Experience Counts

EXPERIENCE COUNTS


Most of the employees I see coming to this country for professional jobs for my client employers want to become Lawful Permanent Resident, and, eventually, U. S. Citizens. It is their goal not only to work here, but also to “live the dream”. One of the first questions I get when filing for their L or H status is: “When can I get my ‘green card’?”

For non-immigrant workers, that path to a green card often begins with the PERM Process, or the Permanent Labor Certification Process. This is a process that must be initiated by an employer for an employee, and often employees will make that a condition of their employment during their hiring process. A benefit of this process is that it takes into account the derivatives listed on the non-immigrant petition when the employee came to work in the United States. Therefore, within one process, a non-immigrant worker, his/her spouse, and their minor children can all get their “green cards” at once. Another benefit of this process is that if the filing is done within a certain time period, non-immigrant workers in H-1B status can extend their stay past the normal expiration date for a non-immigrant worker in H-1B status. This is particularly important for those workers from one of the countries that have a waiting period before the actual lawful permanent resident application (Form I-485) can be filed.

One of the most important steps in this process is the proof that the beneficiary of this process is qualified for the job for which the recruitment was done and the Labor Certification was issued. An important part of that proof is the experience letter, which is the best and most useful documentation of the experience of the employee to be sponsored. An experience letter is a letter from your previous employer(s) showing not only that the applicant has experience, but also that the applicant has the relevant experience for the job being offered. Unfortunately for the applicant, that experience shouldn’t come from their current employer, even at another location.

As we work with the employers to obtain lawful permanent resident status for one of their employees, we will assist in the preparation of the experience letter to be sent to a previous employer. The reason for this is that experience letters are more than just a matter of detailing that an employee worked somewhere and the dates of that employment, but also what that employee did while there to show that the employee has the experience required for the position. Experience letters need to be on the letterhead of the previous employer, contain the name and contact information for the person signing the letter, the title and relationship to the employee of the person signing the letter, the start and end date of the employee’s employment, the title of the employee while at that company, whether the position was full or part-time, and a brief job description of the duties performed by the employee while at the company. The job description should contain duties and tasks which are relevant to the position that employee has, or will have, with the employer who is sponsoring that employee for their lawful permanent resident status. All of these elements should be in the experience letter as proper evidence of the employee’s experience and/or training. If any of these elements are missing or lacking, USCIS can, and most likely will, reject the letter and conclude that the petitioner has failed to prove that the employee has the required experience or training.

These experience letters must be from a person who has direct knowledge of the actual work the employee performed while working for the previous employer. This also needs to be a person who directed that work, not just a co-worker. The best person to provide that experience letter will be a manager that was directly over the employee or their supervisor, either of whom is still working for the previous employer. Other alternatives are managers or supervisors further up in leadership chain of the company who have managerial or supervisory responsibilities over the former employee’s direct manager and/or supervisor and are still with the previous employer. Finally, if there are no managers or supervisors that were there when the employee was at the previous employer, then the letter can be signed by someone in the human resources department to confirm the dates of hire and the job duties for the position the previous employee was in.

However, some of the employee’s previous employers may have been acquired by another company in a merger or buyout. This can create problems, but, with enough forewarning, steps can be taken to get a previous manager or supervisor, who is with the new company, sign an experience letter while providing USCIS enough information regarding why the information is being provided by the a new company. This will allow USCIS to determine that the information from this new company is actually the same as if it had come from the previous employer. This process, however, takes more time and can delay the filing of the I-140 if not started early in the PERM Process.

Another problem is when the previous employer is no longer in business. Sometimes, if an employee is aware of his employer’s financial difficulties and is concerned over that employer’s viability to continue to do business, it is advisable to have that employer write an experience letter, detailing all of the information above, very shortly after the employee obtains new employment so that the employee is not stuck without the very valuable experience letter if the company closes. When a company dissolves, the records are often lost or destroyed and there is no way to obtain an experience letter from that previous employer. However, all is not lost. USCIS has allowed for former managers or supervisors who are with new companies to write experience letters on behalf of a former employer since it is impossible to obtain an experience letter from that previous employer. The requirements of the experience letter do not change, but the wording has to address why the letter is not from the previous employer, but rather from a different company where the employee had no previous contact and detailing that the previous employer is no longer in business.

While experience letters are not needed until the I-140 petition filing stage, we get them as soon as possible in the PERM Process. Experience letters allow us to confirm exact dates of employment for the Labor Certification Application; to verify experience needed for the job being recruited for to make sure that the employee has the required experience for the job; and to determine if additional steps are going to have to be taken to get the experience letter that is needed due to some of the scenarios discussed herein. The experience letter relates to the entire PERM Process; and experience counts.

Jeannette S. Tysinger, Esq.

The Brave New World of Hiring in Tennessee

Since 1986, employers have been the primary enforcement tool of immigration. With the creation of the I-9 Form, it has been the responsibility of employers to find out if a person seeking employment is authorized to be and work in the United States.

The pressure on employers to enforce these immigration laws during the hiring process is getting ready to explode for employers in Tennessee. On June 7, 2011, Tennessee Governor Haslam signed into law new provisions of the 'Tennessee Lawful Employment Act' that will dramatically change the way employers hire new employees - and even independent contractors who provide labor and services for your company.

A new complex layer of state immigration enforcement obligations will supplement (and sometimes overlap) the federal regulations that employers already follow. The new legislation is built around the use of the federal 'E-Verify' system or maintenance of documentation proving legal residency for every employee similar to what is now required with the Form I-9.

Over the next several days, we will focus on 5 different components of the new legislation to help explain the scope of the new law. In summary, the 5 topics will include:

1. E-Verify and Legal Residency documentation; Employer will either have to register and use E-Verify or maintain specific documentation proving lawful residency - even if you do not have internet access;

2. Independent Contractors; new verification requirements now extend to persons who provide labor or services to your company - even if they are not your own employees;

3. Worksite Investigations; a new state office will be created to conduct random audits and inspections at your workplace;

4. Increased Penalties; higher fines and the possible permanent suspension of your license are now among the heightened penalties for violation of these new provisions;

5. Implementation Dates; Employer obligations to comply with this new legislation will be phased in depending upon the size of your workforce. Generally, the law becomes effective on January 1, 2012.

Welcome to the New World of Immigration Enforcement!

Is your workers' comp carrier also verifying your employees' eligibility to work?

Some insurance companies may be denying payment of benefits on the basis that unauthorized workers should not have been employed in the first place and thus are not eligible to be returned to work (or receive payments for the difference in wages for light duty work versus the employee's regular position). How does the company know that the worker is unauthorized? Well, some may be running the Social Security Numbers of your employees through either E-Verify or the Social Security Number Verification Service. [An aside:  neither program authorizes its use for that purpose, and the SSNVS handbook specifically prohibits third parties, i.e., someone other than the employer, from using it to take action that might be deemed adverse to the employee.]

This can create several issues for employers. First, an employer could have some liability to the employee if the employer knows that the SSN is being used for an improper purpose. Second, if the carrier makes the employer aware that the SSN was returned as mismatched or that the carrier has reason to believe the employee is not authorized to work, the employer must determine what steps it wishes to take to further verify employment eligibility. If it doesn't take any steps, it runs the risk of being considered "on notice" that a potentially unauthorized worker is in its employ.

Employers should consider periodically informing the carriers that any information provided is to be used for its authorized and intended purpose only. Taking it a step further, employers could also provide a statement to the carrier that the SSN is not to be used for any unauthorized purpose, including specifically any attempts to determine the work eligibility status of the employee.

In the FYI category--Tennessee's workers' compensation statutes provide that unauthorized workers are still eligible to receive certain benefits. The law places a limit on the amount of those benefits that can be awarded versus what would be available to an authorized employee. [See T.C.A. 50-6-241(e)(1)]

Chilly Forecast Ahead

It appears that ICE is on its way this season. Immigration & Customs Enforcement ('ICE') - the division of the U.S. Department of Homeland Security responsible for Employer compliance with immigration laws- announced several days ago that it was preparing to send out Five Hundred (500) new Notices of Inspection to companies within the next week.

Typically, a Notice of Inspection will require an employer to provide access to its I-9 Forms to make sure that the Forms are properly completed and that its employees are eligible to work in the U.S. (Fines for improperly completed I-9s may range from $110 - $1,100 per violation).

By comparison, ICE sent out only 503 Inspections for the entire year of 2008.

This increased vigilance by ICE is a continuing trend in immigration enforcement that has been escalating for the past 18 months. One effect of this increased pressure on Employers is that there has been a decline in illegal immigration - but it requires all employers, (whether or not you employ a foreign national), to make sure that all of your Form I-9s are in proper order before ICE makes its arrival at your door.

Happy Autumn!

Match Point!

As many HR professionals already know, there may be many reasons why an employer might receive a 'No-Match' letter from the Social Security Administration. When filing a new employee's W-2 form, sometimes a typographical error is made - or perhaps the employee recently changed her name and the SSN does not 'match' the person identified in the W-2 form. Maybe the database is erroneous.

As immigration has come under increased scrutiny, the federal government has taken the position that it might be evidence that an employer has knowingly hired an illegal alien. (It is, of course, against the law to knowingly hire an illegal alien.)

A mismatched social security number may be proof that a document has been forged or an SSN stolen. Accordingly, in 2007 and 2008, a federal rule was amended to, in effect, create a presumption that receipt of a 'No-Match' letter was notice to the employer that an employee was unauthorized to work in the U.S. - unless an employer took certain steps to prove that an employee was not an illegal alien (called a 'safe harbor').

Before the rule took effect, an injunction was granted by a Federal Court preventing the implementation of the 'No-Match' amended rule.

Then, last Wednesday the Obama adminstration rescinded the 'No-Match' amended rule. Effective November 6, 2009, an employer will not be obligated to follow the 'safe harbor' steps to avoid the presumption of having knowingly hired an illegal alien.

That being said, the receipt of a 'No-Match' letter from the Social Security Administration is still something that should be dealt with cautiously - because it still might mean that you have unwittingly hired an illegal alien.

Dizzy

As Laura reported in her recent blog on July 21, 2009, it appears that the ‘No-Match’ rules may never see the light of day.

The history of this rulemaking effort can be dizzying, but here’s an attempt to reveal the significance of this decision by the Obama administration to eliminate the confusion:

First, we all know that federal law prohibits the knowing employment of a foreign individual who is not authorized to work in the U.S. If, when hiring any new employee, the employer sends in a W-2 with a SSN that does not match the Social Security Administration’s records, the SSA will send back a letter notifying the employer that the records do not match. In August 2007, a proposed regulation from the Department of Homeland Security implied that simply receiving one of these ‘No-Match’ letters from the SSA could be constructive knowledge that the employer had hired an undocumented worker.

Now there may be many reasons why there is no ‘match’ in SSNs, including typographical errors and name changes, but under the regulations, an employer receiving a ‘No-Match’ letter had to immediately undertake a number of procedures to prove that it had not knowingly hired an undocumented worker (known as ‘safe-harbor’ procedures).
The same month that the final rule was issued, suit was filed in a California federal court to prevent enforcement of the rule. The Department of Homeland Security took the opportunity to revise the rule, but the revised rules did nothing to change the ‘safe harbor’ procedures. A preliminary injunction was granted by the court and the rule has yet to be enforced.

On August 19, 2009 the Department of Homeland Security issued a proposed a new rule rescinding the previous rule and reinstating the language of the rule as it existed before 2007. Comments on this proposed rule will be accepted until September 18, 2009. Expect the new rule to be published shortly thereafter.

So where does that leave us now? Stay tuned for more ideas… (See Laura’s July 21, 2009 blog for a hint).

"Govern yourself accordingly..."

This is a familiar phrase typically used by attorneys when putting a party on 'notice' that his or her legal rights are about to be affected by an upcoming event or legal proceeding.

This seems to be an appropriate phrase in light of a recent announcement by the U.S. Department of Homeland Security on its effort to stem the tide of illegal immigration. In a News Release by the DHS dated July 1, 2009, U.S. Immigration and Customs Enforcement - ("ICE" - the immigration enforcement arm of the U.S. Department of Homeland Security) - announced the launch of a new initiative to significantly increase the number of audits it will perform on employer’s records. An ICE audit will scrutinize whether an employer has properly documented its employees' authorization to work in the U.S.

[This documentation is reflected on your 'I-9 Form'. Generally, every employer is required to properly complete an I-9 Form for each employee. Failure to properly complete the form may result in significant fines and penalties. If you have not conducted a 'self-audit' of your I-9 Forms recently, we can help.]

Just how significant does ‘significant’ mean? In one day, (July 2nd), ICE issued Notices of Inspection to 652 businesses around the country. By comparison, only 503 Notices were issued for the entire 2008 fiscal year!

This is announced as a new “first step in ICE’s long-term strategy to address and deter illegal employment” by reducing the demand for undocumented workers. This shift in focus means that ICE is re-directing its resources to be more vigilant in its audits and investigation of U.S. employers.

ICE has sent a warning message to all employers that they will be watching more closely than ever for proper documentation of your employees. ICE has put you on notice. Govern yourselves accordingly….