Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

This week, Rep. Frank Kratovil (D-MD) introduced the “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627). The bill amends section 274A of the Immigration and Nationality Act (8 U.S.C. § 1324a(e)(4)(A)) by establishing criminal penalties—and increasing the existing civil penalties—that can be levied against individuals with “hiring authority” who employ unauthorized aliens.  Continue reading at Littler's Global Immigration Counsel blog.

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The United States Citizenship and Immigration Services’ (USCIS) Associate Director for Service Center Operations has issued a detailed memo (pdf) regarding how to determine, when evaluating H-1B visa petitions, whether an employer-employee relationship exists and will continue to exist. The memo, which is addressed to USCIS Service Center Directors, discusses:

• scenarios that do and do not represent a valid employer-employee relationship;
• documentation to establish the employer-employee relationship;
• requests for evidence to establish the employer-employee relationship; and
• regulatory compliance.

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Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements.

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Rep. Solomon Ortiz (D-Tex.) and Rep. Luis Gutierrez (D-Ill.) have introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 (H.R. 4321), an immigration overhaul bill they hope will receive serious consideration early next year. In October, Rep. Gutierrez outlined a set of core principles that he planned to include in his reform legislation. Among those principles included in the new bill are a re-vamped employment verification system, increased penalties for employer noncompliance, overhaul of the employment-based visa system, and anti-discrimination provisions.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. According to the agency’s Fall 2009 Regulatory Plan (pdf), a subset of the Agenda which details the regulatory measures the DHS deems most important, the following actions, among others, are slated to take place within the next 12-month period:

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Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Under the terms of the Employ America Act, no guest worker visa petitions would be approved unless the employer provides written certification that it has not provided a notice of a mass layoff pursuant to the Worker Adjustment and Retraining Notification (WARN) Act in the past 12 months, and does not intend to do so. The provisions of the WARN Act apply to employers with more than 100 employees that lay off at least a third of their workforce and 50 or more workers. If such a large employer has instituted a mass layoff, any visa applications already approved would expire 60 days after the WARN notice is provided. An employer would be exempt from this requirement if it provides written certification that the total number of its citizen workers employed in the United States have not and would not be reduced as a result of the mass layoff.

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At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.  Continue reading at Littler's Global Immigration Counsel blog.

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

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On October 28 President Obama signed into law the Department of Homeland Security Appropriations bill (H.R. 2892), a measure that includes provisions extending the E-Verify employment verification program by three years, and allocating $137 million to the program for its operation and improvement. In addition, the legislation extends the EB-5 investor visa program, which provides visas to individuals who invest at least $1 million in a new commercial enterprise which will benefit the U.S. economy and create at least 10 full-time jobs. The visa programs for religious workers and medical students are also extended. The final version of this appropriations bill omitted more stringent provisions that would have made E-Verify and the EB-5 investor program permanent, and allowed employers to verify the employment status of current employees. The bill appropriates $139 million to the U.S. Immigration and Customs Enforcement (ICE) to hire 100 new special agents to conduct worksite enforcement investigations and employer audits.

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.

The bill will allocate $137 million to the E-Verify program – which is extended by three years under this bill – for its operation and improvement. In addition, the legislation extends the EB-5 investor visa program, which provides visas to individuals who invest at least $1 million in a new commercial enterprise which will benefit the U.S. economy and create at least 10 full-time jobs. The visa programs for religious workers and medical students are also extended by this legislation.

Notably, the Senate conference report dropped more stringent E-Verify provisions that the Senate had approved in July.  Those provisions would have made the E-Verify and EB-5 programs permanent, and allowed employers to verify the employment status of all employees.

The president is expected to sign the DHS appropriations bill into law.

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Rep. Luis Gutierrez (D-IL), chair of the Congressional Hispanic Caucus Immigration Task Force, has outlined a set of core principles that he plans to include in a comprehensive immigration reform bill. In a press release issued October 13, Gutierrez stated:

We simply cannot wait any longer for a bill that keeps our families together, protects our workers and allows a pathway to legalization for those who have earned it. It is time we had a workable plan making its way through Congress that recognizes the vast contributions of immigrants to this country and that honors the American Dream. I am preparing such a plan, and will introduce it in the near future.

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The Department of Homeland Security (DHS) has published in today’s Federal Register a final rule rescinding the controversial “no-match” rule. The rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – created safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. In essence, the rule would have required that no-match letters or ICE notices be accompanied by a set of procedures for employers to follow to address any flagged identification discrepancies. Following the prescribed steps would allow an employer to avoid a finding that it had constructive knowledge of a worker’s illegal status, thus incurring civil and criminal liability under the Immigration Reform and Control Act of 1986.

According to DHS, the agency will instead focus its resources on alternative programs to reduce unauthorized employment, including E-Verify and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs.

The final rule is effective November 6, 2009.

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The Department of Justice (DOJ) has awarded $723,000 in grants to various groups nationwide to help combat immigration-related employment discrimination. These grants, administered by the DOJ’s Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), will range from $48,000 to $87,000 for each of the 12 named recipients. According to a press release, these funds will be used to assist discrimination victims; conduct seminars for workers, employers and immigration service providers; distribute educational materials in various languages; and place advertisements in local communities through both mainstream and ethnic media to educate workers and employers about their rights.

In a statement, Loretta King, Acting Assistant Attorney General for the Civil Rights Division, said: “[a]warding grants to professional and community-based organizations better enables us to educate workers and employers about their rights and responsibilities under federal immigration law,” adding, “[o]ur grant recipients, who are well known and respected in their communities, will collaborate with us to prevent immigration-related discrimination in the workplace.”

The twelve groups slated to receive DOJ funding for the immigration-related anti-discrimination initiative are: the Arizona Attorney General’s Office, Civil Rights Division; Asian Pacific American Legal Center of Southern California; Catholic Charities of Dallas; Catholic Charities, Diocese of St. Petersburg, Fla.; Colorado Legal Services; Legal Aid Foundation of Los Angeles (LAFLA); National Farm Worker Service Center; National Immigration Law Center (NILC); New York City Human Rights Commission; Texas RioGrande Legal Aid; University of Iowa; and the Washington Farm Labor Association.

Earlier this month, U.S. Attorney General Eric Holder revealed that with the increased 2010 fiscal year DOJ budget, the agency intended to substantially enlarge the Civil Rights Division and improve enforcement of antidiscrimination laws.

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USCIS has released a “Supplemental Guide for Federal Contractors” (PDF) regarding the E-Verify program.  The guide contains information concerning:

• applicable regulations;
• instructions on verifying new and existing employees via Form I-9;
• E-Verify enrollment and participation as a federal contractor;
• exemptions and exceptions for qualifying contractors; subcontractors, independent contractors and affiliates;
• enrollment instructions for organizations that qualify for exceptions;
• enrollment instructions for contractors not yet enrolled in E-Verify; and
• instructions for contractors already enrolled in E-Verify.
   

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With the rejection of an 11th–hour appeal, a Maryland district court judge has permitted the new E-verify requirements for federal contractors to become effective September 8, 2009. Federal agencies are now permitted to require federal contractors to use E-Verify to confirm the work eligibility status of their employees. 

For more information, see Littler's ASAP:  Federal Contractors: Be Aware of New E-Verify Requirements in Contracts by Jorge R. Lopez, Joshua Roffman, Aimee Clark Todd and Russell C. Ford. 

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As reported by Daily Journal of Commerce, business groups have appealed the August 25 decision by a federal district court in Maryland upholding the E-Verify Federal Contractor Rule. As previously discussed, the rule is set to take effect on September 8, 2009. If government officials do not voluntarily postpone the effective date, lawyers for the business groups have indicated that they will ask the courts to do so.  Continue reading at Littler's Global Immigration Counsel blog.

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The US Citizenship and Immigration Services (USCIS) announced on August 27 that the expiration date of the current version of the I-9 (Employment Eligibility Verification) form has been extended for three years, until August 31, 2012. This means that employers can use I-9 forms that have a revision date of either February 2, 2009, or August 7, 2009.  Continue reading at Littler's Global Immigration Counsel blog. 

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The U.S. District Court for the District of Maryland has upheld the E-Verify Federal Contractor Rule, scheduled to become effective September 8, 2009, that will require federal contractors to enroll in E-Verify within 30 calendar days after being awarded a covered contract and to start using the system within 90 days from the date of enrollment. Continue reading on Littler's Global Immigration Counsel blog.

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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country. The No-Match rule – which has been enjoined by a lawsuit filed in 2007 and therefore never implemented – provides that No-Match letters be accompanied by a set of procedures for employers to follow to address the flagged identification discrepancies and avoid a finding that they have constructive knowledge of a worker’s illegal status and thus civil and criminal liability under the Immigration Reform and Control Act of 1986. Shortly after this rule was introduced, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) filed a lawsuit challenging, among other things, the sufficiency of the No-Match letter to put an employer on notice of a potential illegal hire. A U.S. District Court in California granted the plaintiff’s preliminary injunction blocking the rule’s enforcement. In 2008, the DHS issued a supplemental final rule clarifying certain aspects of the No-Match rule, but did not change the safe-harbor procedures. Neither the final No-Match rule nor the supplemental final rule have been enforced.

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Legislation introduced in both the House and Senate aimed at reducing illegal immigration would expand the E-Verify employment verification system, and require its use by all employers. The Secure America through Verification and Enforcement Act (SAVE Act) (H.R. 3308, S. 1505) was originally introduced in 2007, but died in committee. The current bills introduced by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-Ark.) remain substantially similar to the earlier versions. Essentially, both bills contain three components to curb illegal immigration, the second of which would impact employers. Both bills would mandate the use of E-Verify, although the Senate bill provides for a slightly longer timeframe in which all employers must be in compliance with the Act.

Under the terms of the House version of the SAVE Act, over a four-year period all employers would be required to use E-Verify to check the employment eligibility of their potential and current hires. The Senate version would allow five years for compliance. The federal government, federal contractors, and large employers (those with more than 250 employees) would be required to use E-Verify to check the status of applicants within one year of the bill’s enactment under the House version, and two years for the Senate. Smaller employers would be phased into the system more gradually. Companies employing between 100 and 250 employees would be required to use E-Verify within two years (three under the Senate bill); those with at least 30 but few than 100 employees would have three years to comply with the program under the House bill, and four under the Senate version; all other employers would have to be in compliance within four years (five for Senate SAVE Act) of the bill’s enactment. All employers would also be required to verify the employment eligibility of current employees within four years according to the terms of the House legislation, and five for the Senate’s.

The House version of the SAVE Act has been referred to the House Committees on Homeland Security, Judiciary, Ways and Means, Education and Labor, Oversight and Government Reform, Armed Services, Agriculture, and Natural Resources. The Senate companion bill has been referred to Senate Finance Committee.
 

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On Friday the Senate confirmed the nomination of Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS), the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. In addition to establishing immigration-related policies and services, the USCIS adjudicates the petitions and applications of potential immigrants and guest workers.

President Obama announced his nomination of Cuban-born Mayorkas in April. In July, the Senate Judiciary Committee approved the nomination. In his testimony before the Judiciary Committee, Mayorkas listed as one of his first priorities if confirmed as USCIS Director: “ . . to strive to improve the Agency's fraud prevention and detection operations, increase collaboration with U.S. Immigration & Customs Enforcement (ICE) and other law enforcement agencies to respond to fraud, and improve the efficiency and accuracy of the E-Verify system.”

Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California.  At the age of 39, Mayorkas became the youngest U.S. Attorney in the country.  Mayorkas earned his undergraduate degree at the University of California, Berkeley in 1981, and his law degree from Loyola University in 1985.
 

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Last week the Senate voted to accept an amendment (S. AMDT. 1375) to the Department of Homeland Security’s (DHS) Appropriations Bill (H.R. 2892) that would prevent the DHS from revoking its “No-Match” Rule. This rule – which was blocked by court order and never implemented – established procedures that employers could follow in the event they receive notices from the Social Security Administration (SSA) or DHS informing them that their employees’ names and Social Security numbers listed on W-2 earnings reports do not match SSA records. According to Sen. David Vitter (R-La.), who introduced the amendment at issue, the No-Match rule “provided clear guidance on the appropriate responsibility of the employer, the appropriate due diligence the employer should undertake if they receive a letter from the Social Security Administration informing them there is not a proper match under those records,” and is therefore necessary to address illegal employment and clarify an employer’s responsibility in the event they are put on notice that they might be employing an illegal alien.

The DHS, on the other hand, has faulted this process on the grounds that the No-Match letters are sent months or even a year after the information is initially provided. In addition, according to the DHS, identification information is often called into question due to typographical errors or unreported name changes. On July 8, the DHS announced its intent to rescind the 2007 rule, and instead support E-Verify, which the agency claims will result in more timely and accurate No-Match letters.

Sen. Vitter’s amendment would essentially block the DHS from acting on this rule by prohibiting funds provided in the appropriations bill from being used to rescind the regulation. The amendment would also prevent further delays in implementing the no-match rule, which has been blocked by litigation filed by both organized labor and business groups.
 

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Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Because, Schumer alleged, identification can be easily faked using stolen Social Security numbers, employers who accept documentation on good faith have no guarantees under the current system that they won’t be targeted by Immigration and Customs Enforcement (ICE) for hiring illegal aliens. Schumer has been a strong proponent of a biometric-based federal employment verification system. Schumer’s motion to table Sen. Sessions’ amendment was rejected by a vote of 53-44. The House of Representatives’ version of the DHS appropriations bill had included a 2-year extension of E-Verify, so it is uncertain at this point whether a limited or permanent E-Verify extension will be approved in the final appropriations bill.

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On July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year.  Continue reading at Littler's Global Immigration Counsel blog.

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.

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The federal government has told a Maryland judge that it plans to delay for the fourth time the effective date of a rule requiring certain federal contractors and subcontractors to use the E-Verify program. The rule – which would amend the Federal Acquisition Regulation (FAR) to mandate that specified contractors use the electronic employee verification system for current and prospective hires – was initially issued on November 14, 2008, and was to take effect January 15, 2009. Due in part to a lawsuit challenging the legality of the rule, the implementation date was pushed to February 20, then again to May 21 and June 30. The government has requested a stay of the litigation so that the new administration can review the authority of the rule. Pursuant to this request, the government said it would move the start date of the rule until September 8, 2009. A formal announcement of this delay is expected to be published in the Federal Register.

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On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.  Continue reading at Littler's Global Immigration Counsel blog. 

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Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment.

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President Obama has announced his intent to nominate Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS). The USCIS is the agency within the Department of Homeland Security responsible for overseeing lawful immigration to this country. To that end, the USCIS adjudicates, among other things, the petitions and applications of potential immigrants and guest workers.

Born in Cuba, Mayorkas is currently a litigation partner in a private law firm. Prior to entering private practice, Mayorkas served as the U.S. Attorney for the Central District of California, where – at the age of 39 – he began as the youngest U.S. Attorney in the country. In this position, Mayorkas prosecuted a wide variety of cases, including those involving public corruption, investment fraud, civil rights violations, high-tech and computer-related crime, organized crime, environmental crime, and international money laundering. In addition, the National Law Journal has named Mayorkas as one of the "50 Most Influential Minority Lawyers in America."

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act of 2009 (H.R. 2028), will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.  Continue reading at Littler's Global Immigration Counsel blog.

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.  Continue reading at Littler's Global Immigration Counsel blog.

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On April 16, 2009, the U.S. Department of Defense announced that the effective date of the Federal Contractor E-Verify Rule will be delayed until June 30, 2009. To that end, the federal government will include the new E-Verify clause in affected contracts on or after June 30, 2009. The government will also take steps to reach out to affected contractors to bi-laterally modify existing affected contracts on or after that date. Continue reading on Littler's Global Immigration Counsel blog.

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.  Continue reading on Littler's Global Immigration Counsel blog.

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The following summarizes some federal agency happenings this week:

Phyllis Borzi is Tapped to Serve as Assistant Secretary of DOL’s EBSA

President Obama has nominated Phyllis C. Borzi to serve as the Assistant Secretary of Labor for the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA). The EBSA is the organization within the DOL whose mission it is to educate and assist the 150 million Americans covered by more than 679,000 private retirement plans, 2.5 million health plans, and similar numbers of other welfare benefit plans; as well as plan sponsors and members of the employee benefits community.

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The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.  Continue reading on Littler's Global Immigration Counsel blog.

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category.

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A bill introduced this week would debar or suspend contractors that unlawfully employ illegal aliens from federal contracting. The Border Control and Contractor Accountability Act of 2009 (H.R. 1555) authorizes the head of any executive agency awarding a federal contract to debar or suspend the contractor for three years and terminate the contract if it is determined, by a preponderance of the evidence, that the contractor directly employed or had knowledge of a subcontractor’s employment of any worker who is not authorized to work in this country, unless the contractor agrees to fire the employee.

Additionally, this act stipulates that any contractor awarded contracts by the Department of Homeland Security must use the E-Verify employee work authorization verification program.

This bill was referred to the House Committees on Homeland Security and Oversight and Government Reform.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105).  The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  In addition to temporarily extending these immigration programs, H.R. 1105, which is a combination of nine appropriations bills held over from the Bush administration, provides $56.3 billion to the Department of Labor. This amount is more than $2 billion over what the Bush administration had allocated for this agency.

Although the E-Verify program was extended until September 30, Sen. Jeff Sessions (R-Ala.) had offered an amendment to the bill that would have extended E-Verify for an additional five years. This amendment was tabled by a vote of 50-47.

President Obama is expected to sign this bill shortly.

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.

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On February 26, President Obama unveiled his proposed $3 trillion budget. A detailed summary can be found on the White House website. (pdf)  As expected, the budget includes increased funding for various agencies tasked with oversight of employers.

Of interest to employers, highlights of this proposal include the following:

• Funding of $110 million to continue expansion of the E-Verify program.
• Projected DOL discretionary funding increases of $12.7 billion for 2009, and $13.3 billion for 2010.
• Increased funding for the Occupational Safety and Health Administration (OSHA), “enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers.”
• Increased enforcement resources of the Wage and Hour Division “to ensure that workers are paid the wages that are due them.”
• Increased funding for the Office of Federal Contract Compliance Programs.
• The establishment of automatic workplace pensions. Under this plan, a system of automatic workplace pensions would operate alongside Social Security.  Employees would be automatically enrolled in workplace pension plans.  Employers that do not currently offer a retirement plan would be required to enroll their employees in a direct-deposit IRA account that is compatible with exiting direct-deposit payroll systems. Employees would be given the ability to opt out of this program.
• The provision of $145 million to the Justice Department’s Civil Rights Division to strengthen civil rights enforcement against racial, ethnic, sexual preference, religious and gender discrimination.
   

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President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy. 

Secretary Napolitano said:

John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.

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As reported at Workforce.com, Rep. Ken Calvert, R-California, who authored the bill that established E-Verify, was unhappy that a provision requiring companies receiving stimulus funding to sign up for E-Verify did not survive in the $787 billion stimulus package. Representative Calvert stated that “there is no assurance that the jobs created will go to American workers,” and asserted that E-Verify was “stripped out of the bill without discussion or debate.” A separate provision, which would have reauthorized E-Verify, also was excluded from the final stimulus package.

Even though E-Verify did not make it into the stimulus package, Congress is likely to find a way to maintain the program (due to expire on March 6, 2009) until it can be addressed as part of a comprehensive immigration bill.

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Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. If passed, this bill would amend the Immigration and Nationality Act to require E-Verify for all employers. The E-Verify system is currently voluntary, unless mandated by applicable state law.

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The stimulus legislation signed into law as the American Recovery and Reinvestment Act of 2009 (ARRA) by President Obama contains sweeping revisions to the group health plan continuation coverage provisions contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). The ARRA also impacts other areas of employment law. For an in-depth analysis of these changes, see Littler's ASAPs: Stimulus Package: An In-Depth Look at the New COBRA Subsidy in the ARRA by: Steven J. Friedman, Susan K. Hoffman, and J. René Toadvine, and Besides COBRA: What Does the Stimulus Package Have for Employers by: Ellen N. Sueda, GJ Stillson MacDonnell, Patricia A. Haim, and Chadwick M. Graham.

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The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. A third bill would provide employers with a tax credit for hiring unemployed veterans.

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The Senate has approved a modified amendment to the massive stimulus bill (H.R. 1) that substantially limits employers that receive Troubled Asset Relief Program (TARP) funds from hiring employees who hold H-1B work visas. This amendment was sponsored by Senators Bernard Sanders (I-VT) and Charles Grassley (R-Iowa). According to a press release from Senator Grassley’s office, Senate Amendment 306, referred to as the Employ American Workers Act:

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Embedded in the nearly 650-page $819 billion stimulus bill (H.R. 1) that cleared the U.S. House of Representatives yesterday is a provision requiring contractors hired using stimulus funds to use the E-Verify employment verification system. Section 1114 of this bill, as introduced in the House, reads:

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The effective date of the new regulations requiring the use of E-Verify by certain federal contractors has been postponed an additional three months until May 21, 2009.

Fore more information on this announcement, see Littler’s ASAP: Effective Date of Federal Contractor E-Verify Regulation Pushed Back to May 2009 by Jorge R. Lopez, Joshua S. Roffman and Lisa A. Cottle.

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Not even a full month into the year, the new Congress keeps flooding the docket with employment-related bills. Despite organized labor’s push to introduce union-friendly legislation early in President Obama’s term, and the many civil rights and work/family balance bills expected to be introduced, instead, the recent employment-related bills reflect the current financial crisis and rising unemployment. Providing health care and other assistance to the unemployed appears to have taken precedence over the drive for increased union membership and providing for enhanced employee rights and benefits, at least for now.

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A bill that would amend section 274A(e)(4)(A) of the Immigration and Nationality Act to substantially increase employer penalties for violations was introduced last week by Rep. Sue Wilkins Myrick (R-NC). The 10k Run for the Border Act (H.R. 588) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

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A new bill introduced in the House by Rep. David Dreier (R-Calif.) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill. The Illegal Immigration Enforcement and Social Security Protection Act of 2009 (H.R. 98) increases penalties for each hiring offense of up to $50,000, up from fines ranging between $275 and $16,000 under current law. Offending employers could also be liable for deportation costs. In addition, employers would face jail sentences of up to five years per offense, up from the current maximum six-month sentence. The bill likewise authorizes the Secretary of Homeland Security to bring a civil action against an employer who fails to pay the assessed penalty.

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The federal government has agreed to delay the effective date of the E-Verify federal contractor regulation announced in November until February 20, 2009. The delay raises the question of whether President-elect Obama will add the regulation to his rescission list once he takes office.

For more information on this development, see Littler's ASAP: Effective Date of E-Verify Federal Contractor Regulation Postponed Until February 20, 2009 by Jorge R. Lopez, Lisa A. Cottle and Joshua S. Roffman.

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The United States Citizenship and Immigration Services (USCIS) has issued a final rule that revises Form I-9 and the list of documents that are acceptable to prove identity and employment authorization. Employers will be given a 45-day grace period to begin using the new form. Failing to do so may result in fines.

For more information on this interim final rule, see Littler’s ASAP: USCIS Issues Interim Final Rule on I-9 Employment Verification by Jorge R. Lopez and Chadwick M. Graham.
 

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For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees.

Under the current guest worker program, employers are allowed to hire foreign workers only if they cannot find U.S. workers willing and able to do the job, and only if the wages and working conditions they provide do not negatively impact U.S. workers. Previously, the DOL had to certify the employer’s recruitment efforts and wage rates. Under the new rules, an employer need only attest that it has fully complied with the H-2A requirements. This substantially shortens the processing times. An employer who falsifies this attestation is subject to fines (which are increased under the new rules), revocation of labor certification, and debarment from participation in the guest worker program.

Additionally, the DOL rule changes the program’s wage formula. The wage rate is currently calculated using the Department of Agriculture’s quarterly farm labor survey data that is averaged across several regions and agricultural industries. The new rule uses Bureau of Labor Statistics Occupational Employment Survey (OES) data, which is arguably more detailed and takes several regions, occupations and skill levels into account.

The DHS rule, among other things, eases the employer’s limitation on petitioning for multiple, unnamed agricultural workers, allows workers to stay in this country for a longer period of time following visa expiration, and limits worker participants to citizens of a select group of countries.

In general, these rules will likely benefit agricultural employers, as they relax some of the administrative burdens inherent in the H-2A program. Predictably, organized labor has vociferously opposed these changes on the grounds that they make it easier for an employer to bypass recruitment efforts to find available American labor, and allow employers to pay lower wages for all agricultural workers.

The DOL final rule is set to be published December 18 in the Federal Register.  It is anticipated that the final DHS rule will be published around the same time period.
 

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Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment.

Some programs in need of reauthorization by March 6, 2009, however, will likely be extended under the new administration. These include the E-Verify program, Conrad 30 program for physicians working in medically underserved areas, EB-5 million-dollar investor program, and the Religious Workers program. Additionally, Obama has expressed support for a temporary increase in the H-1B visa program as a stopgap measure until immigration policy is overhauled to permit a greater number of foreign skilled workers to receive permanent visas to work in this country.

The extension of E-Verify is apt to include the appropriation of additional funds to make it more accurate and efficient. The Department of Homeland Security (DHS) is expected to step up its efforts to use the E-Verify system as a vehicle to police immigration compliance, in addition to pursuing criminal investigations and indictments against employers that knowingly employ illegal aliens. To that end, I-9 compliance and proactive review of immigration policies will be particularly important in the coming years.
 

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