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Carl Shusterman's Immigration Update



    The California Immigrant Worker Protection Act also known as IWPA became effective on January 1, 2018.

    IWPA imposes the following restrictions on California employers:

    1. They are prohibited from giving federal immigration agents access to non-public areas of the workplace or employee records without a judicial warrant or subpoena;
    2. They are required to give employees and union representatives (if any) notification before and after I-9 inspections; and
    3. They cannot reverify the immigration eligibility of employees to continue working unless mandated by federal law.

    Access to Non-Public Areas of the Workplace or to Employee Records

    In order for a federal immigration agent to be able to access non-public areas of the employer’s workplace, the agent must present an warrant issued by a judge. An administrative warrant signed by an Department of Homeland Security (DHS) officer does not suffice. The IWPA law provides that an employer can not voluntarily permit a federal immigration agent to enter these areas without a warrant.
    IWPA also prohibits employers from sharing employee records with a federal immigration agent unless they first present a subpoena or a judicial warrant.

    However, the requirement that the agent present a subpoena or a judicial warrant is waived where the agent serves the employer with a Notice of Inspection (NOI) to review the employer’s I-9 forms and attached documents.

    Required Notifications Before and After I-9 Inspections

    Upon receiving a Notice of Inspection, an employer is required by IWPA to post a notice informing it’s employees (and their union representative, if any) of the NOI within 72 hours. The notice must be in the language or languages normally used to communicate employment-related matters. The posting notice must contain the following information:

    1. The name of the federal immigration agency conducting the inspection;
    2. The date that the NOI was received by the employer;
    3. The nature of the inspection to the extent known; and
    4. A copy of the NOI.

    The California Labor Commissioner is obligated to issue a standard posting notice by July 1, 2018. Until then, employers and their attorneys should create their own posting notices.

    Within 72 hours after receiving the results of the I-9 inspection, the employer must provide each “affected employee” (and their union representative, if any) with a copy of the written results and the obligations of the employer and the employee arising from the results of the inspection. An affected employee is one who lacks proper work authorization documents or whose documents have been found by the federal immigration agency to be deficient. This notice must be hand-delivered, or if this is not possible, delivered by mail.

    This notice must contain the follow information:

    1. A description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee;
    2. The time period for correcting any potential deficiencies identified by the immigration agency;
    3. The time and date of any meeting with the employer to correct any identified deficiencies; and
    4. Notice that the employee has the right to representation during any meeting scheduled with the employer.

    Reverifying Employment Eligibility

    IWPA prohibits employers from reverifying the employment eligibility of current employees at a time or manner not required by federal law. Employers are required to conduct reverification before an employee’s existing work authorization expires.

    This provision creates problems for employers who wish to conduct internal I-9 audits to rectify any deficiencies in their I-9s.

    Penalties for IWPA Violations

    IWPA violations can result in civil fines of up to $10,000.

    A violation of the reverification provision can lead to a penalty of up to $10,000.

    Failure to satisfy any of the other provisions can result in penalties ranging from $2,000 up to $5,000 for a 1st violation, and from $5,000 to $10,000 for any subsequent violations.

    IWPA Advice for Employers

    IWPA can prevent some California employers from becoming compliant with federal immigration laws.

    For the past 30+ years, we have advised employers to perform internal audits of their I-9 forms in order to comply with Federal immigration laws and to avoid huge fines for I-9 violations. However, IWPA penalizes California employers who audit and fix deficiencies in their I-9 forms. Now, many employers would well advised to sign up for the E-Verify program allow this will not cure any past mistakes in completing I-9 forms.

    Employers need to properly train their human resource staffs what to do in case of a visit by federal immigration agents. If an HR employee is unable to distinguish between an ICE agent and a person working for the FDNS or between an administrative and a judicial warrant, this could have disastrous consequences.

    In addition, HR staff should be trained in how and when to post notices when a Notice of Inspection is received and how to notify affected employees (and union representatives, if any) of the results of a federal I-9 audit. They should also be aware of when I-9 forms can be reverified and when it is a violation of IWPA to do so.

    Related Pages

    Updated 03-12-2018 at 12:04 PM by CShusterman

  2. California Immigration Laws Challenged in Federal Lawsuit

    On March 6, 2018, the US Department of Justice filed a lawsuit in Federal Court challenging 3 California immigration laws.

    The lawsuit contends that the laws “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law” and that they “impede consultation and communication between federal and state law enforcement officials.”

    California Governor Jerry Brown responded calling the lawsuit a “political stunt”.

    The California immigration laws which are being challenged are as follows:

    The California Immigrant Worker Protection Act (AB 450) became effective on January 1, 2018. It prohibits businesses from allowing federal immigration agents to gain access to employee records without a court order or subpoena. However, if federal agents have a Notice of Inspection, they can gain access to I-9 forms within 72 hours. California employers are required to provide notice to employees about any Notice of Inspection as well as the results of I-9 audits by the Federal government. Employers can be fined up to $10,000 for violating this law.

    The California Values Act (SB 54) which also went into effect on January 1, 2018 limits state and local agencies from sharing information with federal officers about criminals or suspects unless they have been convicted of serious crimes.

    The Detention Review Act (AB 103) which was enacted as part of the California state budget prohibits new contracts for immigration detention in California and gives the state attorney general the authority to monitor all state immigration detention centers.

    US Department of Justice Challenges California Immigration Laws

    California Immigrant Worker Protection Act (AB 450)

    California Values Act (SB 54)

    Detention Review Act (AB 103)

    We will keep you informed as the lawsuit makes it’s way through the Federal Court system

    Updated 03-09-2018 at 05:04 PM by CShusterman

  3. The H-1B Cap And Filing Tips USCIS National Stakeholders Engagement (3-06-18)

     The congressionally mandated number for H-1B cap cases is 65,000 H-1B regular cap and 20,000 H-1B master’s exemptions.Please note that up to 6,800 visas are set aside from the 65,000 each fiscal year for the H-1B1 program for citizens of Chile and Singapore.

    When should you file an H-1B cap subject case?

    USCIS Fiscal Year 2019 begins on October 1, 2018, which is the first day employment is authorized for H-1B 2019 cap case filings. USCIS can begin to accept cases 180 days before H-1B employment begins, which is April 1, 2018.
    April 1, 2018 is a Sunday so USCIS will begin to accept FY 2019 H-1B cap cases on April 2, 2018.

    USCIS advised the following additional documents are required with the H-1B petition:

    1. Labor Condition Applications (LCA)

    When filing the H-1B petition a signed and certified LCA must be included and can be either original or copy.

    2. Evidence of Beneficiary’s Educational Background

    You must submit evidence of the beneficiary’s education credentials (with English translations when applicable) at the time you file your petition. If the beneficiary has met all of the requirements for a degree, but the degree has not yet been awarded, you may submit the following alternate evidence.

    • A copy of the beneficiary’s final transcript; or
    • A letter from the registrar confirming that the beneficiary has met all of the degree requirements. If the educational institution does not have a registrar, then the letter must be signed by the person in charge of educational records where the degree will be awarded.

    If you indicate that the beneficiary is qualified based on a combination of education and experience you need to provide substantiating evidence at the time you file your petition.

    3. A Copy of the H-1B Petition

    If the beneficiary will be applying for a nonimmigrant visa abroad, you should submit a copy of your H-1B petition with your petition. If you receive a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) then you should also submit a duplicate copy of your response.

    If you do not submit a copy of the petition it could result in delays with processing the petition or processing a visa abroad at the U.S. Consulate.

    4. Filing Fees

    The fees are different depending on the type of H-1B petition you are filing. The H-1B petition I-129 form fee is $460. The American Competitiveness and Workforce Improvement Act of 1988 (ACWIA) fee is $750 for employers with 1 to 25 full-time employees and $1,500 for employers with 26 or more full-time employees, unless exempt. The fraud prevention fee is $500 and applies to all cases except Chile and Singapore H-1B1 petitions.

    The check must be payable to the Department of Homeland Security, dated within the last six months, and include the proper amount and signature. USCIS prefers a separate check for each fee. If you submit one check and the combined payment is wrong, USCIS will reject the H-1B petition.
    The check or checks should be stapled to the bottom right corner of the top page.

    USCIS discussed and advised on the following during the call:

    Premium Processing

    USCIS will accept premium processing H-1B cap cases during the cap filing period. However, the 15-day processing time will be put on hold. USCIS which will announce at a later date when they will resume premium processing for the H-1B cap cases.

    Premium processing will continue as usual for all other H-1B filings with USCIS

    USCIS Requirements for H-1B Petitions

    • USCIS Forms must have original signatures, USCIS prefers black ink be used to sign forms. USCIS suggests reviewing the February 15, 2018 Policy Memorandum for signatures on Paper Applications, Petitions, Requests and other Documents Filed with USCIS.
    • The evidence submitted with the petition must establish the position is a specialty occupation and there is specialty occupation work available for the entire time requested for the petition.
    • Submit evidence confirming an Employer/Employee relationship.
    • Submit all evidence to support the H-1B qualifying criteria and the beneficiary’s qualifications to meet the criteria.
    • LCA must correspond to the position identified in the H-1 petition.
    • The petitioner address listed in the first section of the form I-129 should be the primary U.S. office address for the petitioner.
    • If filing for a change of status, the petition should include evidence establish the beneficiary has valid status in the United States. This evidence should include an I-94 and I-797 or any other status documents.

    Make sure the following information for the beneficiary is accurate:

    • Name spelled correctly
    • Date of birth listed properly with correct month, day and year
    • Valid passport
    • Correct country of birth
    • Correct country of citizenship

    Submission of Petitions to USCIS

    • Clearly label all H-1B cap cases in red ink on the top margin of Form I-129.
    • Write “Regular Cap” on petitions subject to the 65,000-regular cap case not including Chile and Singapore.
    • Write “C/S Cap” on Chile/Singapore cases.
    • Write “U.S. Master’s” on petitions subject to the 20,000 exemptions for beneficiaries with U.S. master’s degrees or higher.

    Preferred Order of Documents at Time of Submission:

    1. Form G-28 (if represented by an attorney or accredited representative)
    2. Form I-129, Petition for a Nonimmigrant Worker
    3. Addendums/Attachments
    4. H Classification Supplement to Form I-129 and/or Free Trade Supplement (for H-1B1 Chile- Singapore petitions)
    5. H-1B Data Collection and Filing Fee Exemption Supplement
    6. All supporting documentation to establish eligibility. Provide a table of contents for supporting documentation and tab the items as listed in the table.
    7. Arrival-Departure Record (Form I-94) if the beneficiary is in the United States
    8. SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
    9. SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
    10. Form I-566 if the beneficiary is a current A or G nonimmigrant
    11. Department of Labor certified LCA, Form ETA 9035
    12. Employer/attorney/representative letter(s)
    13. Other supporting documentation
    14. Copy of the petition, if necessary. Clearly mark it as “COPY” so that it is not mistaken for a duplicate filing.

    Additional comments for submitting H-1B petitions to USCIS

    • If filing more than one petition in the same package, place petitions in separate envelopes and mark each envelope in red ink with the type of H-1B cap case.
    • The case must be filed with the correct Service Center.
    • Please refer to the USCIS Form I-129 web page for direct filing locations.
    • If the petition is filed at the wrong Service Center the petition may be rejected
    • Rejected petitions will not be accepted or counted against the cap

    USCIS: Review the Following Memos Before Preparing H-1B Cases:

    Updated 06-14-2018 at 04:04 PM by CShusterman

  4. Essential Steps To Avoid RFEs On H1B Petitions

    Between January 1 and August 31 2017, USCIS issued 85,000 requests for evidence (RFEs) for H1B petitions. This was a 45% increase over the same period in 2016.
    We are now in H1B cap season and there are some important factors to take note of in preparing H1B petitions:

    • H1B cap-subject petitions must be received by USCIS between April 2 and April 6 to be accepted in the H1B lottery.

    The following are common types of RFE’s issued by USCIS:
    • The Level 1 wage is inappropriate given the complexity of the job duties.
    • The position is not a specialty occupation because the Level 1 wage indicates it is an entry-level position.
    • A university degree is not required for the position.
    • Even if the position is a specialty occupation, the beneficiary does not qualify for the position for one of the following reasons:

    • U.S. degree does not qualify the beneficiary for the position as it is not related.
    • Equivalent foreign degree is not related to the position.
    • Equivalent combination of degree and work experience does not qualify the beneficiary for the position.
    • Students on OPT EAD. USCIS may review whether the F-1 student is properly maintaining his/her status and whether the practical training is related to the degree.
    • Outsourcing. Does the petitioner have the “right to control” the beneficiary when he/she is employed at an offsite location?

    Therefore, when preparing H1B petitions, it is important to consider the position, degree required, wage level, beneficiary’s qualifications, student status and practical training as well as the documentation supporting the employer’s right to control the beneficiary at an offsite location.

    On February 22, 2018, the USCIS issued a memo which requires outsourcing firms filing H1B petitions to list specific work assignments, including dates and locations, and to verify the “employer-employee” relationship on H1B petitions. This is to insure that the workers will not be underpaid or perform “non-specialty” jobs when they are contracted out to 3rd-party worksites.

    Updated 03-09-2018 at 05:20 PM by CShusterman

  5. CSPA: Rodriguez Tovar Decision Could Help Keep Families Together

    On February 14, 2018, the US Court of Appeals for the 9th Circuit, in Margarito Rodriguez Tovar v. Jefferson Sessions reinterpreted a section of the Child Status Protection Act (CSPA) in a way which could help keep many immigrant families intact.


    The Court overturned a decision by the Board of Immigration Appeals (BIA) that the son of a US citizen father who had waited in line for a green card for many years be forced to leave the US for a decade or more.

    Margarito Rodriguez Tovar was born in Mexico in 1983.

    In 2000, at the age of 17, he entered the US. On April 30, 2001, his father, who was a lawful permanent resident, sponsored him for a green card. In 2005, the USCIS approved the family-based 2A visa petition.

    In 2006, his father became a naturalized US citizen. The child’s 2A priority date (minor, unmarried sons/daughters of lawful permanent residents) became current and, in 2008, he filed for adjustment of status under section 245i.

    The USCIS denied his application on the ground that he had aged-out and that since the family-based 1st preference (adult unmarried sons/daughters of US citizens) priority dates were backlogged to 1992, his priority date would not become current for more than a decade.

    He was placed under removal proceedings where he renewed his application for adjustment of status.

    However, both the Immigration Judge and the BIA denied his application and ordered him to leave the US.

    The IJ and the Board cited the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011). Zamora-Molina involved a similar fact pattern. The respondent’s LPR mother had originally sponsored her child under the family 2A category, and became naturalized after the child’s 21st birthday. The respondent argued that had the mother not naturalized, he could have utilized CSPA’s “opt-out” provision and used the CSPA age formula to adjust his status under the 2A category. The BIA disagreed and held that since the mother had naturalized, the issue was whether the CSPA age formula applies to “immediate relatives” of US citizens. The section of law in question states that only if the parent naturalizes prior to the child’s turning 21 can the child be considered an immediate relative of a US citizen. The BIA ruled that this referred to the child’s biological age.

    In Rodriguez Tovar, the 3-judge panel disagreed with the holding in Zamora-Molina andunanimously held that it would make no sense for Congress to punish a child simply because his sponsoring parent became a US citizen. They determined that the section of CSPA that refers to immediate relatives should be read to refer to a person’s statutory (CSPA) age rather than to his/her biological age.

    Applying the CSPA formula, Rodriguez Tovar’s age would be under 21 (24 years when his priority date became current on June 1, 2007 minus the 4 years that the I-130 was pending before the USCIS), and he would be eligible to adjust his status to permanent resident as an immediate relative of a US citizen parent.

    The opinion in Rodriguez Tovar succinctly states the rationale for the decision as follows:

    "In sum, the government’s position is that because
    Rodriguez Tovar’s father became a citizen, Rodriguez Tovar
    must now wait decades longer for a visa than if his father had
    remained an LPR. In the meantime the government seeks to
    deport him to Mexico, with any future return subject to
    unforeseeable modifications to the current immigration laws.
    As we explain in the remainder of this opinion, the correct
    interpretation of the statute does not lead to this absurd result,
    but rather to his entitlement to an immediately available visa.

    It remains to be seen whether the government will ask the Supreme Court to review this decision.

    Updated 03-09-2018 at 05:23 PM by CShusterman

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