The VISASERVE Team Brings the Best and the Brightest to New Jersey.

Nachman & Associates, P.C. Immigration Lawyers:

New Jersey, just like the United States as a whole, is a global marketplace for ideas, goods and services and even talent. In fact, businesses and entrepreneurs across the Garden State benefit from the migration of highly skilled foreign national workers who are in demand in competing economies around the world. Highly skilled workers allow New Jersey companies to stay competitive by bringing the best and the brightest, add value to America’s economic infrastructure and assure the future stability of U.S. financial markets. Foreign countries, recognizing the value of these workers, often write immigration laws to attract them so additional incentives are needed to bring overseas talent to New Jersey and the United States. In this exclusive interview with COMMERCE, Nachman & Associates’ Managing Attorney David Nachman discusses the value of highly skilled foreign national labor to the economy, the competition for overseas talent and the challenges posed by immigration in the post-9/11 world. The H-1B season is about to begin, why not get up to speed on H-1B nonimmigrant visa issues?

LINK HERE FOR THE FULL STORY: http://www.cianj.org/pages/commerce_magazine/commerce-magazine.php?active_link=magazine

NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)

Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.

YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

ONE BAD APPLE . . .

U.S. says IT firm underpaid H-1B workers

Labor Department seeks $1.9M in back wages and penalty payment from N.J. company

By Patrick Thibodeau

February 24, 2010 06:56 AM ET

Computerworld – The U.S. Department of Labor is alleging that a Newark, N.J., software company, Peri Software Solutions Inc., underpaid its tech workers on H-1B visas and owes some $1.45 million in back wages to 163 people. The Labor Department is also seeking to hit Peri with a $439,000 civil penalty and a two-year debarment from the H-1B program. About 20 H-1B employers are on the department’s current list of debarred organizations. Peri officials are not commenting on the action, but Labor Department spokeswoman Leni Fortson said the company is seeking an administrative hearing to challenge the finding. “Everything is contingent upon the outcome of the administrative hearing,” she said. In a statement, U.S. Secretary of Labor Hilda L. Solis said that the company’s alleged actions “demonstrate the kind of abuses that our laws are designed to prevent. “Every worker deserves to be paid for his or her work, and the Labor Department is committed to holding those companies that violate our nation’s labor laws accountable.” Specifically, Labor Department investigators contend that Peri failed to pay prevailing wages to workers hired under the H-1B program. The company also “forced employees to sign employment contracts and then sued them when contracts were broken,” said the Labor Department. Peri was approved to hire nearly 190 H-1B workers in recent years — 120 in 2007, 64 in 2008 and three in 2009, according to U.S. Citizenship and Immigration Services records. More broadly, immigration authorities have been increasing enforcement of the H-1B program and demanding more evidence to support visa applications.

Article Appears in Computerworld.

Information Supplied By:

NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)
Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.

YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) today announced revised filing instructions and addresses for applicants filing an Application for Replacement/Initial Nonimmigrant Arrival-Departure Document (Form I-102). The new form is dated 1/13/10. This is part of an overall effort to transition the intake of benefit forms from Service Centers to USCIS Lockbox facilities. Centralizing form and fee intake to a Lockbox environment allows USCIS to provide customers with more efficient and effective initial processing of applications and fees.

Beginning February 22, 2010, applicants submitting Form I-102 by itself must mail their application to the USCIS Phoenix or Dallas Lockbox facility, based on where they are located. Detailed guidance can be found in the updated Form I-102 instructions, which can be accessed through the Form I-102 link to the right. Applicants submitting their Form I-102 with another form should submit both forms according to the filing instructions for the other form.

NATO and Partnership for Peace under SOFA Military Members seeking an initial Form I-94 should submit their application through their foreign commander or designee, to NATO/Headquarters, Supreme Allied Commander Transformation at NATO/HQ SACT, 7857 Blandy Road, Suite 100, ATTN: Legal Affairs, Norfolk, VA 23551-2490.

The Service Centers will forward mail to the USCIS Phoenix and Dallas Lockbox facilities for 30 days until March 24, 2010. After March 24, 2010, applications incorrectly filed at the Service Centers will be returned to the applicant, with a note to send the application to the correct location.

Applicants filing a Form I-102 at a USCIS Lockbox facility, may elect to receive an email and/or text message notifying them that their application has been accepted. They must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of their application.

For more information on USCIS programs, visit www.uscis.gov or call the USCIS National Customer Service Center at 1-800-375-5283.

READ ABOUT THE H-1B: Looking for an H-1B job this year? U.S. Employers will have new concerns as they prepare H-1B nonimmigrant visas this fiscal year.

Check out the link at:

http://archive.constantcontact.com/fs092/1011188341227/archive/1103030176451.html

VISIT OUR WEBSITE FOR A FREE SUBSCRIPTION TO THE BI-MONTHLY E-ZINE.

Notes from New Jersey AILA Chapter Meeting 1/26/2010

Speakers for US Customs and Border Protection:

Paula Heacock, Branch Chief, Enforcement Operations
Louis Mejia, Supervisor for Admissibility Issues
Kevin Donohue, Deputy Chief, Criminal Enforcement

Arriving Aliens with Convictions

Kevin Donohue spoke about deferred inspection and expedited removal of arriving aliens. He explained that CBP receives a list of individuals on a flight when it leaves an airport abroad. In the time that it takes for the flight to get to the US, using technology, CBP can get a record of conviction from the courthouse. Accordingly, arriving aliens with criminal convictions can be immediately placed in expedited removal proceedings. This is an improvement from the past when the alien would be placed into deferred inspection and told to return with a copy of the conviction. Under that system, many aliens were simply failing to show up at the deferred inspection. The expedited removal option that CBP is exercising with greater frequency has alleviated the burden placed on the deferred inspection system.

Mandatory Detention for Post-1998 Convictions

Officer Donohue pointed out that the law provides for mandatory detention with post-1998 convictions (Section 236(c)). Individuals with these convictions get detained in all cases. Thereafter, NTAs are sent to the General Counsel for legal sufficiency. The General Counsel for CBP is located at 1 Penn Plaza in Manhattan. Consideration will be given to humanitarian needs such as whether the individual is a sole provider for children, and whether he/she has health issues. This procedure is based on a program that was piloted in Atlanta and Miami.

A member asked about whether attorneys would be permitted at secondary interviews. Officer Donohue responded that such a right is not given under the law, but that reasonable requests will be considered on a case-by-case basis (this goes through Judith Altmann, Associate Chief Counsel). The general phone number for the airport is 973-565-8000 (press #1 for the duty supervisor). If the attorney is not permitted to attend, he or she will still be told about what is happening with the case and will be shown a copy of the NTA and be provided with a sworn statement. He pointed out that in cases where the attorney is retained later in the process, and the client does not have a copy of the sworn statement, it can be obtained through a FOIA request. A FOIA request can be made through the General Counsel at the following contact information:

Craig Stahl
FOIA Officer
CBP Office
1 Penn Plaza, 11th Floor
New York, NY
646-733-3200

An attorney can call and ask for the “attorney-of-the-day” and that person will log-in the information.

H-1B Admissions

Officer Donohue maintained that there has been fraud in the H-1B program, and that H-1Bs have been subjected to increased scrutiny at the port of entry. He indicated that officers may call the employer in order to make a determination about admissibility. He stated that while CBP will not permit the alien to call his/her attorney, CBP may call the attorney themselves.

Officer Donohue stated that CBP now has the technology to verify that the person who was interviewed at the embassy is the same person presenting at the port of entry. CBP is also able to access DOL information.

Officer Mejia indicated that he has “read the blogs” and knows that there is a perception that the H-1B denials are being experienced disproportionately by Indian Nationals. He categorically denied this claim. He also denied allegations that “rovers” are removing foreign national from the initial line and sending them directly to secondary inspection. He further noted that there are 4 flights arriving from India per day, and those flights have the most H-1Bs onboard.

Members expressed frustration with the fact that they are preparing their clients for interviews, and arming them with the necessary documentation, but the clients are still being denied visas and/or entry. This is particularly common where there is “seconding” occurring; these are complex, but legitimate, employment relationships that are even difficult for attorneys to understand. Officer Mejia indicated that members were doing exactly what they should be doing,( i.e., sending the foreign national to the port of entry well-armed with documentary evidence). Members also asked whether CBP was re-adjudicating cases based on a recent CIS memo. Officer Mejia indicated that the memo was not controlling on CBP, that they did not read it as calling for a re-adjudication, and that they were not re-adjudicating cases.

Members asked whether H-1Bs might be given a choice to withdraw their application for admission instead of being removed. Officer Mejia said that it would depend upon the circumstances; the Chief Counsel would have to be consulted. Another member suggested that, rather than removing an individual, CBP could issue an NTA. This procedure would permit an attorney to assist the foreign national. It was agreed that this would be the subject of further discussion between CBP and AILA NJ.

Closing of Varick Street Facility

Members inquired as to whether the closing of the Varick Street Facility would place extra pressure on NJ sites. The officers indicated that this would not occur because New York and New Jersey are entirely separate entities.

I-751 pending

Officer Donohue stated that when an alien presents an I-551 stamp, the alien will always be placed in secondary inspection. He also pointed out that this was true of anyone traveling with any document that did not have a biometrics identifier (e.g. I-551 stamp, I-797 extending the Conditional Residence for one year pending I-751 adjudication. In response to a member question, he indicated that there is no way for an officer to access any system that will tell him/her whether the alien has filed for divorce.

Expired Green Cards

Aliens who have been out of the U.S. for more than 6 months, or who have expired green cards, will be placed in secondary. Officer Donohue indicated that they have information about how long each LPR has spent outside the US.

Courtesy of Victoria Donoghue, Esq. and David H. Nachman, Esq.
NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450
Phone (201) 670-0006
Facsimile (201) 670-0009
WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).
FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.
YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services (”CIS”) has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September.

Why should employers care?

Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee. Any inconsistencies found can mean big trouble for employers.
Presently CIS has turned over the names of close to 40,000 companies across the US for investigative action via unannounced site visits.

For more information about these H-1B site visits, as well as helpful tips to prepare employers for these visits, please click on our Firm’s website at www.visaserve.com.

Article:

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services (”CIS”) has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.

Why should employers care?

Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site.

Any inconsistencies found can mean big trouble for employers. FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions.

However other sources say that employers are not required to give in to the investigators’ demands without a subpoena.

What to do?

Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit.

Attorneys may be present via telephone in these circumstances.

Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?”
To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits.

Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.

If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense.

This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.
The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non-payment of a prevailing wage to the H-1B beneficiary.

More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.

How can you prepare yourself and your company for a possible site visit?

Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive.

Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.

About Nachman & Associates, P.C.

The Business and Corporate Immigration Attorneys at our Firm have focused their practice, for over a decade and a half, on assisting companies that employ highly-skilled foreign nationals in visa applications. We serve our clients’ business objectives. A natural extension of that service is counsel that helps the client to avoid the disruption and expense of ICE audits, recent CIS actions and the consequences of being found to be out of compliance with any number of regulations related to immigration and employment.

Our Business Immigration Attorneys can organize and conduct a review of records, assist in establishing procedures to reduce exposure to liability, and participate in training of managers to comply with the numerous requirements imposed by the US Department of Homeland Security.

Contact us for more information: Website: http://www.visaserve.com
Phone: 201-670-0006

E-mail: info@visaserve.com

For more information about Business and Family-based immigration law check out our website at http://www.visaserve.com

The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with the U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.

EXECUTIVE SUMMARY

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current
H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.

To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

BACKGROUND

Pursuant to the Immigration and Nationality Act (INA) § 212(n)(1), USCIS may not approve an
H-1B petition without a supporting certified LCA. However, the INA does not prohibit acceptance of the petition filing without the certified LCA. The applicable regulation,

Citizenship and Immigration Services Ombudsman Recommendation from the CIS Ombudsman to the Director, USCIS
October 23, 2009, Page 2 of 2

8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added]. Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added]. However, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.

Stakeholders have detailed to the Ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009.

For example, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. Both DOL and USCIS indicated to the Ombudsman that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009 through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted). The Ombudsman understands that neither DOL nor USCIS can specify the exact number of incorrect LCA denials.

In 1992, the legacy Immigration and Naturalization Service (INS) responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA. This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

ANALYSIS

Despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. Any costs to USCIS such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals. USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.
Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted.

====================

1 Under 20 C.F.R. § 655.740(a)(1) (2009), DOL allows itself up to seven working days to certify LCAs.

2 A March 5, 1992, memo from INS Assistant Commissioner Lawrence Weinig stated “petitions for H-1B nonimmigrants do not have to be accompanied by an approved [L]abor [C]ondition [A]pplication. Instead, petitions for H-1B nonimmigrants must now be accompanied by a certification from the Secretary of Labor that the petitioner has filed a [L]abor [C]ondition [A]pplication with the Department of Labor …. The certification will be a copy of the original ETA 9035 filed by the petitioner with the Department of Labor with the Department of Labor’s stamp affixed to the form.” The Ombudsman understands that USCIS reaffirmed this approach as recently as 2001.

Almost on a daily basis we get calls from our clients about the process for allocating visas. I always tell a humerous anecdote about my discussions with Mr. Charles Oppenheim at the DOS who is the “knower of all things” about visa allocations.

In connection with the notification that all employment-based visas had been allocated for FY2009, Mr. Oppenheim, Chief, Immigrant Control and Reporting Division Visa Services Office, provided the following background explaining how the Department of State allocates visas through its Immigrant Visa Allocation Management System (IVAMS):

USCIS submits requests for visa authorizations if all required case processing has been completed (e.g., interview [if required], all clearances received, etc.). Therefore, once the authorization has been granted the case would be adjusted immediately, and could be forwarded to the “green card” processing facility. If the case is not within the established cut-off date the request goes into our “pending” demand file, which also contains the demand which has been received from our overseas posts. That demand is then used as the basis for the establishment of future cut-off dates.

When a USCIS authorization is made from the “pending” demand file an e-mail message is sent to a single address which each CIS Office has provided to the Immigrant Control and Reporting Division. The first page(s) of the message provides a summary listing of the A-numbers which have been authorized, and the following pages contain an individual authorization page for each A-number. That listing would be the same type as received if the case had been authorized when the USCIS Officer had originally submitted the request. Such authorizations are assumed to have been processed to conclusion during the month of authorization. If not, USCIS must notify VO that the case was not processed, the case record would then be deleted, and the case would be resubmitted to VO once the reasons for the deletion have been resolved.

If the Officer believes that a case should have been authorized, but has not received such notification, the program which is used to submit requests has a feature for checking on the status of individual A-numbers.

The authorizations from the “pending” demand file are sent to a central address to ensure that they are seen by someone should the officer who originally requested the case not be there (e.g., reassigned, on leave, etc.). If authorization is immediately available at the time of request the response would be send to the requesting officer, not the central address.

Americans across the country are familiar with Wal-Mart for their “roll-back” prices and friendly service. What most people don’t know is that, after their immigration scandals in 2001 and 2003, Wal-Mart has lead the country in enforcing employer compliance with requirements of the Immigration Reform and Control Act of 1986 (“IRCA”). Since paying a record-setting $11 million to the United States Department of Homeland Security, Immigration and Customs Enforcement Division (“ICE”), Wal-Mart has become the reluctant leader in employer compliance programs. As anyone trying to sign a contract with Wal-Mart will tell you, it’s no walk in the park to meet their strict demands, but it is the way of the future for employment verification procedures.

By way of history, in 2001, 100 illegal immigrant janitors were arrested at Wal-Mart stores in Pennsylvania, Ohio, Missouri and New York, and an additional 245 were arrested in October 2003 at 60 stores across 21 states. The allegation that Wal-Mart knew the janitors were illegal was denied by Wal-Mart’s top executives; nevertheless they admitted that they should have been keeping a more watchful eye over what their sub-contractors were doing. In a statement from Washington, federal officials announced that 12 janitorial contractors that worked for Wal-Mart had agreed to forfeit $4 million to the government and to plead guilty to criminal charges of employing illegal immigrants. The workers came from nearly 20 countries, including Mexico, Brazil, the Czech Republic, China, Poland and Russia.

As part of the $11 million settlement, Wal-Mart was permanently barred from hiring illegal immigrants and was ordered to establish a mechanism to make sure that its contractors “are taking reasonable steps to comply with immigration laws” within 18 months from the settlement date. Wal-Mart has since pledged to train all of its store managers to avoid “knowingly hiring” or “continuing to employ” illegal immigrant workers. Wal-Mart also agreed to continue cooperating with federal officials investigating its contractors. It’s no surprise that the regulations Wal-Mart has since built into their sub-contractor agreements are very rigid.

If you’re unfortunate enough to have seen the addendums to the Wal-Mart contracts, you are aware that there are stipulations which require all sub-contractors and sub-sub-contractors to follow the ICE “10 Best Practices for Employers”, which is a component of ICE’s IMAGE (“Ice Mutual Agreement between Government and Employers”) Program. Such practices include registering with the E-Verify Program, conducting training programs for all staff related to I-9 compliance, annual internal and third party I-9 audits, implementing an internal tip line, and full cooperation with government officials from the Department of Homeland Security. Not only are these required for the general contractor, but also for all sub-contractors and sub-sub-contractors. Needless to say, it has become burdensome for many small employers who wish to partner with a company such as Wal-Mart.

Nachman & Associates, P.C. is a Global Immigration Law Firm that has successfully helped companies become compliant with the regulations pushed down by Wal-Mart. In fact, other large employers such as Verizon have also been adopting the Wal-Mart compliance plan and requiring it for their own contractors, sub-contractors and sub-sub-contractors. In this era of compliance, it is important that employers can not only be in compliance with the law (as it will most likely only get tougher on violators), but also be able to handle the demands of both the government and large corporations who are pushing down these mandates. As Managing Attorney David H. Nachman says, “when we look into the crystal ball, we can see what’s coming down the pike and it means that employers need to be more vigilant.”

Mr. Nachman and his staff have been training employers about proper employment verification procedures for over a decade and most recently, pursuant to a federal training grant from the US Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), the Nachman & Associates team has been traveling across the tri-state area, and across the country via webinar, to help employers overcome the confusion in this “age of enforcement.” To contact Nachman & Associates for more information on compliance programs or to attend or schedule free training on employment verification procedures, anti-discrimination, E-Verify and IMAGE, please feel free to visit the website at www.visaserve.com. You can also feel free to call us at 201-670-0006 (x107).