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Employers’ Immigration Update - No. 22, October 2016

Supreme Court Tied on Expansion of Obama Deferred Deportation Orders

The U.S. Supreme Court’s 4-4 tie in a case appealing a nationwide injunction on the Obama Administration’s plans to expand the Deferred Action for Childhood Arrivals (DACA) and create the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs means the appeals court ruling stands. United States v. Texas, No. 15-674 (June 23, 2016), reh’g denied (Oct. 3, 2016). Under DACA, certain undocumented immigrants who arrived as minors were able to defer deportation and receive employment authorization. DAPA would have allowed parents of U.S. citizens or lawful permanent residents (green card holders) to apply for deferred deportation and employment authorization.

Higher Penalties for Hiring Unauthorized Workers

Employers face substantially increased civil monetary penalties for knowingly employing an unauthorized worker and for certain other immigration-related violations under a U.S. Department of Justice interim rule that took effect on August 1, 2016, and applying to violations occurring after November 2, 2015. The minimum penalty for a first offense of knowingly employing an unauthorized worker will increase from $375 to $539 per worker, and the maximum penalty will increase from $3,200 to $4,313 per worker. The largest increase raises the maximum civil penalty for multiple violations from $16,000 to $21,563 per worker. Paperwork violations can be assessed a maximum penalty of $2,156 per relevant individual, up from $1,100. Finally, for unfair immigration-related employment practices, the maximum penalty increases from $3,200 to $3,563 per person discriminated against.

DUI Arrest May Mean Revocation of Visa

Individuals may lose their nonimmigrant visas if arrested for Driving Under the Influence (DUI) or related offenses, new guidance from the Department of State advises. DOS can “prudentially revoke” an otherwise valid nonimmigrant visa immediately upon notification by local law enforcement of the DUI arrest, even while the individual is in the United States, based on the suspicion the individual is ineligible for a visa on physical or mental health-related grounds. Unlike other grounds for inadmissibility or ineligibility for a visa, a determination of guilt is not required.

Administration Welcomes Foreign Entrepreneurs with Proposed Rule

The Department of Homeland Security has proposed a new “International Entrepreneur Rule” allowing certain founders of start-up companies from abroad to come to the U.S. for an initial stay to build their business. They would have two years (extendable to five years) to establish and grow a business with a relatively low financial commitment ($345,000 capital requirement, including investment from qualified U.S. persons or government grants of at least $100,000). International entrepreneurs must maintain an active role in the business and at least 15 percent ownership of the enterprise, two requirements not likely to impede most new company founders.

New Form I-9 Update

The Office of Management and Budget has approved revisions to the Form I-9, but the release date has not been announced, although it likely will be this fall. The new form will include much-needed technology features to assist employers in identifying errors. It will replace the 2013 version and will be valid until August 31, 2019. It is unclear how long the earlier version will be accepted once the new form is released. Training and preparation on the new Form I-9 will be vital to minimize the potential for costly fines and penalties.

Flagging Economy Does Not Relieve H-1B Employers of Wage Obligations

Employers employing foreign nationals in H-1B nonimmigrant visa status must pay their H-1B employees the wage specified on the Labor Condition Application (LCA) certified by the Department of Labor, regardless of whether the H-1B employer is enduring difficult economic or financial periods due to a struggling national economy, a DOL Administrative Law Judge has concluded. DOL Wage and Hour Division v. Shriiji Krupa, Inc. H-1B employers must adhere to the attestations made in the LCA governing the employment of their H-1B employees, even in the face of claimed business hardship. Unless the H-1B employee voluntarily reduces work (or leaves the employer’s employ), there is a bona fide termination of employment consistent with DOL regulations, or a new LCA becomes effective, the employer must meet its obligations under the controlling LCA.

Jackson Lewis P.C. © 2017

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Michael H. Neifach, Jackson Lewis, Employment visa Lawyer, border security matters attorney
Principal

Michael Neifach is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. He is a recognized leader on immigration, visa and border security matters, and he is Co-Leader of the firm's Immigration practice group.

Mr. Neifach has held senior positions at the White House Homeland Security Council, U.S. Department of Homeland Security, and U.S. Immigration and Customs Enforcement (ICE). He served as General Counsel at ICE from July 2007 through January 2009. Following his government service, Mr. Neifach oversaw...

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Amy L. Peck, Immigration Attorney, Jackson Lewis, Worksite Compliance Lawyer
Principal

Amy L. Peck is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C. She dedicates her practice exclusively to immigration law and worksite compliance, and she is Co-Leader of the firm's Immigration practice group.

Ms. Peck is one of 21 Directors elected to serve on the 14,000-member American Immigration Lawyers Association (AILA) Board of Governors. She currently is serving on the Board of Trustees of the American Immigration Council.

Ms. Peck is a member of the AILA National Verification Committee, which liaises with USCIS, ICE and OCAHO on I-9, E-verify and related worksite issues. Ms. Peck recently served on the AILA National USCIS Benefits Committee, the Interagency Committee, the Annual Conference Committee, previously chaired the AILA FOIA Liaison Committee, the AILA Comprehensive Reform Committee (2010-2011) and is a founding member of the Global Migration Action Group (2009 to present). She served as Chair of the AILA National Executive Office for Immigration Review (EOIR) liaison committee (2008-2010). Ms. Peck also served as Chair of the Strategic Planning Committee for AILA (2008-2009) and served on the Spring Conference committee (2008-2010). She was chosen as the editor of the AILA Midyear Conference materials in 2010, and past Chair of the Immigration and Customs Enforcement (ICE) liaison committee (2004-2006). She is past Chair of the AILA Iowa-Nebraska chapter (2001-2003), and previously served as its treasurer (1999-2000).

(402) 391-1991
Jessica Feinstein, Jackson Lewis, Employer Compliance Lawyer, immigrant petitions attorney
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Jessica Feinstein is Of Counsel in the Omaha, Nebraska, office of Jackson Lewis P.C. She specializes in representing U.S. and multinational companies in employment based immigration preparing nonimmigrant and immigrant petitions.

Ms. Feinstein specializes in representing U.S. and multi-national companies in employment based immigration. She has extensive experience preparing nonimmigrant visa petitions, including H1B, TN, L1, E, and H2B, as well as  preparing employment-based permanent resident petitions. She also...

(402) 391-1991
Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney
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Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by...

703-483-8311
Raazia K. Hall, Jackson Lewis, Employment Immigration Lawyer, Worker Retention Attorney
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Raazia K. Hall is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. Her practice focuses on immigration law.

Ms. Hall has numerous years of experience in employment-based immigration matters and employment documentation issues for domestic and international companies. Working with Human Resources Professionals and In-House Counsel, she assists in all aspects of visa matters related to the hiring and retention of foreign employees. She also is a frequent writer and speaker on issues related to immigration law...

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