Supreme Court Takes on Arizona Immigration Law

The U.S. Supreme Court announced on December 12, 2011 that it would decide whether Arizona's "heightened" immigration law will be upheld.  If you recall, Arizona enacted anti-immigration law provisions in 2010 that:

(1) required state law enforcement officials determine the immigration status of anyone they stop or arrest if officials have reason to believe that the individual might be an illegal immigrant;

(2) required that the immigration status of people who are arrested be determined before they are released;

(3)  made it a crime under state law for immigrants to fail to register under a federal law;

(4) made it illegal immigrants to work or to try find work; and 

(5) allowed the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law. 

Although President Obama's Administration filed suit challenging these laws and the Ninth Circuit in California ultimately blocked these provisions, the U.S. Supreme Court will review Arizona's immigration law and make their own decision about whether such a law  is permissible. If the U.S. Supreme Court upholds Arizona's immigration law (or any of its provisions), I foresee other conservative Republican states following Arizona's lead and implementing similar heightened immigration laws. 

Daniel N. Ramirez is a named partner at Monty & Ramirez LLP.  He is also board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Daniel's Contact Information:

Email: dramirez@montyramirezlaw.com

Telephone: 281.493.5529

Website: http://www.montyramirezlaw.com

USCIS Announces H-1B Advanced Degree Cap Reached

United States Citizenship and Immigration Services (USCIS) announced this week that the H-1B Advanced Degree Cap has been met. According to their announcement, USCIS has received approximately 20,000 petitions counting toward the 20,000 master’s degree or higher cap exemption. Currently, 46,200 of the 65,000 available H-1B nonimmigrant petitions for the fiscal year have been received. Therefore, any advanced degree H-1B petitions will now be adjudicated under the remaining numbers for the H-1B cap.

The H-1B program allows employers to hire foreign workers who will be employed in a specialty occupation that requires theoretical or technical expertise, such as architects, scientists, engineers, accountants and computer programmers among others.

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez LLP.

Contact Information:
Email: smonty@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

Expect More Government Investigations - the DOL and ICE Agree To Share "Notes" About Employers

The Department of Labor (DOL) and Department of Homeland Security (which includes Immigration Customs Enforcement—ICE) entered into a Memorandum of Understanding (MOU) on March 31, 2011. The purpose of the MOU is to help both agencies (DOL and ICE) share information in relation to their respective investigative efforts that is acquired during a government investigation involving an employer.  In short, ICE and DOL have formally agreed to share information that either agency acquires during their investigative process which will lead to more government investigations.  In the MOU, DOL specifically agrees “to assist ICE’s efforts . . . by providing ICE with timely and accurate information to allow for identification of overlapping enforcement activity.” Both agencies agree “to create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status.  ICE agrees to develop a means to refer to DOL information concerning violations of DOL’s civil work site authorities described in section III of this MOU.”

There has always been discussion that the DOL and ICE share information pursuant to a 1998 MOU that promoted shared interests. Now, however, there is official confirmation of this directive with the recent MOU.  The MOU serves as another example of the government stepping up their efforts to increase their information channels in relation to an employer’s I-9 and immigration compliance matters.  

Though ICE is formally agreeing to refrain from engaging in DOL and ICE investigations at the same time, employers should be aware that there are limited circumstances when dual investigations are permitted to occur.  These circumstances include instances relating to national security, protection of critical infrastructure, or a federal crime other than a violation relating to unauthorized employment. Even though the DOL and ICE have separate enforcement authorities, an overlap of their particular government initiatives will certainly be an issue.

For those employers with pending DOL wage and hour investigations, it is very important that employers not share more information to the DOL than necessary during the investigation. Specifically, employers should know how to comply with a DOL investigation while also limiting the information that is shared it in order to minimize exposure to immigration compliance liability if information is shared with ICE.  

It is also very important to know what employees might say during the investigative process. If an employee has already told you “red flag” information (anything relating to a fake name, fake documents, etc.) during their employment, it is likely he or she will tell that information to the DOL investigator if the employee is interviewed during the investigative process.  Because of this issue and other issues that might arise during a DOL investigation that can lead to a subsequent ICE investigation, it is important to take proactive steps now to ensure your company has the necessary immigration compliance practices and policies.  

The main takeaway for employers is to have proper workplace and immigration policies in place, know your workforce, and always engage your legal counsel in any government investigations. 

Daniel N. Ramirez is a named partner at Monty & Ramirez, LLP.  He is board certified in labor and employment law by the Texas Board of Specialization and has been recognized as a Rising Star by Super Lawyers magazine.

Contact Information:
Email: dramirez@montyramirezlaw.com
Telephone: 281.493.5529
Website: http://www.montyramirezlaw.com/

How will a government shutdown impact immigration agencies?

With the deadline fast approaching, failure to resolve the budgetary deadlock in the House of Representatives could lead to a government shutdown starting Saturday, April 9th at midnight. Under the government’s official guidance, in the event of a shutdown, all but “essential” government functions are furloughed and not allowed to operate. Although details are currently not being made public, all government agencies are preparing contingency plans to determine which functions would continue and who would keep working.

If a shutdown occurs, how will immigration agencies be affected?

In a recent posting, the American Immigration Lawyers Association (AILA) reported the following:

USCIS: In response to similar threats in the past, USCIS officials stated that other than the E-Verify program, the agency would not need to shut down as it is funded by fees. However, at least one local office has indicated that it is working on its shutdown plan. As such, the suspensions of the agencies functions are not clear at this time.

DOS: If there is a shutdown, it is likely that the only visa issuance being done by DOS will be for diplomats and for “life or death” situations.

CBP: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL: DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. At this time, it is unknown whether iCERT/PERM would continue to function. However, because the systems require funding to run, it is reasonable to assume that they will not be available.

We will be providing updates as more information becomes available.

Sarah D. Monty is a partner and the lead immigration attorney for the immigration section at Monty & Ramirez, LLP.

Email: sdm@montypartners.com Telephone: 281-493-5529 Website: http://www.montyramirezlaw.com