Friday, February 26, 2010

Being Honest with the Government

If my eight years working for the United States Government taught me anything, it is not to try to lie to Federal employees.

Federal employees, particularly those who work directly on specific cases, tend to be overworked. Due to budget constraints, they are also given few resources to do their jobs. That means that case workers sometimes have tough choices about which cases will get the bulk of their attention. Lying to a Federal case worker will not endear you to them. Being human, they will likely become annoyed. This can very well work to the detriment of how much attention your case gets.

Lying also affects your credibility. A Federal case worker is less likely to find in your favor after you have lied. And why should they? If a Federal case worker has caught you in one lie, they may assume that you lied in other aspects of your case as well.

Lying to a Federal employee about something important and relevant to their job is also a crime. It can result in fines and jail time. Sometimes, when a Federal employee has discovered you lied to them, it can motivate them to bring the full force of the Department of Justice on you.

Finally, particularly in the immigration context, it is extremely difficult to get away with a lie. Often, immigration benefits depend on a background check. That means the FBI, who are extremely good at what they do, will be investigating your background. The FBI is thorough and professional. You should not expect to keep something having an important bearing on your case from the FBI.

If you have an issue that may affect your eligibility, the best course is to seek out a lawyer, be truthful in explaining to your lawyer your situation, and letting your lawyer give you the best advice for your situation. While you may not like it, that advice could be not to seek the immigration benefit.

Employers Should Start the H-1B Process for Fiscal Year 2011

The H-1B, or specialty worker, visa is available to foreigners who will work in the United States in a profession requiring a bachelor's degree on a temporary basis. Only 65,000 are available each year. In addition, there are 20,000 H-1B visas for foreigners holding a master's degree.

The H-1B visas allow the foreign workers to start at the beginning of the fiscal year, October 1st. The employer may apply for the visa as early as six months before the beginning of the fiscal year, or April 1st. In the past few years, the trend had been that the Government received more petitions on April 1st than the number of available visas. Last year was an exception, as H-1B visas remained available through December.

Because of the timing issues, and the possibility that the recession is ending, employers would be wise to start the H-1B process now for employees who will start on October 1, 2010. The process includes not only filing the visa petition by April 1st, but also having the Department of Labor approve a labor conditions application ("LCA").

Through the LCA, the employer certifies that: (1) it will pay the the greater of the prevailing wage or the actual wage paid to other employees in the same position; (2) the
employment of an H-1B worker will not adversely affect the working conditions of US workers; and (3) there is no strike, lockout or other work stoppage because of a labor dispute.

The employer applies for Department of Labor approval of the LCA on-line. Prior to last year, the LCAs were being approved almost instantaneously. However, with the adoption of the iCert portal, the Department of Labor is now taking up to a week to approve the LCAs. The need for additional time should be factored in when preparing to apply for an H-1B visa.

Preparing for ICE Employer Inspections

With some preparation and a plan, an employer can successfully navigate the receipt a Notice of Inspection (“NOI”) from U.S. Immigration and Customs Enforcement (“ICE”).

All U.S. employers must verify the identity and authority to work of its newly hired employees. After seeing the new hire’s documentation of identification, the employer documents its compliance with the law through the I-9 form.

The receipt of a NOI indicates that ICE wants to inspect an employer’s records to ensure that the employer is complying with the law. ICE will give the employer 3 business days to produce its I-9 forms. ICE will likely also request other documentation, such as a copy of the employer’s payroll or a list of the employer’s employees. ICE will compare the list of employees with the I-9 forms, to determine whether any documentation is missing or out of order.

The best result from an inspection is a Notice of Inspection Results. This is also called a compliance letter. This letter informs the employer that it was found to be in compliance.

ICE could also issue a Notice of Suspected Documents. This is an indication that the employee is unauthorized to work. ICE will notify the employer of the possible fines and criminal penalties for continuing to employ the person. However, the employer will have an opportunity to present additional evidence if it believes ICE has reached its conclusion in error.

ICE could issue a Notice of Discrepancies. Through this notice, ICE is notifying the employer that it has been unable to determine the work authorization of the employee. The employee is to be given an opportunity to present additional documentation to ICE to prove his or her work authorization.

If ICE finds a technical violation of the law, it will issue a Notice of Technical or Procedural Failures and give the employer ten days to comply. The failure to correct the technical violations becomes a substantive violation and could result in a monetary fine.

A Warning Notice is issued where ICE finds substantive violations, but determines that monetary fines are not called for.

Finally, if ICE determines that the employer has committed a serious substantive violation or has knowingly hired or continued to employ a person who is unauthorized to work, ICE will issue a Notice of Intent to Fine (“NIF”). The employer will be required to put an end to the illegality. The employer may also face a fine and criminal prosecution. The employer may also be “debarred” by ICE, meaning that the employer will not be permitted to participate in federal contracts, or receive other federal benefits.

When ICE finds an employer has knowingly hired or continued to employ an unauthorized worker, it may impose fines ranging from $375 to $16,000 for each violation. The amount of the fine will depend on five factors: (1) the size of the business; (2) good faith efforts to comply; (3) the seriousness of the violation; (4) whether the violation involved unauthorized workers; and (5) any history of previous violations.

If ICE issues a NIF, it will also issue a charging document specifying the alleged violations of the employer. The employer may choose to negotiate a settlement with ICE, request a hearing, or do nothing. If the employer takes no action, ICE will issue a final order.

Of course, the best way to ensure that ICE finds no violations is to adopt a procedure to ensure compliance with the law. This procedure should include periodic self-audits to test whether the procedure works adequately. Consultation with an attorney can assist the employer in putting the procedure together, and testing its efficacy.

Subtle Differences Between Inadmissibility and Deportability Can Have Major Consequences

U.S. immigration law provides a number of bases to either prevent someone from entering the United States, or to deport someone out of the country. These bases are called the grounds of inadmissibility and deportability.

Inadmissibility refers to the rules that apply to a person attempting to enter the United States, or to a person currently in the United States after entering illegally. Deportability refers to the rules that apply to a person that is currently in the United States after being lawfully admitted into the country.

Many of the grounds of inadmissibility are similar to the grounds of deportability. However, they are not exactly the same – some of the most important distinctions are based on how the rules consider a person’s criminal behavior. Certain crimes, such as crimes involving moral turpitude, can render a person inadmissible and deportable. The term, “crimes involving moral turpitude,” has been defined as conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Such crimes include theft, fraud, arson and blackmail.

Other crimes, known as aggravated felonies, can also render a person deportable. The crimes that constitute aggravated felonies are defined in the law, and include such crimes as murder, rape and fraud involving $1,000 or more. The first major distinction is that an aggravated felony may not render a person inadmissible. However, many aggravated felonies also happen to fall within the definition of a crime involving moral turpitude, and may render a person inadmissible for that reason.

Another distinction between the rules of inadmissibility and deportability is whether a person must have been convicted of a crime in order for the rules to apply. Generally speaking, for a person to be deportable for a crime involving moral turpitude or an aggravated felony, that person must have been convicted of the crime in question. However, even if a person has never been convicted of a crime, if that person has committed an act which would amount to a crime involving moral turpitude, that person could be rendered inadmissible to the United States.

Whether a crime that falls within the definition of a crime involving moral turpitude is so minor that it may be ignored is another big difference between the rules of inadmissibility and deportability. For example, if a person has committed one act that would be considered a crime that would not be punishable in excess of one year, and that person has been sentenced to six months or less, this is considered a “petty offense,” and will not render a person inadmissible.

However, when a person is present in the United States legally, and that person has convicted of a single crime involving moral turpitude within five years of being admitted to the United States, in order for that conviction to be ignored for deportation purposes, the crime must have a maximum punishment of less than one year in jail.

Generally, the rules governing the admissibility of a person into the United States are more stringent than those governing the deportation of someone legally in the United States. However, the exceptions relating to crimes of moral turpitude can result in confusing outcomes. For example, in Virginia, Class 1 misdemeanors are punishable by up to one year in jail. Under the rules governing admissibility, a person admitting to a criminal act that equates to a Class 1 misdemeanor may qualify for the petty offense exception if the sentencing guideline provides for sentences less than one year.

However, a person convicted of the same Class 1 misdemeanor will be deportable, regardless of the actual sentence, so long as the crime occurred within five years of admission into the United States. In addition, a conviction record for crimes of moral turpitude can have a major impact on whether a person can travel outside of the United States.

For example, if a permanent resident is convicted of a crime involving moral turpitude punishable by more than a year in jail, but the act was committed more than five years after being admitted to the United States, the permanent resident is not deportable. However, if that same person takes a trip overseas and attempts to re-enter the United States, that person will be deemed inadmissible. Further, the law provides that when a person who is in removal proceedings has committed a crime involving moral turpitude, that person is subject to mandatory detention during the pendency of the removal proceedings.

Thus, the same crime, which may have no immigration consequences for a permanent resident who does not travel overseas, can place the same person in detention and subject that person to removal proceedings if the permanent resident leaves the United States and attempts to come back.

Because of the subtle differences between the grounds of inadmissibility and the grounds of deportability, certain acts can result in vastly different outcomes. A permanent resident with a criminal record, or facing a criminal conviction, would be wise to seek advice from an attorney familiar with immigration law to learn of the possible immigration consequences that could result from a conviction.