News

Tennessee Hosting 4 Equal Justice Works Fellows

Tennessee is benefiting from the services of four Equal Justice Works fellows. It is the first time in more than 10 years that the state has had any fellows, according to the Tennessee Alliance for Legal Services (TALS). That group is hosting Kirsten Jacobson in its office. Elder Justice Fellow Matt Schwimmer is serving with West Tennessee Legal Services in Jackson. Elder Justice Fellow Sara Dodson is serving with the Tennessee Justice Center in Nashville. And Immigrant Defense Fellow Valeria Gomez is working with Justice AmeriCorps and VIDA in Knoxville. TALS credits the work of the state Supreme Court, which has made pro bono a strategic priority, and the support of the state’s legal aid providers in making these fellowships a reality.

Photo from left: Jacobson, Gomez, Schwimmer, Dodson

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2 Clinics Planned for Oct. 22 in Memphis

Two legal clinics will take place in Memphis Oct. 22. The Midtown Legal Clinic, sponsored by Memphis Area Legal Services, will be held from 10 a.m. to noon at Idlewild Presbyterian Church, 1750 Union Ave. To volunteer or for questions, email midtownlegalclinic@gmail.com. From noon to 4 p.m., the Community Legal Center, Latino Memphis, Mid-South Immigration Advocates, Catholic Charities of West Tennessee and World Relief team up to host a “Deferred Action for Childhood Arrivals” clinic to help children and young adults apply for the federal program. The clinic will be held at Latino Memphis, 6041 Mt. Moriah Rd. Spanish language skills are not required. Come at noon for a volunteer training session and lunch. Contact Emily Stotts with any questions.

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Senate Hires Michigan Legal Group for Refugee Lawsuit

The Tennessee Senate has hired the conservative Christian Thomas More Law Center to represent it in a federal lawsuit attempting to block refugee resettlement in the state after state Attorney General Herbert H. Slatery III declined to take the case. The House is likely to approve the hire, but nothing has been formalized yet, the Tennessean reports. The Michigan-based legal group will represent the state for free in the nation’s first lawsuit to challenge the federal government for noncompliance with the Refugee Act of 1980 based on the 10th Amendment. The move comes after lawmakers overwhelmingly approved a resolution earlier this year in support of a lawsuit.

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USCIS Proposes Rule for International Entrepreneurs — Offering Growth Opportunities for U.S. Businesses

At the end of August 2016, the U.S. Citizenship and Immigration Services (USCIS) announced a proposed rule which would allow certain international entrepreneurs to be paroled into the United States — issued temporary admission into the United States — in order to allow them to grow their business(es) inside the United States.

Under this proposed rule, the U.S. Department of Homeland Security may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises: 1) who have a significant ownership interest in the startup of at least 15 percent, and have an active and central role to its operations; 2) whose startup was formed in the United States within the past three years; and 3) whose startup has substantial and demonstrated potential for rapid business growth and job creation.

While demonstrating the substantial and potential rapid business growth and job creation, the entrepreneur is required to prove that the entity is either 1) receiving significant investment of capital of at least $345,000 from certain qualified U.S. investors with established records of successful investments, or 2) receiving significant awards or grants of at least $100,000 from certain federal, state or local government entities. It is essential to note that entrepreneurs can attempt to partially satisfy one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

This proposed rule will potentially allow entrepreneurs to be granted an initial stay of up to two years to oversee and grow their startup entity in the United States.  Another request for re-parole, for up to three years, may be considered if the entrepreneur and the startup entity continue to provide specific benefits, such as increases in capital investment, increases in revenue, and/or increases in job creation.

The proposed rule has been published in the Federal Register inviting public comment for 45 days.  Now, we just have to wait and see what the comments from the public, how it is received by the USCIS, and then what type of Final Rule will actually be published.

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— Terry Olsen is the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee.  His practice areas include both employment and family immigration law.  He is chair of the TBA’s Immigration Law Section and may be contacted at tolsen@tlolaw.com or (423) 648-9390. 

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Expansion of the Provisional Unlawful Presence Waiver Process

On July 29, 2016, the Department of Homeland Security published a final rule expanding the availability of the provisional unlawful presence waiver to certain individuals who are family members of U.S. Citizens (“USC”) and Lawful Permanent Residents (“LPR”), and who are statutorily eligible for immigrant visas. The purpose of the rule, per the announcement by the U.S. Citizenship and Immigration Service (“USCIS”), is to “promote family unity by reducing the time that eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.”

As background, INA §212(a)(9)(B) imposes a three-year bar to readmission on a person who has accrued more than 180 days of unlawful presence in the U.S. The bar is triggered upon departure from the U.S. If the individual accrues one year or more of unlawful presence, his or her departure will trigger a 10-year bar. These bars to admission come into play when an individual is preparing to apply for U.S. permanent residence. Despite having an approved immigrant petition, an individual who is present in the U.S. without having been inspected and admitted/paroled may not apply to adjust his or her status to LPR in the United States. Instead, the individual must depart the U.S. and apply for an immigrant visa at a U.S. Consulate or Embassy abroad. This departure may trigger one of the above-referenced bars to readmission.

The three- or 10-year bars to readmission can be waived if the applicant can demonstrate that the refusal of admission would cause “extreme hardship” to a USC or LPR spouse or parent. However, the waiver process often resulted in the applicant being delayed outside the U.S. for significant periods of time. In order to promote family unity and avoid such lengthy separation, in 2013, the USCIS implemented the “provisional” unlawful presence waiver. This rule allowed applicants processing for permanent residency as an immediate relative of a USC (i.e., spouses and children, and parents of adult USCs) to apply for a waiver of unlawful presence prior to departing the U.S. to apply for an immigrant visa. Once the waiver was approved, the individual could depart the U.S., and process for an immigrant visa without delay.

The new rule that took effect on Aug. 29, 2016, expands the applicability of the provisional unlawful presence waiver to any family member of a USC or LPR applying for permanent residency under any type of petition (e.g. family based, employment based, diversity lottery, special immigrant, etc.). To qualify for a provisional waiver, applicants must still establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not permitted to return to the United States. Of note, while the new rule does not address the “extreme hardship” standard in the new rule, the USCIS is expected to update its Policy Manual to provide guidance regarding such determination (the proposed guidance having been released on Oct. 7, 2015).

One major change that the 2016 rule brings about is in the standard of review. Under 8 CFR §212.7(e)(4)(i), the USCIS must deny a provisional waiver application if it has “reason to believe” the applicant may be subject to a ground of inadmissibility other than unlawful presence at the time of the immigrant visa interview. The source of much confusion, this standard appeared to have received an overly rigid interpretation by the USCIS, resulting in arguably wrongful denials of numerous applications. In the 2016 rule, the USCIS has eliminated the “reason to believe” standard, looking instead only to whether extreme hardship has been established and whether the applicant warrants a favorable exercise of discretion.

Despite the clear benefits brought about by this new rule, applicants should be aware that there are still risks involved in the process. For example, the USCIS will continue to conduct a full background and security check on the applicant, and possibly still deny the applicant as a matter of discretion. Further, should the Department of State find the applicant ineligible for an immigrant visa or inadmissible on grounds other than unlawful presence, the provisional waiver approval will be automatically revoked (keeping in mind that at this point, the applicant will have traveled outside the U.S. to apply for the immigrant visa). While the applicant may still apply for a waiver of unlawful presence and for any other waivable ground of inadmissibility (i.e., using Form I-601), he or she must remain outside the U.S. while the waiver application is adjudicated.

On a final note, be aware that a revised version of Form I-601A, Application for Provisional Unlawful Presence Waiver, went into effect on Aug. 29, 2016, and older versions are not being accepted.

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— Kate Tucker is a partner at Kramer Rayson LLP in Knoxville. She earned her law degree from William and Mary College of Law in 2001. She is admitted to the state bar of Tennessee and the U.S. District Court for the Eastern District of Tennessee. Her primary practice areas include business immigration and employment law. She may be contacted at ktucker@kramer-rayson.com.

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What Will Increase in Immigration-Related Fines Mean for Employers?

Effective August 1, 2016, the penalties for a number of immigration-related violations before Immigration and Customs Enforcement (ICE), within the Department of Homeland Security, and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Department of Justice, have significantly increased through a new regulation. The new regulation applies to violations that took place after November 2, 2015.

Paperwork Violations

The regulation increases “paperwork violations” (substantive or uncorrected technical violations) related to I-9 forms from a maximum of $1,100 to $2,156.  The minimum penalty per violation increases from $110 to $216. The penalties will also increase for those violations which had been between $275 and $935 depending on the percentage of I-9 forms with substantive errors, including the failure to prepare an I-9 form for an employee.

Unlawful Employment of Undocumented Immigrants

Under the new rule, the minimum penalty for the unlawful employment of undocumented immigrants jumps from $375 to $539, while the maximum goes from $3,200 to $4,313. And that’s just for a first order. For a second order, minimum penalty for the unlawful employment of immigrants increases to $3200 to $4313, while the maximum goes from $6,500 to $10,781.  Employees who receive three or more orders face a new minimum penalty of $6,469 and maximum penalty of $21,563 for unlawfully employing immigrants.

OSC Violations

For unfair immigration-related employment practices, those cases enforced by the OSC, a first order will cost a new top penalty of $3,563 per person discriminated against, up from $3,200. The minimum penalty increased from $375 to $445. For second orders, the minimum penalty increases from $3,200 to $3,563 while maximum penalty is $8,908. For subsequent orders, the minimum penalty increases to $5,345 while maximum penalty is $17,816.

Document Abuse

OSC also enforces the law related to document abuse. These penalties were also increased. The minimum penalty per violation increased from $110 to $178 while the maximum penalty increased from $1,100 to $1,782. 

Document Fraud Violations

For document fraud violations, the increases are substantial. For a first offense, the minimum penalty increases from $375 to $445 while maximum penalty is up from $3,200 to $3,563. For subsequent orders, the minimum penalty increases to $3,563 while maximum penalty is $8,908.

Meaning to Employers – Internal I-9 Audits

So what does this mean to employers besides greater liability for immigration-related violations? One is the importance of an internal I-9 audit to locate and correct errors before ICE and/or OSC come knocking on your door. If the potential liability for an employer is going to drastically increase, then employers should be more willing to engage in internal I-9 audits.

As I discussed in a previous article, ICE and OSC issued guidance on how to conduct an internal I-9 audit. This guidance is even more important now with liability increasing for violations located by the government agencies. And in conducting such an internal audit, it is important to be guided, conducted or supervised by experienced employer immigration counsel who knows what violations to look for and how to properly correct them.

Meaning to Employers – Less Employment of Undocumented Workers?

Will the increase in penalties for knowingly employing undocumented workers result in employers employing less undocumented workers? This seems unlikely as the penalties for a first offense for this violation are only increasing by about 25%, which seems unlikely to deter employers. On the other hand, the maximum penalty of $17,816 for three or more violations in knowingly employing undocumented workers may be enough to act as a deterrent. Only time will tell.

Meaning to Employers – More OCAHO Litigation

I would anticipate the substantial increase in the fines to lead to significantly more OCAHO litigation since historically OCAHO reduces the penalties by between 30 and 45% from the penalties assessed by ICE. More litigation before OCAHO will put a great strain on OCAHO as they do not have any permanent Administrative Law Judges after one retired and the other transferred to another government agency.  This will likely lead to a lengthier period between the issuance of a Complaint and a decision.

This leads to an interesting question – will ICE and OCAHO legal counsel be more willing to compromise on the penalties in order to avoid lengthy delays in litigation. And will their supervisors put more pressure on them to reach these negotiated settlements in order to avoid clogging the court docket. Again, only time will tell on these situations.

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— Bruce E. Buchanan is a founding partner at the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. He is editor of this newsletter and past-chair of the TBA’s Immigration Law Section. Bruce writes a blog on employer immigration compliance located at www.EmployerImmigration.com and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professionals Magazine. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

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Letter from Editor

I would like to thank Terry Olsen and Kate Tucker for their insightful articles in this issue. I am always looking for writers; so, if you would like to write an article, please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266.

— Bruce Buchanan

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800+ Immigrants Mistakenly Granted Citizenship

The U.S. government has mistakenly granted citizenship to at least 858 immigrants from “special interest countries” – those with national security concerns or with high rates of immigration fraud – according to a Department of Homeland Security audit released Monday. The department’s inspector general found that the immigrants used different names or birth dates to apply for citizenship and were not caught because their fingerprints were missing from government databases. The report also found that fingerprint records are missing for as many as 315,000 immigrants with final deportation orders or who are fugitive criminals. WRCB-TV has the story from the Associated Press.

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Justice Department Made Error in Data Provided to Court

The U.S. Justice Department has told the Supreme Court that it made “several significant errors” when providing information about immigrant detentions for a 2003 case, the ABA Journal reports. The department recently reviewed statistics for an upcoming case and discovered it had underestimated the time some immigrants spend in detention. It now says the time is closer to one year rather than the five months originally claimed. The court called the five-month period a “very limited time of detention” and relied on that fact in deciding it was constitutional to deny bail to immigrants with criminal records who were being held while appealing their deportation order.

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New Entrepreneurial Visa Proposed

The U.S. Citizenship and Immigration Services proposed a new rule Friday that would allow international entrepreneurs additional years of U.S. residency to start and build their businesses, the Upstart Business Journal reports. The International Entrepreneur Rule would allow startup founders to stay in the United States for up to two years, followed by a period of up to three years if they meet “additional benchmarks.” Factors to be considered include the entrepreneur’s ownership stake and leadership role, the growth potential of the startup, success in securing competitive research grants, and investment by qualified American investors.

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Trump: Values Test, ‘Extreme Vetting’ for Immigrants

In a speech today, Republican presidential nominee Donald Trump called for “extreme vetting” of immigrants and use of a new ideological test to assess an immigrant's likely support for "American values" of tolerance, pluralism and religious freedom. It is the latest version of his position, which began with a call to temporarily bar all foreign Muslims and then morphed into a temporary ban on immigrants from areas with a history of terrorism. WRCB-TV has more from the Associated Press.

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Lawyers Donate $76,000 to Access to Justice Efforts

More than $76,000 has been donated by Tennessee attorneys to organizations that serve low-income individuals in need of legal assistance, the Administrative Office of the Courts reports. The donations come as part of the annual licensing registration process. Starting in 2015, attorneys were given the option to donate to an Access to Justice Fund when renewing their licenses. Organizations receiving funds this year are the Community Legal Center, Disability Rights Tennessee, Legal Aid of East Tennessee, Legal Aid Society, Memphis Area Legal Services, Southeast Tennessee Legal Services, Tennessee Coalition to End Domestic and Sexual Violence, Tennessee Justice Center, Tennessee Justice for Our Neighbors, Volunteer Lawyers and Professionals for the Arts, and West Tennessee Legal Services.

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An Overview of Cancellation of Removal and Updates on the Continuous Presence Requirement

By: Christine Dickerson de Galindo*

One of the two most requested forms or relief for my clients is cancellation of removal.  Many of my undocumented clients will state “I’ve been here 10 years, I can get papers.” Unfortunately, the process is not that easy. Just by the numbers, in fiscal year 2015, of the 63,929 applications for relief processed by immigration courts, 17,211 of them were approved, 2,583 of those were for cancellation of removal for lawful permanent residents (LPRs) and only 235 were for cancellation of removal for non-LPRs.[i]  This is a very small success rate and those odds should be clearly communicated to your client. The main reason for such low odds is the extremely high burden of proof for non-LPR respondents. 

Under INA § 240A(b), cancellation of removal for non-LPRs, the respondent must prove he has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of the Notice to Appear (NTA). Continuous presence ends by a departure from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days, service of an NTA or the respondent’s commission of an offense that makes him inadmissible, whichever is earliest.[ii] Two recent cases have clarified this somewhat.  In Matter of Castrejon-Colino, the BIA determined that a voluntary departure or return does not break the alien’s continuous physical presence for purposes of cancellation of removal under 240A(b) in the absence of evidence that he was informed of and waived the right to such a hearing.[iii]  In this case, the respondent had voluntarily returned to Mexico after being caught at the border, fingerprinted and having his photo taken; however he was never informed of his right to a hearing before an IJ and reentered the United States within days. The BIA determined this short departure, which was not understood by the respondent to be in lieu of removal proceedings did not break the continuous presence requirement. In another case, the BIA determined that service of an NTA does not stop the clock for purposes of the continuous presence requirement when it is not properly filed with the Immigration Court.[iv]

In addition to the continuous presence requirement, the non-LPR respondent must also be a person of good moral character during the 10-year period [v]; not have been convicted of an offense under sections 212(a)(2), 237(a)(2), or 237(a)(3) of the Immigration and Nationality Act; and prove that his removal would result in exceptional and extremely unusual hardship to his spouse, parent or child, who is a United States citizen or lawful permanent resident. 

In my experience, most clients do not meet the last requirement. The exceptionally and extremely unusual standard is discussed at length in Matter of Monreal .[vi]  To demonstrate “exceptional and extremely unusual hardship,” the respondent must show that the hardship to his qualifying relative “is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here and may include the ages, health, and circumstances of qualifying relatives.” The court may also consider whether the alien has other opportunities to immigrate, but only insofar as it affects the hardship to the qualifying relative. Even if he meets all of these statutory requirements, the IJ still has the discretion to deny him relief. It is the respondent’s burden to demonstrate he merits the grant of removal as a matter of discretion.[vii]

Cancellation of removal for a LPR, on the other hand is a much more straightforward process. To be eligible for cancellation of removal, an LPR must show he has been an LPR for not less than five years; has resided in the United States continuously for seven years after having been admitted in any status; and has not been convicted of any aggravated felony.[viii] Usually, the crime, is it an aggravated felony, is the issue before the court. Without the crime, the LPR would not be in Immigration Court Proceedings.


[i] https://www.justice.gov/sites/default/files/pages/attachments/2016/04/08/fy2015sybnotice_04082016.pdf. Unfortunately, the statistics do not parse out what percentage of applications for relief was for cancellation of removal. Additionally, requests for voluntary departure do not count for statistical purposes as applications for relief.

[ii] INA § 240A(d)(1) et seq

[iii] Matter of Castrejon-Colino, 26 I&N Dec. 667 (BIA 2015).

[iv] Matter of Ordaz-Gonzalez, 26 I&N Dec. 637 (BIA 2015).

[v] As defined in INA § 101(f).

[vi] Matter of Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001).

[vii] INA § 240(c)(4)(A).

[viii] INA § 240A(a).

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*  Christine Dickerson de Galindo is a graduate of Washburn University School of Law practicing family immigration in Nashville.

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Tennessee Becomes a Mandatory E-Verify State

By Bruce E. Buchanan*

Tennessee has joined many other southern states – Alabama, Georgia, Mississippi, North Carolina and South Carolina — in passing mandatory E-Verify, effective Jan. 1, 2017, though it is eliminating many small employers from coverage.

Brief History of E-Verify

E-Verify originated as a program called Basic Pilot in 1997. As a federal law, an employer has never been required to enroll unless you were a federal contractor or sub-contractor who met certain dollar amounts for projects.  However, some states have passed laws requiring the use of E-Verify. Arizona’s E-Verify law was not found to be preempted by federal law, Immigration Reform and Control Act, and was upheld by the U.S. Supreme Court in Chamber of Congress v. Whiting, 563 U.S. 582 (2011). Over the past five to 10 years, some states besides Arizona, mainly in the south, have passed laws requiring the use of E-Verify by all employers for working in those states. Many other states require state contractors to utilize E-Verify for newly-hired employees.

Tennessee’s 2012 Law

Effective Jan. 1, 2012, for large employers, and Jan. 1, 2013, for all employers with six or more employees, the Tennessee Lawful Employment Act (TLEA) made Tennessee a unique non-mandatory E-Verify state. Under that law, an employer may enroll and use E-Verify for newly-hired employees, or it may copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization card, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees. The TLEA, even as amended, requires “non-employee” individuals providing labor or services to an employer, to produce one of the above documents but not face E-Verify verification.

Tennessee’s New E-Verify Law Effective in 2017

During the 2016 legislative session, the TLEA was amended in several ways, the most important being that employers with 50 or more employees must use E-Verify for newly-hired employees.[i] E-Verify has never allowed its use for current employees except under certain circumstances with federal contracts. The new law is effective on Jan.  1, 2017. The old law still exists for employers with 6 to 49 employees, who are hiring new employees. The new law’s passage was fairly quiet compared to the legislative fight in 2011.

The second most important amendment to the TLEA is that it strengthens the penalties so that an employer faces a fine of $500 per day if it fails to remedy its E-Verify violation within 45 days of the state’s order. The existing penalties continue to be in effect. These are:  First offense - $500 penalty + $500 per unverified employee or copy of documentation not maintained; Second offense - $1,000 penalty + $1,000 per employee not verified or copy of documentation not maintained; and Third offense - $2,500 penalty + $2,500 per employee not verified or copy of documentation not maintained. The same penalties apply to non-employees.

Takeaways

For all employers with 50 or more employees, it would be wise to retain experienced employer immigration compliance, a person who can explain the various nuances of E-Verify. Unfortunately, it is easy to run afoul of E-Verify without even knowing it.


[i] The statute does not specifically state how the 50 employees are to be counted, within the state or nationwide, but other states have used the nationwide standard.

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* Bruce E. Buchanan is a founding partner at the Nashville and Atlanta offices of Sebelist Buchanan Law PLLC. He is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. He is editor of this newsletter and past-chair of the TBA’s Immigration Law Section. Bruce writes a blog on employer immigration compliance located at www.EmployerImmigration.com and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog and HR Professionals Magazine. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.

** This article was part of a larger article on E-Verify in the south published in July by HR Professionals Magazine and used with permission.

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Modernizing PERM

By David Jones*

The Department of Labor’s (DOL) Program Electronic Review Management (PERM) labor certification process took effect on March 28, 2005. At the time, the system was intended to be a largely automated process that would yield quicker results by mandating specific recruitment methods, instead of the in-good-faith recruitment that had been required, and prohibiting the modification of the application form once submitted. Given the long processing times for labor certification, a speedier, more automated process was welcomed. Over time, however, the process slowed considerably, the mandated recruitment steps became severely outdated, and the inability to correct even an immaterial typographical error resulted in outrageous denials.

Problems with the ETA 9089 Form, which is used to file a PERM labor certification, as well as the program’s inability to keep pace with the times, have likely also caused an increase in appeals to the Board of Alien Labor Certification Appeals (BALCA). At the 2016 American Immigration Lawyers Association (AILA) National Conference in Las Vegas, BALCA reported that there is currently a backlog of around 4,000 cases, and that in the last three years, more than 10,000 cases were docketed. The three previous years only had 2,000 cases. One issue contributing to the appeals had to do with the DOL denying PERMs for failure to list a beneficiary’s special skills on the ETA 9089, despite the fact that there is no place on the form to do so. This particular matter resulted in the DOL reopening PERMs that had been filed before July 28, 2014, when it issued an FAQ for a workaround on the issue. Another concern generating a flow of appeals has to do with the concept of “harmless error,” and the statutory requirement that PERM applications must be free of errors.[i]

It is in this context that President Obama announced on Nov. 20, 2014, among other immigration executive actions, plans for the DOL to take "regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected."[ii] In response to President Obama’s mandate and in recognition of changes in the job market and the increased demand for labor certification, the DOL initiated a review of the PERM program and regulations to look at:

·       “Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

·       Methods and practices designed to modernize U.S. worker recruitment requirements;

·       Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;

·       Ranges of case processing timeframes and possibilities for premium processing; and

·       Application submission and review process and feasibility for efficiently addressing nonmaterial errors.”[iii]

After more than a year of review, the DOL submitted to the Office of Management and Budget (OMB) the proposed rule: “Modernizing the Permanent Labor Certification Program (PERM)” on March 9, 2016, and the pre-rule: “Labor Certification for Permanent Employment of Foreign Workers in the United States; Revising Schedule A” on March 31, 2016. The rules are not presently available for public inspection until OMB concludes its review and the DOL publishes them in the Federal Register. The abstracts, however, state the following:

Modernizing the Permanent Labor Certification Program (PERM)

….The Department of Labor (Department) has not comprehensively examined and modified the permanent labor certification requirements and process since 2004. Over the last ten years, much has changed in our country's economy, affecting employers' demand for workers and the availability of a qualified domestic labor force. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM process frequently do not align with worker or industry needs and practices. Therefore, the Department is engaging in rulemaking that will consider options to modernize the PERM program to be more responsive to changes in the national workforce, to further align the program design with the objectives of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.[iv]

Labor Certification for Permanent Employment of Foreign Workers in the United States; Revising Schedule A

The Department of Labor's (Department) Employment and Training Administration (ETA) is considering updating Schedule A of the permanent labor certification process at 20 CFR 656.5. For this reason, the Department is issuing this Request for Information (RFI) so that the public may provide input on whether Schedule A serves as an effective tool for addressing current labor shortages, and how the Department may create a timely, coherent, and transparent methodology for identifying occupations that are experiencing labor shortages in keeping with the requirements of the Immigration and Nationality Act (INA)….[v]

The schedule A regulations are presently in the “Request for Information” stage, meaning it may be quite some time before anything moves forward on that end. For the Modernization regulations, however, once OMB concludes its review, if no changes are recommended, the DOL would move forward to publish the regulations for comment. At the 2016 AILA conference, the DOL reaffirmed its hope to release the rule during the current administration and preferably in the next few months.

Based on public sessions with the DOL during the review process, it is anticipated that the changes will include, among others, updating PERM advertising and other recruitment requirements to make them more consistent with current business practices and permitting employers to correct harmless errors in pending PERM applications.

Further, at recent conferences, there also has been discussion about a fee-based system. At a 2016 conference in Washington, D.C., William Rabung, Director of Operations for the Office of Foreign Labor Certification, stated that the DOL is attempting to obtain statutory authority to become a fee-funded agency. If that is approved, the DOL would have to determine what those fees would be and then put the proposal through the rulemaking process. As such, it will be a while before any fees would be implemented. When asked about the possibility of premium processing fees, Rabung stated that they need to address the process of collecting fees, if at all, first.

While there is still a great deal of uncertainty regarding what PERM modernization really means and when we will have it, the prospect of no longer having to pay thousands of dollars for newspaper ads and the ability to correct a typo on a PERM application in the relatively near future presents exciting possibilities.

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*David Jones is a partner in Fisher & Phillips’ Memphis office. He practices exclusively in the area of immigration and related employment and compliance matters. Jones graduated from University of Florida School of Law in 1979 and University of Memphis, magna cum laude, in 1995. He may be reached at djones@fisherphillips.com or 901-333-2072.


[i] See In the Matter of HealthAmerica, No. 2006-PER-00001 (BALCA, Jul. 18, 2006) on Harmless Error and In the Matter of Kams Automotive Inc., case number 2012-PER-00805, reaffirming that PERM applications must be “letter-perfect.”

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Letter from the Editor

I would like to thank David Jones and Christina Dickerson de Galindo for their worthwhile articles in this issue. I am always looking for writers; so, if you would like to write an article, please feel free to contact me. I may be contacted at bbuchanan@sblimmigration.com or 615-345-0266.

Bruce Buchanan

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DOJ Asks Court to Rehear Immigration Case

The U.S. Department of Justice yesterday asked the Supreme Court for a rehearing of a case challenging President Barack Obama’s executive actions on immigration as soon as a ninth justice is appointed. The administration said there should be a definitive decision on the merits of the executive actions instead of the 4-4 split by the high court that left an appellate court decision striking the actions in place, but did not set precedent on the issue. WRCB-TV has the Associated Press story.

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ACLU Vows to Challenge Numerous Trump Policies

The ACLU is vowing to file constitutional challenges to several of presumptive Republican presidential nominee Donald Trump’s policies if he is elected and tries to implement them. These include Trump’s call for a “total and complete” ban on Muslims entering the United States, creation of a “deportation force” to round up the undocumented, surveillance or registration of mosques and American Muslims, use of waterboarding, changes to libel laws so media outlets can be sued, bulk collection of metadata, and punishment for doctors who perform abortions. The ABA Journal looks at the ACLU's positions.

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No Refugee Resettlement Suit from State AG

Tennessee Attorney General Herbert Slatery will not sue the federal government over its refugee resettlement program, the Tennessean reports. In a letter yesterday to the clerks of the state Senate and House of Representatives, Slatery responded to a General Assembly resolution passed earlier this year that demanded legal action. The letter delegates authority to sue to the General Assembly’s staff attorneys, should lawmakers still wish to pursue legal action.

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Deadlocked High Court Halts Obama Immigration Orders

The Supreme Court today issued rulings on several pressing issues including affirmative action, discrimination and immigration. The court’s 4-4 ruling on President Obama’s executive actions on immigration means that a lower court ruling blocking the programs will remain in effect. In Tennessee, immigrant advocates expressed outrage. “This is a devastating loss, not only for affected families but for our entire state,” Tennessee Immigrant and Refugee Rights Co-Executive Director Stephanie Teatro told The Tennessean. Attorney General Herbert Slatery, however, hailed the decision, saying "this lawsuit is not about immigration. It is about the rule of law, presidential power, and the structural limits of the U.S. Constitution." The Supreme Court also upheld the University of Texas's practice of using applicants’ race as a factor in admissions. The 4-3 ruling greenlights the limited use of affirmative action policies by schools, CNN reports. The court also ruled 7-1 in favor of a Georgia death row inmate’s discrimination claim. The ruling found, in part, that prosecutors made a “concerted effort to keep black prospective jurors off the jury.”

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Court Still to Rule on Most Controversial Cases

The U.S. Supreme Court issued five decisions Monday, including rulings (1) upholding a patent review procedure known as inter partes review, which has been used by Apple and Google to invalidate patents; (2) directing lower courts in Alabama, Louisiana and Mississippi to re-examine three convictions for evidence of racial prejudice in jury selection; and (3) directing the U.S. Labor Department to do a better job of explaining why it is changing a longstanding policy on whether certain workers deserve overtime pay. With just one week left in the court’s current term, however, the most contentious cases still need to be resolved, including regulation of Texas abortion clinics, the use of race in college admissions, the legality of the president’s immigration executive orders, and the public corruption conviction of Virginia’s former governor. WKRN looks at the remaining cases.

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Pro Bono CLE: Immigrant Children and Tennessee Family Courts

A live broadcast CLE Friday at several Baker Donelson offices will train non-immigration-law practitioners on how to aid eligible unaccompanied children with obtaining predicate state court orders for Special Immigrant Juvenile Status. Immigrant Children and Tennessee Family Courts: Challenges and Avenues for Relief is scheduled from noon - 2 p.m. EDT and approved for two hours of CLE credit. The course is free if you agree to take a case pro-bono. You may choose the location you want to attend through the online registration.

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Join Us at the 135th Annual TBA Convention for the TBA Immigration Law Section Meeting!

Please make plans to join the TBA Immigration Law Section for a business meeting that will be held in conjunction with 2016 TBA Convention. The TBA Immigration Law Section meeting is scheduled as follows:

Date/Time:

Friday, June 17, 2016
11 – Noon Central / Noon – 1 p.m. Eastern Time

Location:

Sheraton Music City Hotel
777 McGavock Pike
Nashville, TN 37214
(615) 885-2200

Room Location – General Thomas Room

A conference call will be available for those unable to attend in person. The following are the instructions for joining the call:

You will dial in on the following number: 1-855-795-9620

You will then be prompted to enter the following conference ID number, followed by the pound (#) sign: 4424167#

There is still time if you would like to register for TBA Convention. You may register online or by calling the TBA at (615) 383-7421.

You do not have to be registered for Convention to attend this Section meeting.  We hope to see you there!

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Judge Asked to Issue Warrant in International Custody Dispute

A pair of Memphis attorneys have asked Chief U.S. District Judge Tom Varlan to issue an arrest warrant for an undocumented immigrant, who is currently missing with her son. The request is on behalf of the boy’s father. Varlan last month ordered the mother, who was living illegally in Knoxville, to return the boy to Mexico in a rare case brought under The Hague Convention of 1980 International Child Abduction Remedies Act. Read more from the Knoxville News Sentinel

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JFON to Host Seminar May 19 in Nashville

Tennessee Justice for Our Neighbors will host a seminar in Nashville for lawyers and paralegals who want to help unaccompanied immigrant children remain in the United States. The seminar is planned for May 19, 2-5 p.m. at Casa Azafran, 2195 Nolensville Pike. Online pre-registration for the course is required. The event is free, but contributions are welcome. 

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