By Bruce Buchanan*

     The Tennessee Lawful Employment Act became effective on January 1, 2012 for employers with 500 or more employees and governmental entities.  Under the new laws, employers may enroll and use E-Verify for newly-hired employees, or it may accept, copy and maintain a state-issued driver’s license or identification, unexpired U.S. passport, permanent resident card, work authorization, birth certificate, certificate of naturalization, or a few other forms of identification from newly-hired employees.

     You will note the documents above are redundant of documentation needed for I-9 verification.  The only real difference is the requirement to maintain a copy of the identification document.  Under the Immigration Reform and Control Act (IRCA), an employer is not required to maintain a copy of the presented documents from List A or Lists B and C, only review them and record the information on the I-9.

     A second provision in the law involves a “non-employee” providing labor or services to an employer.  A “non-employee” is defined as “any individual, other than an employee, paid directly by the employer in exchange for the individual’s services.”  If an employer contracts with an individual/non-employee, it must request and maintain a copy of one of the specified documents, such as state-issued driver’s license or identification.   However, a subcontractor, who is not an individual, is not covered by this provision under the definition of non-employee.

     An employer violates the law by failing to receive E-Verify confirmation or to request and maintain a copy of one of the specified identification documents. An employer has a “safe harbor” and cannot be found to have violated the law by employing an employee without work authorization if the employer utilized E-Verify and received a confirmation or the employee appealed the tentative non-confirmation and the appeal has not been resolved. This “safe harbor” is not available for employers who copy and maintain an employee’s driver’s license or identification if the employee is found to be working without employment authorization.

     The Tennessee Lawful Employment Act is being phased in.  Employers with 200 to 499 employees must comply by July 1, 2012 while employers with six to 199 employees by January 1, 2013. Employers with five or fewer employees are exempt from the law.

     Any lawful resident of Tennessee or a federal agency employee may file a complaint with the Tennessee Department of Labor and Workforce Development, which will investigate such complaints.  This provision is an extension of the current law which only allows state or local officials to file a complaint alleging an employer’s employment of an unauthorized worker.

     The penalties for the new law are: First offense  - $500 penalty + $500 per employee or non-employee not verified or copy of documentation maintained; second offense - $1,000 penalty + $1,000 per employee or non-employee not verified or copy of documentation maintained; and third offense - $2,500 penalty + $2,500 per employee or non-employee not verified or copy of documentation maintained.

     One unanswered question is how is the number of employees employed by a company determined – all employees employed in Tennessee or all employees nationwide, if a company has employees in other states.  The statute is silent on this matter, which implies the number of employees is based on overall employees, not just Tennessee employees. If so, then does the Tennessee statute require the company in non-Tennessee locations to maintain a copy of an I-9 document in order to be consistent companywide? If so, does this create a federal preemption issue with IRCA?

     After the law passed in 2011, it appeared its proponents would attempt to amend the statute in 2012 to make E-Verify mandatory. However, it appears the 2012 legislature has decided to not concentrate on making E-Verify mandatory; rather, it is focusing on a limited number of immigration bills.

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*Bruce E. Buchanan is an attorney at the Nashville office of Siskind Susser, P.C., where he represents employers in immigration, labor, and employment law, as well as individuals in immigration law.  He graduated from Vanderbilt University School of Law in 1982. He is the Chair of TBA’s Immigration Law Section as well as editor of Immigration Law Section Newsletter and TBA's Labor and Employment Law Newsletter. Mr. Buchanan is a guest blogger for E-Verify and I-9 News located at http://everifyandi9news.com, covering immigration compliance issues. He may be reached at bbuchanan@visalaw.com or 615-345-0266.

By Vinh Duong *

     In recent months, the U.S. Department of Labor (DOL) has been aggressively investigating employers for H-1B Labor Condition Application (LCA) violations.  As the DOL ramps up its Wage and Hour audits, it is critical that employers sponsoring H-1B workers for employment have their Public Access Files in order and have an understanding of who may inspect a Public Access File.

     The Immigration and Nationality Act created the H-1B category for temporary employment of foreign workers in the United States in specialty occupations or as fashion models.  The intent of the H-1B program was to aid employers who could not otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the employment of qualified international workers in the United States.  The law established certain standards in order to protect similarly employed U.S. workers from being adversely affected by the employment of the international workers, as well as to protect the H-1B workers.

     Under the law, DOL’s Employment Training Administration (ETA) certifies the conditions that an employer must attest to on the LCA.  Once ETA has certified the LCA, the employer must provide it, along with the I-129 Petition for Nonimmigrant Worker, to the USCIS.  The petition includes some of the same information as the LCA, and as part of its review, USCIS reviews information on both documents to determine whether the job meets the requirements of a specialty occupation and whether the petition indicates that the qualifications of the prospective H-1B worker meet the statutory requirements in that specialty.  Once an employer obtains the certified LCA and approved petition, the DOL’s Wage and Hour Division (WH) enforces the attestations in the LCA, which include the material facts and labor condition statements.

     Under the H-1B program, WH is responsible for ensuring that H-1B workers are receiving the wages promised on the LCA and are working in the occupation and at the location specified.  WH can only initiate H-1B-related investigations as a result of one of four factors: (1) WH receives a complaint from an aggrieved person or organization; (2) WH receives specific credible information from a reliable source that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees; (3) Secretary of Labor has found, on a case-by-case basis, that an employer, within the last five years, has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA; or (4) if the Secretary of Labor has reasonable cause to believe that the employer is not in compliance, the Secretary may certify that an investigation be conducted. When violations are found, WH may assess civil money penalties and other remedies, including back wages depending on the type and severity of the violation. 

     Within 15 days of the date of the notification by WH to the employer that a determination of violations has been made, any interested party may request a hearing before an administrative law judge (ALJ) on the WH’s determination.  Within 30 days of the decision by an ALJ, an interested party may request a review of the ALJ’s decision by the DOL’s Administrative Review Board.  Employers found to have committed certain violations may also be precluded from future access to the H-1B program (debarment) and other immigration programs for a period of at least one year.

Labor Condition Application -

     Employers seeking to sponsor foreign workers for H-1Bs are required to maintain a Public Access File which contains documentation supporting LCA filed online with the DOL.  The LCA requires employers to attest to the following: they will pay the higher of the actual wage or the prevailing wage and offer benefits to  H-1B workers on the same basis as offered to U.S. workers; they will provide working conditions that will not adversely affect similarly employed U.S. workers; there is no strike, lockout or other work stoppage in the occupational classification at the place of employment; they will notify the bargaining representative, if any, or post a notice that the LCA is being filed; andthey will provide the H-1B worker with a copy of the certified LCA.

Public Access File -   

     In order to demonstrate compliance with the LCA, employers are required to maintain a Public Access File available for public inspection.  Within one working day of filing the LCA with the DOL, employers must make the Public Access File available for public inspection.  The Public Access File must be kept either at the employer's principal place of business in the U.S. or at the place of employment.  DOL has the authority to enforce an employer’s LCA obligations and may audit the Public Access File.

     The Public Access File must contain the following: copy of the certified LCA; copy of the LCA cover pages; documentation which provides the wage rate to be paid to the H-1B worker; actual wage system memorandum; prevailing wage documentation;  summary of the benefits offered to U.S. workers in the same occupational classification as the H-1B worker(s), and if there are differences, a statement as to how differentiation in benefits is made; Notice of Filing of the LCA, evidencing that the LCA was physically posted in two conspicuous locations at the worksite(s) where the H-1B employee will work; and acknowledgment of receipt of the LCA by the H-1B employee. 

Retention of records-

      Either at the employer's principal place of business or at the place of employment, the employer must retain copies of the Public Access File for one year beyond the period indicated in the LCA or, if a complaint is filed, until the complaint is resolved.  Required payroll records for H-1B employees and other employees in the occupational classification shall be retained at the employer's principal place of business or at the place of employment for a period of three years from the date(s) of the creation of the Public Access File, except if an enforcement action is commenced, all payroll records shall be retained until the enforcement proceeding is completed.

Required Wage-

     All H-1B employers must keep documentation establishing that they are paying the required wage for the position.  The “required wage” is the greater of the actual wage or the prevailing wage.  All H-1B employers must also maintain payroll records for all other employees in the same position as the H-1B employee with similar experience, education, and qualifications. 

Inspecting a Public Access File -

     According to the U.S. Department of Labor’s Field Operations Handbook, the “public access file shall be made available to members of the public (including employees) who request it.”  This sounds straight-forward enough, right?  May a member of the public appear unannounced at an employer’s principal place of business or place of employment and ask to inspect the Public Access File?

     To ensure that members of the public have proper access to the Public Access File, employers should implement the following practices:  all requests to inspect the Public Access File must be made in writing and acted upon as soon as possible, but no later than the end of the third business day following the request;  member of the public who asks to inspect the Public Access File must do so in writing and provide his/her name, mailing address, daytime telephone number and a description of the record(s) requested and identify the record with reasonable specificity; custodian of the Public Access File should set a date and hour at which time the file will be available for inspection; if the Public Access File is stored in electronic format, the custodian of the file must provide effective access to the requestor;  custodian of the file should retain control of the file at all times, meaning the requestor may not remove the file from the premises and may not photocopy any document(s) in the file;   custodian of the Public Access File may not charge a fee to inspect the file; and Public Access File must be available for inspection at all times during normal office hours.

     The steady uptick in H-1B wage and hour compliance investigations underscores how important it is for employers of H-1B workers to meet all the obligations of the LCA.  Employers, therefore, must understand the obligations imposed upon them by the LCA and develop and maintain the appropriate policies and mechanisms to ensure consistency and reduce the probability of non-compliance.  

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*Vinh Duong is a Partner at Waller Lansden Dortch & Davis LLP and leads the firm's Immigration and Nationality Practice.  For more information, please contact Vinh Duong (615.850.8936 or vinh.duong@wallerlaw.com).

By: Elaine H. Witty, Esq.*   

     On January 6, 2012, the United States Citizenship and Immigration Services (USCIS)  announced a proposed rule entitled, Provisional Waivers of Inadmissibility for Certain Immediate Relatives of U.S. Citizens.[i] The proposed rule would streamline the adjudication process of waivers of inadmissibility for immediate relatives of U.S. citizens. An immediate relative of a U.S. Citizen is defined as a spouse, parent (if the United States citizen is over age 21), or minor child (under age 21) in immigration law.[ii]

     There are various grounds of inadmissibility[iii] which can prevent an immigrant from legalizing status in the United States. The most common ground of inadmissibility is unlawful presence in the United States for at least 180 days or one year, on or after April 1, 1997.[iv] Unlawful presence for a period of 180 days subjects a person to a three-year bar to re-admission to the United States; a one year period of unlawful presence subjects a person to a 10-year bar to re-admission to the United States. The key is that the bar to re-admission is only triggered when an immigrant departs the United States.

     Current immigration law permits a U.S. citizen to petition for an immediate relative by filing a petition with the USCIS. If the immediate relative is subject to the 3/10 year bars, a green card cannot be processed domestically. Rather, the immigrant must go through “consular processing.” Consular processing means the immigrant will have to leave the United States and apply for re-admission at a U.S. Consulate or Embassy in their home country. As soon as the immigrant departs for the consular interview, the 3/10 year bars are triggered. Existing law permits a U.S. citizen to file for a waiver of the 3/10 year bars through a waiver process. This waiver process requires the U.S. citizen to demonstrate “extreme hardship” as to why the parties should not be separated for the duration of the applicable bar. The application or this waiver is made on USCIS form I-601 and is filed at the U.S. Consulate or Embassy having jurisdiction over the immigrant’s case.

     During the processing of the I-601 waiver for extreme hardship, the U.S. citizen and the immediate relative are separated. The processing time for these waivers runs from several weeks to 15 months. The USCIS is the sole adjudicator of extreme hardship waivers. The Department of State is responsible for issuing a visa once the ground of inadmissibility has been waived by the USCIS.[v]

     The proposed rule would permit the filing of a waiver of inadmissibility as it relates to the three and 10 year bars domestically prior to the immigrant departing the United States to attend a consular interview. This program is limited to immediate relatives of U.S. citizens whose only ground of inadmissibility is unlawful presence. If an immigrant has any other ground of inadmissibility such as crimes, prior immigration violations or orders of deportation, the immigrant may not utilize this program.

     The backlash from the government’s announcement stunned immigrant advocates and their attorneys. This is because the media and anti-immigrant organizations have portrayed this program as an amnesty, which it isn’t. What is missing in the discussion is the fact that current law has always permitted immigrants to file waivers of inadmissibility. The difference is that instead of having to file the waiver overseas and wait over one year, the U.S. citizen and the immediate relative can stay together without disrupting their familial life until a decision on the waiver is received. The waiver issued domestically is called a provisional waiver. It is not clear whether a positive finding of extreme hardship will be considered a legal finding.

     Based on the USCIS’ representations at a recent Stakeholder’s Meeting, it appears that if a positive adjudication on the waiver is received, the immigrant presents the waiver to the consular officer who, absent a finding of any other ground of inadmissibility, will proceed to issue a visa to the immigrant for re-admission to the United States. If another ground of inadmissibility is discovered by the consular officer, the immigrant will again submit evidence of extreme hardship for consideration by the USCIS officer having jurisdiction of that consular post.

     Questions remain about the provisional waiver process in the event a finding of extreme hardship is denied. It remains unresolved as to whether or not the USCIS will refer denied waiver cases to Immigration and Customs Enforcement (ICE) for commencement of removal (deportation) proceedings or if the immigrant will be afforded a time frame in which to depart the United States to continue with the consular processing of the green card. The USCIS expects its proposed rule to be finalized by the end of the 2012 calendar year.

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*Elaine H. Witty is founder of Witty Law Group, PLLC a full service immigration law firm with offices in New York City and Memphis. She is a graduate of Yeshiva University Stern College for Women and the Benjamin N. Cardozo School of Law. Ms. Witty serves as Vice-Chair of the Tennessee Bar Association’s Immigration Law Section and is an active member of the immigration bar.  Ms. Witty may be reached via email at elaine@wittylaw.com.

I would like to thank the authors for the articles in this issue, Elaine Witty, Ving Duong and myself. If you have an article or a suggestion, please e-mail me at bbuchanan@visalaw.com or call me at 615-327-9969.  Please note my new email and telephone number as I have joined the firm of Siskind Susser.

                                                            Bruce Buchanan