USCIS « Richard A. Gump Jr. PC Immigration and Nationality Law

The Business of Texas

April 23, 2015

Filed under: Immigration — Tags: CIR, Comprehensive immigration reform, DACA, E-Verify, employers, FAR, I-9, I-9 audit, ICE audits, illegal aliens, immigration, Immigration Attorney, Texas Association of Business, USCIS, verification — drgump @ 8:13 pm

Texas is known as a business friendly state – low taxes, moderate regulations, and a good supply of workers. When it comes to immigration we have a mixed bag – (1) immigrants willing to work but may be here illegally and may have a low level of education, (2) resident tuition is available to immigrants but a proposal to abolish it if the individual does not have legal status has been introduced, and (3) local law enforcement focus on crimes, not immigration status but a proposal to forbid “sanctuary cities” has been introduced.

The proposals to limit resident tuition to those with legal status on its face makes sense until we realize it may not be wise to limit the education of children who don’t have status. Likewise, we don’t need to inhibit police efforts to solve crimes in the Hispanic communities by requiring them to check everyone’s immigration status.

We should be practical when it comes to educating children brought to the U.S. at an early age as well as supportive of police who want to focus on fighting crimes rather than be immigration cops frightening entire Hispanic communities.

Now we have a new immigration issue in the form of Executive Order No. RP-80, which requires state agencies under the direction of the governor, and contractors of such agencies, to use E-Verify for current and prospective employees. The problem for employers (the State of Texas agencies as well as private employers with contracts to do work for such agencies) is that federal law is clear that employer who sign up for E-Verify can only use it to verify newly hired employees except in certain limited circumstances (e.g. federal contracts under FAR rule). We don’t need this sort of confusion in Texas. While private attorneys and even the federal government agency responsible for E-Verify (USCIS) have pointed out the inconsistency to the governor’s office, RP-80 remains in effect. We encourage business associations, in particular the Texas Association of Business, which understands and promotes the need for fair and consistent immigration benefits and enforcement, to petition the governor’s office to rescind or amend RP-80 to conform with federal law.

Legal immigration is a net benefit to Texas businesses by encouraging entrepreneurs, trade and investment, as well as creating and filling jobs needed by employers. E-Verify is a wonderful tool to assist employers in determining whether prospective employees are authorized for employment but it must be enforced with one set of federal rules, without conflicting state rules.

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Business Immigration Flash – Two Items to Consider

April 16, 2015

Filed under: Immigration — Tags: DFW, employers, EVerify, H-1B, H-1B cap, H-1B Cap 2016, I-9, I-9 audit, Immigration Law, Nonimmigrant visas, US Immigration, USCIS, verification, work authorization, Worksite Compliance — drgump @ 7:56 pm

Recruiting, hiring and verifying a talented and legal workforce in a burgeoning economic hotspot like the Dallas Fort Worth Metroplex is a continuing challenge for employers.

H-1B Visas. The competition for international talent is strong in the Dallas Fort Worth Metroplex according to a report from the Brookings Institute. H-1B visas for professionals and persons in a specialty occupation are limited by a federal quota. DFW employers had 19,824 H-1B approvals during fiscal year 2013-2014, second only to New York in metropolitan areas and ahead of the Silicon Valley region. Statistics for fiscal year 2014 – 2015 are not yet available, but 172,000 petitions were filed in hopes of receiving one of the 65,000 visas available for that fiscal year. The USCIS is completing its acceptance of H-1B visa petitions this week for fiscal year 2015 – 2016. Planning ahead and knowing the rules are paramount in being successful in this competition. H-1B wage and public file rules are strict and employers are subject to audits even after the visas are granted.
E-Verify and Texas State Agency Contracts. E-Verify, the online electronic system for verifying employees, keeps gaining steam (500,000 employers currently enrolled at 1.4 million hiring sites, with 1,400 new employers joining weekly). E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. Is the Texas Executive Order RP 80 (December 3, 2014) requiring all state agency employees and companies (including subcontractors) doing business with Texas state agencies to use E-Verify for all current and new hires legal? The general rule is that only new hires can be run though E-Verify with the exception of the Federal Acquisition Rule. Employers with state agency contracts in Texas are encouraged to discuss this issue with legal counsel before acting.

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A Note on the H-1B Visa Cap

April 15, 2015

Filed under: Immigration — Tags: CIR, Comprehensive immigration reform, employers, H-1B, H-1B cap 2015, immigration, Immigration Attorney, Immigration reform, STEM, US citizenship, USCIS — drgump @ 8:03 pm

Why are we capping the entry of professionals and entrepreneurs who create jobs by developing technology and building businesses that enlarge the overall economy?

It hasn’t always been this way. Before 1990 there was no lottery. If you were of distinguished merit or a professional you could get an H-1 visa without a cap in numbers or a particular salary requirement.

Companies constantly complain about the inability to attract foreign talent to fill “C” level positions. Despite the launch of StartUp America in 2011 by President Obama, entrepreneurs have a very difficult time finding an appropriate visa to develop their ideas. Startup America is a White House initiative that was launched to celebrate, inspire, and accelerate high-growth entrepreneurship throughout the nation:

“Entrepreneurs embody the promise of America: the idea that if you have a good idea and are willing to work hard and see it through, you can succeed in this country. And in fulfilling this promise, entrepreneurs also play a critical role in expanding our economy and creating jobs.”

—PRESIDENT BARACK OBAMA, JANUARY 31, 2011

But here we are today with a story from Bloomberg discussing how the co-founder of Instagram seriously considered packing up and going home in 2010 because he could not get a work visa. He finally received an H-1B visa but it took longer to get the visa than it did to develop Instagram!

We must go beyond words and implement new laws and policies that will move our economy forward and create jobs for Americans, and foreign talent often is needed to do that.

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In the US legally but unable to work? H-4s wish for work authorization

September 18, 2014

Filed under: Immigration — Tags: CIR, H-1B, H-1B cap, H-4, immigration, Immigration Attorney, USCIS, work authorization — drgump @ 7:51 pm

http://money.cnn.com/2014/09/12/smallbusiness/h4-visa-immigration/

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Three Little Words All Employers Hate to Hear

August 20, 2014

Filed under: Immigration — Tags: CIR, Comprehensive immigration reform, DHS, employers, I-9, I-9 audit, ICE, ICE audits, illegal aliens, immigration, Immigration Attorney, Immigration reform, liability, NOI, Notice of Inspection, USCIS, verification — drgump @ 7:48 pm

Notice of Inspection

Those are three words an employer never wants to hear.

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division has issued more than 10,000 Notices of Inspection in the last four years alone. Companies that receive an NOI will undergo an extensive review of their I-9 forms, policies and procedures and, at the end of the day, could receive significant financial fines due to errors in I-9 completion and retention.

Through their attempts to hire a legal workforce, while at the same time weeding out illegal employees from their current personnel, employers continue to remain caught in legally questionable situations.

One of the best solutions to combat the formidable employment verification process is through the use of E-Verify, a free, web-based program that allows employers to further verify their employees’ employment eligibility once hired. It is important to note that E-Verify does not replace Form I-9 compliance; the I-9, whether a hard copy or electronic version, must still be completed. However, the added benefit of E-Verify usage is that this government program compares the data from the employee’s completed Form I-9 with that of the Social Security Administration as well as the U.S. Department of Homeland Security (DHS). This government initiated program expands the compliance initiative aimed at establishing a wholly legal workforce.

While numerous benefits exist to utilizing E-Verify, such as an improved level of Form I-9 compliance and extra security in knowing that the employee’s I-9 information matches that in the government’s database, it is important to note that employer implementation of E-Verify does carry with it additional concerns. Recently, the U.S. Citizenship and Immigration Services (USCIS) has implemented data-mining strategies to track E-Verify users who are potentially violating immigration laws. When certain trends are discovered through data-mining, USCIS shares its findings with other government agencies, such as Immigration and Customs Enforcement (ICE) and the Office of Special Counsel (OSC), for investigatory purposes.

Current data-mining trends include:

Verifying existing employees
Failing to verify employees within three days of hire
Failing to print TNC notices
Intermittent use of E-Verify
Employer requests specific documents from Lawful Permanent Residents

Consequently, employers must be prudent in their compliance endeavors when utilizing E-Verify, as enrollment alone does not safeguard companies from future investigations and liability.

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Deferred Action And Diploma Mills

March 18, 2014

Filed under: Immigration,Standard,Uncategorized — Tags: CIR, DACA, DACA renewal, Deferred Action, Diploma Mills, immigration, Immigration Attorney, Immigration reform, USCIS — drgump @ 7:19 pm

A high school diploma is one of the most important documents to have in today’s society. Almost every job will require an individual to have either a high school diploma or a GED and is essential for any college and/or university enrollment. Yet many students drop out each year due to personal responsibilities and/or lack of effort.

Deferred Action for Childhood Arrivals (“DACA”) was introduced in the summer of 2012 by President Obama. DACA is a program that gives work authorization to children who were brought to the United States by their parents at a young age and are in the United States illegally. The program provides unrestricted work authorization to individuals who qualify, and also allows young people to obtain a social security number and a driver’s license.

Young adults must meet several criteria to be eligible for the program. One of the criteria is that the applicant must be enrolled in school or a GED program, or have a high school or GED diploma.

DACA has inspired many students to further their education and enroll in an educational program. Unfortunately, many are looking to the internet for an easier way to get a high school diploma instead of enrolling in a credible school or GED program. What many students find are online programs that promise a legitimate high school diploma (equivalent to a real high school diploma or GED)…which ultimately turns out to be an internet “diploma mill”. Diploma mills charge a flat fee for a high school diploma and mislead people into believing that the diplomas are legitimate and accepted by universities and employers across the United States.

Degree mills love to use official-sounding terms to impress potential students. These terms often sound good, yet mean little in terms of educational quality. Be wary of these terms and phrases: “authenticated,” “verifiable,” “licensed,” “internationally approved,” “notarized,” and “accredited by UNESCO.”

Most online programs claim that their diplomas are legitimate but before enrolling in a program that could turn out to be a fake, it is important to review the following:

Is the school accredited? – The site may contain information and links to the school’s “accreditations”. Unfortunately, the majority of internet degree mills are accredited, but not by an agency recognized by the Council on Higher Education Accreditation (CHEA) or the U.S. Department of Education. The problem is that they are accredited by bogus agencies that they themselves have created.
Does the school ask for transcripts, academic records or other evidence of the individual’s previous education?
Does the website over-emphasize the ease and speed of obtaining a high school degree (“To get your high school diploma you only need to pass our high school equivalency test and pay $299.99″)
Is any attendance required of students, either online or in class?
Are few assignments required for students to earn credits?
Is one of the requirements for graduation possession of a valid Visa or MasterCard?
Does the operation provide any information about a campus or business location or address?
Does the operation provide a list of its faculty and their qualifications?
Does the operation have a name similar to other well-known colleges and universities?

If you have suspicions regarding the validity of an online program, you can always contact your local college or university and ask if the program will be accepted by the college as evidence of a high school diploma or GED.

To find legitimate programs in your area, simply contact your local school district and ask about high school completion and GED programs. Most offer day and night classes as well as flexible schedules. If you must use an online program, do your homework and make sure you do not become a victim of a diploma mill.

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