Category Archives: Employment Law

Newer I-9

On July 17, 2017 the United States Citizenship and Immigration Services (USCIS) released an updated I-9 form.  On September 18, 2017, all employers will be required to use the revised form, so it makes sense to avoid any delay and begin use of the new version immediately.

What is an I-9 form and why do employers need to use it?  The Immigration Reform and Control Act of 1986 (IRCA) requires U.S. employers to verify the identity and eligibility to work on Form I-9.

All individuals, both U.S. citizens and aliens, hired on or after November 7, 1986 are required to complete the form when hired.

How do you complete the I-9?

As an employer, your duty is to verify that the employment documents employees present appear legitimate.  In order to avoid a claim of discrimination on the basis of citizenship status or national origin, an employer is not allowed to ask an employee for a specific document.  The employee’s duty is to fill out the form honestly.   The Immigration Act prohibits a person from forging or falsifying  any document for the purpose of obtaining a benefit.

When an employee presents documents from the acceptable list on the I-9 form, these are evidence of the employee’s right to work in the U.S.  Absent clear evidence of the contrary such as the  immigration enforcement informs you that the A# is wrong the employee says “I am not authorized to work,” the employer need not inquire further.

Once the I-9 is complete, rechecking documents is prohibited by IRCA.

Civil and criminal sanctions will be imposed on U.S. employers and individuals who, subsequent to November 6, 1986, hire or refer for a fee aliens who are not authorized to work in the United States.

Employers will need to adapt to these new changes no later than September 18, 2017 or face the possibility of large fines.

Call for a consult to determine what documents you need have on file to protect yourself.  Call (646) 580-0617 or complete the contact form on this website.

Dena Wurman is an expert in I-9 forms in the following industries:  Retail, Restaurant, Landscaping, Housekeeping, Maintenance, Construction.  Beware! If caught, a repeat-offender employer of illegal immigrants can face civil and criminal fines (up to $11,000 per employee) and jail time (up to five years).

Routine immigration employment forms

Immigration forms are widely available on the internet. Many routine immigration employment forms may be completed by non-attorneys.

After an application is submitted and approved, frequently the same approach may be used again.

There may be a few adjustments.

For example, many immigration forms are updated annually.  Some filing locations change.  In some cases it would be a good idea to contact an attorney for advice on filing an updated form.  Particularly, if an employee has an arrest and conviction for a crime.

Barring any new events that may occur between filing periods, human resource professionals may have the ability to complete many forms with minimal training.  These applications include:

    • TPS
    • NAFTA Canada/Mexico TN Visa
    • Employment Authorization

Need help with an unusual case? Simply request an assessment of your issue by completing the contact form on this website.

This office is happy to set up a conference call with your staff!

Non-compete Agreements

By Dena Wurman, MPA, JD

A non-compete agreement is a contract.  Usually an employer has the employee sign one before starting to work at the new company.

The purpose is to prevent an employee from working for a competitor.  Most courts have found these agreements to be legally binding as long as there are reasonable limitations as to the geographical area and time period.

If the terms are reasonable, a court may prevent an employee from exploiting information derived from the current employer or working for a new employer.

In a case well-known in the tech industry, Amazon.com Inc. v. Zoltan Szabadi, Amazon went to court in Seattle to enforce their non-compete agreement.  Amazon tried to prevent a former employee from working for competitor (Google.)  The employee signed a non-compete with Amazon.

In response, the employee filed a Motion for Summary Judgment, to nullify the agreement. Court denied in part, granted in part so the employee was freed from some of his obligations to Amazon.  But not all of them.

Seattle courts have generally permitted reasonable non-compete agreements. In Washington, a court will enforce a reasonable non-compete if:

1) The restraint is reasonably necessary to protect the business or goodwill of a

party;

2) The restraint does not impose upon the individual any greater restraint than is reasonably necessary to protect the business or goodwill; and

3) The public is not injured as a result of the loss of service and skill of the individual.

Legislators in Washington are trying to change the law now.

According to proponents of a house bill, non-competition agreements are used too often. They cause waste. They inhibit individuals from moving between jobs. They are oppressive. The agreements are expensive to challenge in court. Why not just use a nondisclosure agreement instead?

According to opponents of the proposed bill, nondisclosure agreements are insufficient to protect an employer’s investment. Employers provide employee training. Departing employees can steal business. An employee could go to court to get the agreement invalidated, or an employer may not attempt to enforce the agreement if they believe it is unenforceable.

In my own practice, I have had experience with non-competes in the health care and aviation industries. In both cases, there was no litigation. In one health care case, the employer waived the non-compete clause when the employee agreed to voluntary termination. In another, it was modified to a more reasonable geographic region from a worldwide restriction, before it was signed.

Attorney Dena Wurman has helped individuals, business owners, organizations and attorneys in employment matters, most recently as Outside Counsel to the University of New Mexico.

Checking Documents

immigration pencil

Screening Employee Documents

Screening what appear to be legitimate working documents presents a real problem for U.S. employers. Usually, the employee has been on board and fully trained before any fraud is discovered. Terminating an employee at this point becomes burdensome.

In one case, an employer client was presented with two different Social Security numbers, after the first didn’t seem to be legitimate. The second one was a real number.

There are nuances in prosecuting document fraud.  For example, in California, using a false name on a Motor Vehicles application would trigger a referral for criminal prosecution only if the MV Department believes the false information would cause harm. In the case of identity theft, the original owner may be harmed.

Is it Authentic?

Here is a simple way to check whether an immigration document presented by an employee is authentic.

Future Benefit vs. Current Authorized Employment

 

While any receipt an employee provides may look legitimate at first glance, and there could be a problem with the dates.

Generally, any immigration form filed will generate a receipt. A receipt from the Immigration Service will have a receipt number on it. For example, a “WAC” receipt number relates to when a form is filed.

If typing this WAC number in the www.uscis.gov system results in a receipt date on the website that doesn’t match the employee-provided form with the same WAC number, the employee form is possibly fraudulent.

It is not possible to have one WAC number and two different receipt dates.

This difference in dates would indicate the document is not a legitimate receipt.

Still have questions?   This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

 

Passing through costs

Employers often ask about sharing some of the cost for submitting an H-1B petition with a foreign worker .

One way of accomplishing this is to have the employee sign an agreement.  An employment agreement generally might include the following:

Costs
  • Which costs and fees will be paid by the company and which will be the responsibility of the employee
  • A  requirement that the employee reimburse the company for certain costs and fees if he or she leaves employment before a certain date and what circumstances would constitute such termination of employment

There are federal laws that strictly prohibit passing through costs to the employee or seeking reimbursement.  One example of a mandatory H-1B fee that cannot be passed on to the employee is the American Competitiveness and Workforce Improvement Act (ACWIA) fee.

Contracts

Employers of H-1B workers must be very careful when drafting reimbursement agreements.  Here are a few issues to keep in mind.  Deductions that are prohibited are:

•tools and equipment;

•transportation costs where such transportation is an incident of, and necessary to, employment;

•living expenses when the employee is traveling on employer business; and

•attorney fees and other costs connected to the performance of the H-1B program functions that the employer must perform, such as preparation and filing of the LCA and H-1B petition.

Under ACWIA, employers may not impose an early resignation penalty on H1B employees.  Early resignation means the employee ceases employment prior to an agreed date.

However, in limited circumstances, an employer may receive damages from an H-1B nonimmigrant. This would depend on whether state law deems the damages permissible.

Payroll Deductions

Before making any payroll deductions from an employee to recoup expenses, a company should obtain written authorization from the employee.  If the company uses an employment agreement,  the authorization can be included in the agreement.

Still have questions?   This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

Immigration Forms are Tricky

If a U.S. immigration form is in English it should be easy, right? After printing out immigration forms, many clients still have issues.

It is not uncommon to skim through a form and fill in the blanks quickly.  For example, in one case the client’s father checked a box that he did not plan to have any of his children included in the application.

When it came time for the consular interview he told the interviewer he did want to include his daughter.  The interviewer asked, where was she…why wasn’t she in the interview?

Is a form appropriate under the circumstances?

For example, in one case a well-meaning mother filled out a number of B visa forms for her daughter so that she could visit her boyfriend.  When the visitor B visa expired, the couple was told by the USCIS agent to simply cross the Mexican border and have her foreign passport stamped .

She had spent most of the entire year in the US on a visitor visa, which is restricted to under six months.

It wasn’t until she attempted to re-enter the US that the complete time period she spent here was evident.  She was detained at the airport and returned to her country of origin.

Where do I file my immigration forms

Immigration application processing is redistributed frequently based on the number of people sending in forms.  Various service centers throughout the U.S. accept forms.  These locations change. The new mailing addresses are updated on the USCIS website.   When a form is “expedited” it’s mailed to a different address for premium processing, not the regular address.

More Tips

TIP 1:  Fees are usually required with a form. When the filing fees change, if the new fee is not mailed with the form, everything will be returned to the applicant.

TIP 2:  Immigration law changes every day. When submitting a form with a letter or a legal brief, understanding the twists and turns in the law and hitting all the required, legal elements is important.

TIP 3: A petition needs a “wow” factor. There is a short time to make a big impact. A government reviewer will set aside a confusing, large petition for a smaller well-crafted one.  If there isn’t a persuasive reason why the evidence is included and how it proves the case, it should be left out.

It is best to work with an experienced attorney.

Attorney Dena Wurman has helped clients navigate the complicated federal U.S. immigration system. Through her efforts, new immigrants are awarded visas, green cards and U.S. citizenship. Still have questions?   This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

Prevailing Wage

Department of Labor

Congress has mandated that the Department of Labor (DOL) monitor the H1B program.

The DOL is responsible for regulating any adverse impact immigrant workers may have on wages of American workers doing the same kind of work.  The employer must determine the prevailing wage rate before filing the labor condition application, in order to affirm that it is paying the higher of the actual wage or prevailing wage rate.

Then, an employer must file an “application” affirming that the employer will pay this agreed wage rate to H1B workers.

What is a prevailing wage?

The “prevailing wage” is defined by the DOL rules as the average rate of wages paid to workers similarly employed in the area of intended employment.

Similarly employed is defined in this context as workers having substantially comparable jobs in the occupational classification in the area of intended employment.

Online Application

Before 2010 state workforce agencies processed prevailing wage requests for H-1B visa applicants. A relatively simple process, requests were faxed and a response came within a few business days. In 2010 these requests were centralized to an online filing system with the Department of Labor.

This office offers a number of solutions to meet your needs and budget.   Call (646) 580-0617 for a free assessment of your case or use the contact form on this website.

I-9 Fraud

Student Denied Green Card

There was an interesting case decided in October 2014 by the Federal Board of Immigration Appeals (BIA) that applies generally to all cases in immigration court. (Matter of Ezra Kibichii Bett)

Student from Kenya

In this case, an immigrant student from Kenya — on an F non-immigrant visa — filed a Form I-9 (Employment Eligibility Verification) with two different employers on October 9, 2009, and October 27, 2009.

On each form, a box was checked signifying that the applicant was a United States citizen.

He acknowledged that the signature on both forms resembled his own.  Later, when he tried to get a green card by marriage to a US Citizen wife, the court denied his request, because he falsified the I-9 forms.

I-9 Form Fraud

The court said, any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States, should be denied a green card (permanent residency.)

 

E Investment Visa

    Here are the investment requirements for the E-2 Investor Visa:
    Person, partnership or corporation
    • The investor, either a person, partnership or corporate entity, must have the citizenship of a qualified treaty country.
    • If the investment is in a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
    Size of the investment
    • The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
    • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
    Control
    • The money invested must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
    • You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
    Develop and direct
    • You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.

     

    Documentation must be organized in such a way that the consular officer can locate all of the relevant facts to make adjudication within 5-10 minutes.

    Applicants who fail to submit the necessary information will face delays in the processing and adjudication of their cases.

    This office has experience drafting business plans, most recently for a Canadian E visa.

    Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a consultation, e-mail dena@wurmanlegal.com

H-4 Dependents

Retention of highly-skilled workers in the U.S. can be a problem for an employer.

Reasons may be immigration-related. The U.S. currently has less favorable rules for immigrant spouses than other countries. The time frame required to obtain permanent residency may be many years.

Under current regulations, the Department of Homeland Security does not list H–4 dependents (spouses and unmarried children under 21) of H–1B
nonimmigrant workers among the classes of aliens eligible to work in the United States.

Currently, when the spouse of an H1-B employee wants to obtain work authorization – they are eligible as derivative beneficiaries – they must wait until their husband or wife submits forms to get their green card.

An alien is prohibited from submitting these forms until a visa number is available. Visa numbers are limited each year and waiting can take several years until a husband or wife can work.

A new rule will extend work authorization to spouses but not to children.  When finalized, it would impact approximately 100,000 H-4 spouses and drop to a projected 35,900 spouses in subsequent years.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a complimentary consultation, e-mail dena@wurmanlegal.com