof, and can subject employers to harsh sanctions when the system fails them. The government should not lag behind by continuing to cling to an employment verification system that has proved to be inadequate.

Where we disagree, however, is in equating biometrics with a national ID card. Use of state-of-the-art biometric technologies is already happening in the private sector and does not require using a card.

Consumers are increasingly given the choice to use biometrics to either prove or protect their identities, whether at the airport or at the ATM. A thumbprint or a retina scan is not the same as an ID card, as it cannot be forged, stolen or misused.

 That’s why utilizing biometrics this way in the employment verification process to confirm identity is included in our bipartisan House bill, H.R. 2028, the “New Employee Verification Act.”

Yes, there will still be unscrupulous employers and “off the books” employment, but that’s where the government should be focusing its enforcement resources—not on plant raids on law-abiding businesses with properly verified employees."

Rep. Sam Johnson (R., Texas)
Rep. Gabrielle Giffords (D., Ariz.) Washington

Tweaking E-Verify

With the election just weeks away, the economy reeling, and the future looking anything but bright, the rhetoric regarding employment verification has cooled a bit of late.  But one thing remains clear: E-Verify, love it or hate it, seems to be solidly established as the federal government's solution for the foreseeable future.  How E-Verify plays out reveals the very complex nature of the subject matter, and opinions are anything but what you'd expect them to be. 

Take FAIR, the Federation for Immigration Reform, one of the more rabid critics of the government's immigration policies.  Given the error rates cited by the U.S. Chamber of Commerce and FAIR's historical distrust of the USG, one would expect its position on E-Verify to be negative.  Yet in early August, FAIR referred to E-Verify as:

"...a highly successful program that allows employers to verify electronically that workers are legally eligible to be work in the U.S."

Hmm.  Meanwhile, SHRM, the nation's leading human resources organization, represents employers nationwide and has tremendous resources dedicated to workforce compliance via both national and state chapters.  But instead of working diligently to educate its members on how to best work with E-Verify, the organization wasted most of 2008 pushing a rather ill-conceived alternative and deeming E-Verify a complete and utter flop.  Their proposed "solution" would have trashed all the progress made via E-Verify.

The truth is simple, notwithstanding all the hyperbole from the various lobbyists and interest groups:  E-Verify is fundamentally sound but needs more work.  The DHS has invested a lot of time and energy into developing it and, for ONCE, the USG deserves credit for reaching out to organizations like i9 Advantage in helping us improve our employer solutions through better integration with E-Verify. 

Here's an idea, folks: let's start working together to develop the private sector tools which truly make E-Verify an integrated, effective part of employment verification.  Let's educate employers.  The government is doing its job pretty well, I'd say, and companies like ours are working very hard to develop the solutions employer needs. 

Perhaps if we spend less time trashing and more time tweaking, we can get this baby up and running the way we need it to run to both prevent unauthorized employment AND protect the good companies trying so hard to comply with the law.

J

McDonald's Franchisee Agrees to Whopper of a Fine...

I know, I know, I apologize for the headline but it was impossible NOT to do it.

The most telling part about this news is its source: released on PR Newswire by the USG, which used the opportunity to boast of the $31 million in criminal fines, restitutions and civil judgments as a result of worksite related enforcement actions collected in FY 2007.

Ouch.  I've edited out a little fluff but left in most of it so you can see just how serious the USG is working to instill fear in the hearts of employers who are NOT maintaining workplace compliance rules.  Save yourself a million bucks and contact Terry at i9 Advantage and let us get your compliance in order

McDonalds Franchisee Admits to Two Felony Counts - Agrees to Pay $1 Million Fine

Two executives from a company which owns 11 McDonalds restaurants in the Reno, Nevada area pleaded pleaded guilty in federal court in Las Vegas today to federal felony immigration offenses for "encouraging illegal aliens to reside in the United States".

U.S. Attorney for the District of Nevada Gregory A. Brower and Department of Homeland Security Assistant Secretary for ICE Julie L. Myers announced the plea agreements, which are the latest developments in an ICE probe that began in March 2007 after the agency received a tip about a possible incidence of identity theft from the sheriffs office in Lyon County, Nev.

Attorneys for Mack Associates Inc., which owns the Reno-area McDonalds restaurants, pleaded guilty on behalf of the franchisee to one count of conspiracy to encourage and induce an aliens unlawful residence in the United States and one count of aiding and abetting an alien to remain in the United States, both felony offenses. Joe Gillespie, 53, of Sparks, Nev., the Director of Operations for Mack Associates Inc., also pleaded guilty to one count of aiding and abetting an alien to remain in the United States. Both defendants waived indictment by a federal grand jury and agreed to plead guilty to criminal informations.

The government and Mack Associates agreed that the corporation will pay a $1 million fine -- $500,000 for each count, the maximum allowed -- and be placed on probation during the period that the fine is outstanding. The court accepted this agreement and sentenced Mack Associates today to one year of probation and ordered the corporation to pay the agreed upon fine, with $300,000 payable immediately and the balance to be paid within nine months.

The plea agreement details how Mack Associates management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals.

In addition, Jimmy Moore, 47, the franchisees former vice- president, pleaded guilty to one felony count of inducing an illegal alien to remain in the United States. At sentencing, Moore faces a maximum penalty of up to five years in prison and a $250,000 fine.

A third defendant in the case, Anntoinette Richmond, 44, the corporations controller, has been charged with one misdemeanor count of continuing employment of an unauthorized alien.

This case should serve as a reminder to employers that knowingly hiring illegal aliens violates federal law, said U.S. Attorney Brower. Companies and their managers who engage in such conduct are on notice that violations will be prosecuted and that the criminal penalties can be significant.

This investigation clearly shows our resolve to pursue those who willfully violate our nations hiring laws, regardless of their place on the corporate ladder, said Assistant Secretary Myers. On television, criminal cases are wrapped up in an hour; but in real life, these investigations are complex and can take months, or even years, to build. We will invest whatever time it takes to ensure that those who flout the law are brought to justice.

In September 2007, ICE agents executed federal search warrants at the 11 McDonalds restaurants owned by Mack Associates in the Reno area and at the franchisees corporate office. During the operation, agents encountered 58 illegal aliens who were working illegally at the McDonalds restaurants. The illegal alien workers were arrested on administrative immigration violations and processed for removal. Approximately 30 of those workers have been returned to their native countries. The remaining illegal workers were provided with documentation allowing them to remain in the United States pending the outcome of the criminal investigation.

Since its establishment in 2003, ICE has dramatically enhanced its efforts to combat the unlawful employment of illegal aliens in this country. ICE's comprehensive strategy for worksite enforcement is aimed at promoting national security and public safety, protecting critical infrastructure, and ensuring fair labor standards.

Thus far in fiscal year 2008 (October 2007 through July 11, 2008), ICE has made 937 criminal arrests in connection with worksite enforcement investigations. Of those, 99 involve owners, managers, supervisors or human resources employees who face charges ranging from harboring to knowingly hiring illegal aliens. In addition to the criminal arrests, ICE has made more than 3,500 administrative arrests for immigration violations during worksite investigations in that same time frame. Last year, ICE made more than 4,900 arrests in worksite enforcement cases, including 863 involving criminal violations. Last years figure represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. Furthermore, in fiscal year 2007, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments as a result of worksite related enforcement actions."

Sheer Pandelerium

The title, a Jeff Foxworthy quote, aptly describes the current state of workplace regulation nationwide.  In the past week, I had conversations with immigration attorney friends in different states and each made essentially the same comment: with all the changes occurring in their OWN state and hardly keeping up, how on earth am I keeping the i9 Advantage regulatory map current??  My response: I'm NOT! )-:

Much to my embarrassment, our map is less than perfect simply because the amount of time required to monitor I-9 and employment verification legislation being churned out en masse by state legislatures is simply more than I can dedicate to the mission.  Now, that being said, I can tell you this:  I am not aware of anyone out there with a more current and up to date legislative map.  But is it "real time"?  No way, Jose.

That'll change soon.  We are looking at a variety of strategies to cope with the workload and are aware that being the best around isn't enough...our clients, both big and small, need 100% accuracy they can rely on, and so we press on.

In the meantime, amidst this confessional, remember this much: if you want to know what is happening with employment verification legislation nationwide, your best -yet still imperfect -- resource can be found at www.i9advantage.com.

If Imitation is the Sincerest Form of Flattery...

...well, then www.i9advantage.com has every right to be blushing: our competition is starting to look, well, a LOT more like us!  As we scour the Web daily to keep our clients and readers up to date with the latest developments in workforce compliance, part of our searches includes our competitors.  Funny how the release of that priceless, excruciatingly-difficult-to-design-and-execute State Legislative Map has triggered a whole bunch of lookalike maps on other sites (albeit linked to the same erroneous information as before in most cases.)   The fact is that a substantial amount of information we gather comes from attorneys, agency officials, and others those of us at i9A have befriended in our two-plus decades of trying to keep employers safe and sound.  As an attorney with a considerable investment in time in the development of our protected intellectual property, you know what I think about all this "borrowing" from our information?

I think it's GREAT. 

Honestly.  I believe that the situation in I-9 compliance is SOOOOO disastrous and the stakes so high that each time ANYONE sounds the trumpets of new information  -- even if that information is something they cut and pasted out of our own website -- it is good for U.S. employers.  It's not just that there is more than enough business to go around for those of us involved in compliance; it's that the mainstream media and business publications seem more intent on pumping out the tabloid-like tales of raids (okay, well, alright...just like the one I wrote about a minute ago right here...(-:) than on matters of substantive compliance of use to employers.  In other words, the more people there are talking about this, the more employers will wake up and realize that a comprehensive I-9 management solution is no longer a luxury but an indispensable necessity.

Remember this: i9 Advantage is the ONLY I-9 compliance solution designed by in-house, full time programmer/partners AND legally monitored by a grizzled old compliance attorney who does this full time as well (yours truly).  If you want compliance straight from the horse's mouse, write me.  And for those of you "borrowing" so enthusiastically from us, an invitation:

Try i9advantage as your technology and not only will your service quality and sales...

...but you'll sleep better at night knowing you did the right thing. (-:

ICE Raids: Close to Home

[NOTE: first of all, a quick apology to those of you who expressed concern over the absence of blogs for the past couple of weeks; I am quite fine and in fact, better than when I last wrote you.  I took two weeks off to take the U.S. Coast Guard 100 Ton Captain's License course I've been wanting to take since I was a wee lad...and I passed!  I should have told you what I was up to so the greatly exaggerated rumors of my death could have been prevented...but thanks for the love!- JEL]

The Associated Press reported Friday that 69 people were picked up in what I believe to be among the first-ever raids targeting a temporary employment agency.  More on the raids in a minute, but I will begin by telling you that I see this as a continued step toward increased enforcement in places previously "respected" by the USG as easy targets.  Consider your local Home Depot, where no doubt dozens of unauthorized workers gather every morning, along with U.S. workers looking for day labor.  In this season of economic chaos, one would think the administration would take the circumstances for which it is ultimately responsible under consideration, but not this administration.

Unfortunately for Jones Industrial Network, the Baltimore based employment agency, finding undocumented workers trying to make a living proved to tempting for D.C. ICE.  And it wasn't just the workers who were seized: the agency's account containing $600,000 was also grabbed by the feds.  Even more interesting:

ICE not only searched the agency, but three other businesses for whom the agency provided staffing.

Employment verification is no longer a luxury, folks, and as this latest enforcement effort shows, as far as ICE is concerned, the buck simply does NOT stop anywhere.

Buncha Stuff....some good, some scary...

...GOOD GRIEF what have I gotten myself into?  Here I am thinking this blog will be a nice little writing outlet but a hyper-caffeinated Chertoff and minions have me playing Headline News...here's the latest from that wacky cast of characters in your national capitol...

-USCIS announced today that on June 16, 2008, it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.  I know a lot of good folks who will smile at that one. (-:

-The Washington Times yesterday FINALLY relayed the news of the federal contractor mandate with E-Verify days after your faithful immigration bloodhound reported it.  Am I cool or what?  I outscooped a Washington newspaper on something that happened in Washington...while sitting in Gainesville. Gotta love the Internet.

-This is actually from March guys but I don't think I read it before and if I did I didn't report it:  Chertoff -- who has in my book evolved into one of those people known by a single name (e.g., Nosferatu, Godzilla, Prince, Nostradamus, etc.) -- let it be known that fines for violating federal immigration laws would increase by "nearly 25%".  That means that the maximum civil penalty is going from $11,000 to $16,000 for multiple violations.

Suggestion:  CALL ME.  We can get your small-midsize company audit ready for less than the five grand increase in the penalty!

HSA's Chertoff: The Heat and Raids will Continue

Yesterday was a busy immigration day in Washington: not only did the President finally invoke the long-promised mandate of requiring E-Verify from all federal contractors, but two of his execs hunkered down for a rather verbose press conference dubbed the "State of Immigration Address".  Homeland Security Secretary Chertoff (a/k/a Bush's lead immigration enforcer) and Commerce Secretary Gutierrez (who appeared more because of his surname than because of his contributions to the issue at hand) waxed poetic on a bunch of stuff, so I'm culling the "Employer Relevant" nitty gritty for you from the transcript, write me if you have questions...

On 2-year EADs- Employment Authorization Documents will be issued with a 2 year validity period beginning later this month, doubling the current limit of one year and making stressed out adjustees a lot less stressed.  Good job, Mr. Chertoff, given that the promised processing timeframes are rarely realized and a lot of folks have to sit out employment while waiting for the renewal of timely filed EAD extensions.

On State Legislation- Chertoff cited the state of Washington, which is currently issuing its own version of an approved, enhanced driver’s license that will be acceptable at the border. New York has announced that it has completed its business plan to begin producing those enhanced driver’s licenses. [Comment: I remember when the concept of federal sovereignty would have made this state involvement an outrage in D.C.; talk about a tacit admission of federal failure in immigration...!]

On E-Verify: Mr. Chertoff was positively giddy about the system, calling it "a tremendous success".  Unfortunately, his reasoning is a little loopy, and he seems to fail to grasp the connection between increased E-Verify usage and the fact that HSA has terrorized the nation with raids, insuring front page comments.  His words:

"The proof of the pudding is the marketplace itself. Every week on average, about a thousand new employers join this program. And I will tell you that at this point, I will estimate that is almost -- maybe actually more than ten percent of the new hires being hired in the United States are currently being run through this E-Verify system...The system works. Of those workers who are legal, 99.5 percent of them roughly are verified essentially instantaneously. And if those workers who have a mismatch -- legal workers who we estimate to be about a half a percent, they are able generally to resolve their issue within less than two days."

[NOTE: I respectfully disagree with Mr. Chertoff and so do all the organizations tracking the system, but it IS improving.  Unfortunately, these numbers still represent a small fraction of U.S. employers and E-Verify remains a complex and user-unfriendly application; that's precisely the reason behind the rush to implement full-spectrum compliance tools such as our own i9 Advantage]

On Raids, Enforcement, and Nailing the Big Guys:  If there was any hope that in its waning months the Bush Administration was going to lay off the raids and focus on improving employer education, Mr. Chertoff calmly and quickly dispensed with any such illusions:

"Finally, we are going to continue to keep the pressure up on employers and on illegal aliens by bringing significant cases. As you know recently we brought a case against a meat-processing operation in Iowa. Almost 300 immigrants, illegal immigrants pleaded guilty to using fraudulent documents to get their jobs in an Iowa meat-processing plant. That means they took the identities of innocent Americans and misused those identities. And at least in some instances, caused damage to the innocent American whose identity was stolen.

For those who say that we are only focusing on the illegal workers themselves, I point out that last year we had over 90 employers, or those in a supervisory chain who were convicted of crimes. We have had one CEO or President of a company sent to jail for 10 years. We have had recent conviction of a union official from the United Food and Commercial Workers union for his involvement with the activities at --.

We will continue to pursue employers. I know these cases take a little bit longer. There is a -- it is always more difficult to work up the chain. I can tell you as an old organized crime prosecutor and as an old drug prosecutor, you always start with the bottom ring first, then you work your way up to the top ring. But I guarantee we are continuing to work on making cases against that top ring and we will do so whenever the evidence supports bringing that kind of a case."[Emphasis supplied]

No punches pulled there, eh?  Here are some interesting excepts from the Q&A that followed:

Question: Secretary Chertoff, about the executive order on E-verify for federal contractors, do you have somewhat of a number of how many contractors that would involve and how many workers potentially?

Secretary Chertoff: I think we were potentially talking about hundreds of thousands, if not millions of workers. This is going to apply to contractors who are getting a new contract. Once this comes into effect they're going to be required to run all their employees through E-verify. Or if they have a contract and they're going to bring new employees onto the contract, they're going to have to do that.

Since I can' t predict what contracting is going to be like in the next two or three years I can't give you a precise number, but it's going to be at a minimum hundreds of thousands and I think maybe millions of people will be run through that program.

Question: Can you tell us whether this will cover subcontractors as well contractors?

Secretary Chertoff: I think now we're getting into exactly the area where we're going to wind up having to write the detailed regulation. There are all kinds of issues about what the contracting entity is, so we're going to get into all kinds of topics that will be fascinating for the lawyers. But I'm not going to try to give the legal analysis from up here.

The basic principle is this: if you're working for the federal government and you're being paid with federal taxes you ought to make sure that you're employees are obeying federal law when it comes to their employment authorization, and this executive order as implemented in detail by the regulation will do precisely that.

Question: One of -- for one, on the contractors, number one, the E-verify is voluntary? Is it voluntary for them or is it --

Secretary Chertoff: No.

Question: -- going to be mandatory for them?

Secretary Chertoff: No, for federal contractors who are getting new contracts who are putting new employees on existing contracts, it's going to be -- it's not going to be voluntary. They will have to do it as a condition of getting the contract.