“Critical Infrastructure and Key Resources”

The audits come in the form of a Notice of Inspection (NOI) that includes everything from I-9s to payroll records to info on independent contractors to copies of immigration filings. According to ICE, “the inspections will touch on employers of all sizes and in every state in the nation, with an emphasis on businesses related to critical infrastructure and key resources.” Targeted industries include those involving food, water, transportation, shipping, power and others.

Fraud Detection Unit

In addition, U.S. Citizenship and Immigration Services (USCIS) is increasing its audits of immigration abuses. Such audits are usually unannounced and focus on H-1B visas.

What Should Employers Do?

Now is not the time for shoddy I-9 or visa practices. Here’s what we suggest:

• Follow the law — ensure that all I-9s, visas and supporting documentation are properly filled out and maintained.
• Don’t wait for ICE or any other government agency — audit yourself and take corrective action on any incomplete or defective I-9s in line with ICE and EEOC guidelines.
• If you are a target of the audit — contact your favorite employment lawyer immediately. Cooperate with the investigation. Resist the temptation to tamper with or destroy any documents. Keep copies of everything you submit to ICE.

Want More?

For more, visit ICE’s official site here and here for our handy Immigration Reform and Control Act (IRCA) Cheat Sheet.

The Basics

In Chamber of Commerce of the United States v. Whiting, the Court ruled 5-3 that federal law does not preempt the Legal Arizona Workers Act because it is primarily a licensing statute. The law empowers the state to suspend or revoke the business license of employers who knowingly hire illegal immigrants. ”Congress expressly preserved the ability of the states to impose their own sanctions through licensing,” Chief Justice Roberts wrote in the Court’s decision.

The Court also found that the state’s mandated use of the  E-Verify electronic employment verification system did not conflict with any aspect of federal law.

The Reactions

Several rather disparate groups banded together to oppose the law, including the U.S. Chamber of Commerce, civil-rights organizations and even the White House — to no avail.

The Chamber warned that the Court’s decision will open the door for other states to enact similarly stringent laws. “The growing patchwork of state and local immigration laws is a serious obstacle to doing business across state lines,” said Robin Conrad, a lawyer representing the Chamber.

The Chamber is calling for Congress to ban state immigration laws as part of a broader overhaul of federal immigration law.

Reality Check

At this point, the law appears to be more bark than bite. Since its controversial passage in 2007, only three businesses have faced charges under the law. While raids have led to the arrest of hundreds of workers, the government is finding to difficult to meet the “knowingly” test under the law.

The Bottom Line

No matter what state you operate in, now is not the time to violate immigration laws. Governments at all levels are devoting unprecedented resources to seeking out potential violators. Carefully and completely fill out all I-9s and always always always follow the law.

The program is designed to “provide a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.” Previously, only employers had access to the system.

This means that individuals can now identify and correct errors on their own before applying for a position. That should help both candidates and employers avoid needless delays.

For DHS’ official announcement, click here.

What’s the cap?

The H-1B cap is 58,200, plus 6,800 H-1B1 visas set aside for citizens of Chile and Singapore that aren’t used during the prior fiscal year. For fiscal year 2011, 6,350 unused H-1B1s were added to the total, bringing it to 64,550.

Are there any exceptions?

20,000 H-1Bs for foreign nationals with U.S.-earned master’s or higher degrees are exempted from the cap each year. Various other H-1Bs are exempt, meaning that employers can file petitions at any time and aren’t limited to any particular employment start date. Excluded petitions include those to:

• extend a current H-1B worker’s period of stay
• change a current H-1B worker’s terms of employment
• allow a current H-1B worker to work concurrently under a new H-1B for another employer
• allow a current H-1B worker to change employers (unless the change is from a cap-exempt to a cap-subject employer)
• request new employment at a non-profit or governmental research organization or an institution of higher education or related/affiliated non-profit entity

When’s the next filing period?

USCIS’ fiscal year ends September 30. Since H-1B petitions can be filed six months before the start date, USCIS will begin accepting new H-1B petitions April 1.

(Special thanks to the fine folks at McGuire Woods for bringing this to my attention)