United States: Immigration Compliance

Last Updated: January 15 2014
Article by David Z. Izakowitz and Jacquelyn E. Stone

At the close of 2013, it remained unclear whether the implementation of long-awaited immigration reform was on the horizon. On June 27, 2013, the Senate passed by a 68 to 32 vote, including 14 Republicans, a comprehensive immigration reform bill. However, it now seems that if any immigration bill emerges from the House, it will be piecemeal legislation. The House Judiciary Committee has passed four bills, each addressing a single issue: the Agricultural Guestworker Act would create up to 500,000 visas for temporary agricultural workers; the Strengthen and Fortify Enforcement (SAFE) Act would require a national strategy for improving border control; the Legal Workforce Act would repeal the current paper-based I-9 system and replace it with an electronic work eligibility check (mandatory E-verify for all); and the Supplying Knowledge-Based Immigrants and Lifting Levels of STEM Visas (SKILLS) Act would provide immigration reform for some foreign nationals educated in the United States. The House Committee on Homeland Security also passed the Border Security Results Act.

At this point, it is hard to predict whether these or any other immigration bills will make it to the House floor in 2014 and even harder to speculate about passage in that chamber. To date, Speaker Boehner has been unable to assemble a majority within the Republican caucus to support any immigration legislation. In addition, none of the bills that have been passed addresses the legal status of 11 million undocumented immigrants, the minimum requirement for most Democratic support.

Worksite Enforcement

The year 2014 will bring continued vigorous enforcement of prohibitions on unauthorized employment, mostly by Homeland Security Investigations (HSI), a part of U.S. Immigrations and Customs Enforcement (ICE). In April 2009, ICE announced a renewed focus on "targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers." ICE has made good on its promise. In federal fiscal year 2012, the last year for which statistics were released, HSI initiated over 3,000 I-9 inspections and made 520 criminal arrests, including arrests of 240 owners, managers, supervisors or human resources employees.

The enforcement program focuses on critical infrastructure facilities. Based on HSI's recent activities, this seems to include food processing plants, and so expect such investigations in the coming year. Employers would be well advised to review and improve their current I-9 compliance program, or, if they do not have one, to implement one as soon as possible. In addition, internal audits of I-9 documentation are strongly recommended.

Green Card Backlogs and Visa Quotas

Without immigration reform, 2014 will no doubt see the continuance of several disturbing trends in temporary work authorization and green cards for foreign workers. The cap or quota for all new employment of foreign professionals in H-1B visa status is set at 65,000 per federal fiscal year, with an additional 20,000 set aside for individuals who have earned graduate degrees in the United States. More applications for new employment in federal fiscal year 2014 were filed in the first week that such applications were accepted than allowed under the cap. The government, therefore, closed applications for the year and conducted a lottery to determine which of the submitted applications would be processed. Expect the same for fiscal year 2015 and plan to file on April 1, 2014.

The situation for temporary workers in positions requiring less than a four-year college education is even worse. The cap for such H-2B workers is only 66,000 and this visa category is generally restricted to seasonal work.

There have also been unfavorable trends with green cards. Over the last year, the processing of PERM labor certification applications (the first step in obtaining most employer-sponsored green cards) by the Department of Labor (DOL) has become far slower and the denial rate far higher. By the end of 2013, the DOL was taking eight months or more to take any initial action on an application. The rate of cases selected for audits was approaching 40 percent, and audits resulted in further delays of six months or more.

As fiscal year 2013 moved on, the DOL's rate of denial of PERM cases increased dramatically. According to statistics recently released by the DOL, in the first quarter of the fiscal year, approximately six cases were approved or certified to every case denied. By the second quarter, that rate worsened to five to one, and by the third quarter, to 3.5 to one.

Quotas also adversely affected employment-based green card applications to the Department of Homeland Security, the last step in the process. Quotas imposed on individual countries have particularly hurt Chinese- and Indian-born applicants. In January 2014, the government will only process green card applications for Indian-born applicants for professionals or highly skilled positions if the PERM labor certification process was started before Sept. 1, 2003. For Indians in positions requiring advanced degrees, the cut-off date is slightly later, Nov. 15, 2004. For China, the waits are not quite as long. For professional positions, the cut-off date for China and all other countries (other than India and the Philippines) will be April 1, 2012. Chinese advanced degree professionals have a cut-off date of prior to Dec. 8, 2008. These cut-off dates are updated on a monthly basis.

Once more, without some immigration reform, there is no reason to expect improvement in these processing times.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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