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Business Issues Update from AILA Conference
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Posted on June 17, 2009 By Emily Haverkamp, Immigration Attorney, The Mdivani Law Firm We attended the American Immigration Lawyers Association (AILA) Annual Conference in Las Vegas. Every year, the conference provides guidance and updates on hot-button issues affecting business immigration law. This year was no exception, as there were significant business immigration updates on DOL, USCIS and ICE policies. Some of these updates include: Corporate changes, including layoffs, hiring freezes and mergers/acquisitions Layoffs It is important that companies have immigration policies in place to deal with the immigration consequences of layoffs. Layoffs can have an effect on both H-1B and PERM filings. For instance. companies which have pending PERM applications need to evaluate whether laid-off workers may qualify for the PERM position. Laid off workers who meet the minimal qualifications must be considered for the PERM position. Hiring freezes Hiring freezes can also effect the PERM process. Companies need to evaluate whether they can recruit in good faith under PERM under the terms of the company's hiring freeze. Mergers/Acquisitions In most mergers and acquisitions, the new company takes on the I-9 and other immigration liability. I-9 and LCA audits are strongly encouraged following, or even immediately proceeding, any major corporate change. DOL Audits and Supervised Recruitment Increased PERM Audits At the conference, there was a panel involving officials from DOL and experienced AILA attorneys. During this panel, William Carlson, Administrator of DOL's Office of Foreign Labor Certification, confirmed that PERM applications are being audited more due to changes in the labor market from the recession. PERM cases that have been pending for months may be revisited to determine whether the labor market test done during recruitment would still apply to the current market. Employers who are audited will need to produce recruitment documentation, including the recruitment report. It is extremely important that employers have the recruitment report prepared before filing a PERM application. Increased PERM Supervised Recruitment Similar to the increase in audits, DOL is increasing the use of supervised recruitment as a tool. Previously, only about 200 cases nationwide went through supervised recruitment, but expect that number to increase in the near future as there is increased scrutiny on PERM recruitment. Under supervised recruitment, employers are required to readvertise in accordance with specific guidelines given by DOL. Increased LCA Audits DOL officials and AILA attorneys stated that DOL is increasing the number of LCA audits. Employers need to be aware of this trend and be sure to maintain proper H-1B public access files and other documentation. DOL is sharing information found in these audits with ICE, so the consequences from the audits may be severe and come from more than one agency. iCert Portal DOL is combining the LCAs and Labor Cert filings into one portal so that companies and employers can maintain their DOL immigration related applications all in one place. DOL is rolling iCert out gradually. It is currently available for LCAs. The PERM rollout date is still to be determined. ICE Worksite Enforcement Policy Changes As we have previously discussed in the Analysis section, the new administration is putting an even sharper focus on enforcement targeted toward employers. In the past, ICE had deported the bulk of the unauthorized workers as soon as possible, leaving ICE with few witnesses when pushing forward their cases against employers. The new administration is going to increase the focus on employers, employing tactics such as using unauthorized employees as informants and increased audits. HR managers are a primary target, as they are likely to have the closest relationship to the workers and the ability to circumvent the system. It is becoming increasingly important that HR managers are well-trained on how to implement ICE Best Practices. E-Verify Data Mining USCIS officials expressed concern with the misuse of E-Verify, and in April 2009 USCIS announced plans to monitor employer usage of E-Verify more closely through data mining. The data mining will also allow USCIS to detect when a Social Security number is being reused. At this juncture, USCIS is not informing the employer immediately that the Social Security number was recently used, but the information will be available for ICE to obtain. This shows how important it is for employers to remember that E-Verify is not a magic bullet, and that E-Verify is just one part of a company's Immigration Compliance Plan, Policies, and Procedures. For more information on these topics, training is available LIVE and by WEBINAR at www.I-9seminars.com. For the most recent news on business immigration issues, read www.I-9seminars.com and follow I-Seminars.com on Twitter. |