By Jason E. Burritt, Michelle Gergerian, and Dawn M. Lurie

Seyfarth Synopsis: If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.


A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only “essential” government workers would report to work until Congress passes a spending bill.

U.S. Citizenship and Immigration Services (USCIS)

USCIS would be minimally impacted because it is largely a user-fee funded service. The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required — such as the H-1B that requires a Labor Condition Application (LCA) -­may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.

E-Verify, USCIS’ free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS issued guidance suspending the “three day rule” for any case affected by the shutdown.  Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.

Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.

Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.

Department of Labor

Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. OFLC would neither accept nor process any applications or related materials, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications). OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.

Department of State (DOS)

Visa issuance should continue, at least temporarily. Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.

Department of Justice (DOJ)

DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.

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By Dawn M. Lurie and Leon Rodriguez

Top view of smart phone, coffee, pen and notepadSeyfarth Synopsis: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement.   This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.  Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.

In light of the Trump Administration’s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.  To be clear, the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement  (“ICE”) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.

In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE’s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit as well as it’s E-Verify Monitoring and Compliance branch. Additionally, the Department of Justice’s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.

Be Prepared

Employers must develop and implement strong compliance policies, renew their current policies, assess immigration exposure, consider outside counsel audits of Form I-9, E-Verify and H-1B public access files, if applicable and most relevant to today’s climate, plan in advance how to respond when immigration agents visit the company. All personnel, from the those in the reception area to HR managers must be prepared and know what to say and what not to say when DHS agents visit. Training alone will not prepare the business, but rather a targeted step-by-step process, known to all relevant managers and employees, that can be easily followed in the event of a visit will likely yield enhanced results

It is important to understand the possible purposes of a DHS visit and how to respond when a DHS Special Agent knocks on your door. The following is a general guide for addressing a visit from an immigration Special Agent. We recommend developing specific process documents to describe the various types of encounters with government agents that a worksite may face. It is also important to consider delineating roles and responsibilities, as well as a global response to investigations and audits.

Keep in mind there will be three main reasons by ICE may visit a worksite:

  1. To look for, or take into custody, a particular individual;
  2. To issue a Notice of Inspection of a company’s Form I-9 document; ICE continues to focus its worksite inspection efforts on employers conducting business in critical infrastructure and national security interest industries/sectors.  For example commercial facilities, communications, critical manufacturing, dams, emergency services, government facilities, information technology, nuclear reactors materials and waste and transportation systems remain favorites. Other focus is on employers for whom ICE has received a credible tip or lead. A full overview of the Form I-9 Inspection is discussed in a separate Alert; or
  3. To conduct a Worksite Enforcement Action: During these worksite “raids”, large numbers of Special Agents may descend upon a location, without notice. ICE will obtain indictments, arrest or search warrants, or a commitment from a U.S. Attorney’s Office to prosecute a targeted employer before arresting employees for civil immigration violations at a worksite. The last such “Action” occurred in Bellingham, Washington in February of 2009 however, it is unknown whether such activity will resume.

Designate and Prepare Representative Responders

When the government knocks it will serve a company well to have prepared those on site to greet the government visitor. Providing that “greeter” with a specific list of exactly who needs to be contacted, both immediately at the affected location and/or elsewhere in the company, will minimize confusion. This guidance will be welcomed by your employees. Defining roles, and even providing scripts to greeters and representative responders, may further minimize unnecessary disruption and distress. Responder roles include, but are not limited to, the following individuals:

  • Receptionist /Front Desk Greeter
  • Manager(s)
  • Human Resources Representative
  • General Counsel, if applicable
  • Outside Immigration Counsel

Provide Instructions to the Field

Employees likely to be approached by government Special Agents, including reception staff and relevant security personnel, should be briefed on the company’s protocol for handling a visit targeting an individual, the service of a Notice of Inspection, or another enforcement action. It is critical that companies first discuss the specifics of such a protocol with their immigration counsel in order to address individual considerations and customize a particular response.  Advice will be based on a variety of factors including a risk assessment and even a review of your physical plant.

Regardless of the type of investigation, all responders must be as cooperative as possible with the government Special Agents. You generally want to provide the government with only that which is necessary to meet their request as outlined in detail below. The initial contact should ascertain the name of the agency visiting and whether or not they have documents to present, as well as the purpose of their visit. You also want to ensure the visit itself does not exceed the scope of the warrant, subpoena, or other written request.

The Receptionist/Greeter should be instructed that upon the arrival of government Special Agents, s/he should immediately contact the designated Manager and any other Responders. The receptionist’s role could end there or could continue to the next steps depending upon the direction of the company.

  1. The Greeter should not allow the Special Agents out of the waiting area, but rather make them comfortable while waiting for the Manager or appropriate lead person.
  2. Limited questions and answers noting she/he is not authorized to give consent to enter the premises or respond to questions. Special Agents are trained professionals and being overly talkative is not recommended. In some cases the Special Agents may seem threatening, aggressive, or difficult, however there is no need to panic. In other cases, the pair of agents could begin a game of “good cop/bad cop” right there in the lobby. The Greeter should keep calm and continue to try to reach the manager.
  3. If the Special Agent is still aggressive, inform him/her that the company has protocols in place to make sure government inquiries are addressed and request that you be allowed to follow them. On the other hand if the agent is very chatty, keep in mind he/she is really not a friend and there is no need to sit down and engage in conversation. Keep the answers short and direct until a Manager arrives.
  4. A direct call to legal counsel should be considered as part of this process for the Greeter.
  5. AGAIN, the Greeter should not provide any consent to allow the Special Agents access to anywhere outside of the public entry way space.

The Manager (or his designee) should ensure legal counsel, headquarters and outside immigration counsel, as designated in your company’s individual protocol has been contacted prior to walking out to meet the Special Agents. Mobile phone numbers and specific contact information should be readily accessible. The manager should then greet and escort the Special Agents to a predetermined room/location, which should be as private as possible. The location should be close to an exit of the building where their departure, possibly with an employee, will not cause disruption. Specifically the Manager should then take the following steps:

  1. Confirm and/or identify the government agency that dispatched the agent/visitor. Ask the Special Agents for identification and note each person’s name, title, agency, and obtain contact information as well a business card.
  2. Ask the Special Agents about the purpose of the visit and request subpoena and/or warrant, under which they are acting.  The agents MUST present a warrant in order to gain access to the items or individuals they are seeking.
  3. Inquire on the nature of the inquiry and ascertain to the extent possible if an individual employee is being or if the agents are investigating the company.
  4. Communicate to the government agents that the company will cooperate with the request but that they have/will contact legal counsel to assist them in complying.
  5. Determine if the agent is presenting official documents by reading them or scanning to in-house counsel or outside Counsel. If time is short the Manager can take a photo on their phone and text message. If the investigator presents any official documents, they must be read carefully to determine if the document is a Judicial Subpoena (which must be honored) or an Administrative Subpoena (which may be challenged). Generally, Form I-9 audit requests are administrative and elements of the request may be subject to challenge.
  6. An arrest warrant will not authorize its holders to simply wander otherwise private premises. The warrant must describe with specificity the location to be entered and those specifics will limit where an agent can go.   Even if the warrant authorizes the arrest of an individual, it must explicitly authorize entry into specific private premises including individual offices, the production floor etc. for such entry to occur.
  7. Employees should be reminded not to waive any rights, and provide consent to any activity beyond that described in the warrant.
  8. Remember ICE agents must have a valid search warrant or the company’s consent to enter non-public areas of the workplace even if the company itself is under investigation.
  9. Make contact with the lawyers. Before answering any of the agent’s questions, the Manager should first speak with inside counsel or experienced immigration counsel. Counsel may want to come to the location, if possible, or speak by telephone with the investigator.
  10. Remember you have three days to turn over your Form I-9s and related documents, even when presented with a subpoena and related Notice of Inspection. Do not EVER waive this time period. Immigration counsel will assist directly and organize the submission to ICE or the requesting agency (sharing of Form I-9 data is limited for privacy purposes, but allowed to be provided to agencies outside of DHS and DOL where there is a criminal investigation involved). Documents will be turned over in an orderly fashion with ICE acknowledging receipt and providing a “Chain of Custody.”

In summary:

  • Do not turn over any documents unless a search warrant mandates such action. Again, this will not be the case in the context of an Form I-9 audit.
  • Do not provide any information other than what is exactly asked.
  • Make copies, if possible of anything being taken.
  • Ensure legal counsel is available in real time to consult on any immediate requests.

Companies in specific industries may face additional challenges when responding to government visits. Outside immigration counsel should be consulted to establish customized protocols and practical procedures for your employees, supervisors and managers, and possibly your customers, to follow when faced with visits from ICE, USCIS DOJ or the DOL.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Business Immigration Group.


By Jason E. Burritt

Seyfarth Synopsis: In light of recent events related to the most recent Executive Order banning travel to the United States for nationals from certain countries, please continue reading for more detailed information regarding this Executive Order and what employers may wish to consider in response. 

On Friday, January 27, President Trump signed an Executive Order that suspended travel into the United States for nationals from certain designated countries, specifically Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This suspension in travel is already in place.  If nationals from these countries, including those who are lawful permanent residents (i.e. green card holders), are currently present in the United States, they can remain here lawfully but should not travel outside the U.S. at this time.

This suspension will remain in place for at least 90 days — until April 27, 2017 — during which time the Department of Homeland Security (“DHS”) must assess and identify any countries that do not currently provide adequate information to enable proper screening of nationals from those countries; the affected countries would thereafter have 60 days within which to begin providing the necessary information. Presumably, if a country failed to adequately provide the requested information, the travel ban would then become indefinite.

The Executive Order does not clearly define the circumstances under which an individual is considered to be “from a designated” country. However, the language and subsequent actions by Customs and Border Protection (“CBP”) at the border suggests that the travel ban will apply to nationals from the seven countries, and may include lawful permanent residents.

Following actions by CBP, several lawsuits have been filed and subsequent rulings have been made, starting with an emergency ruling issued in Brooklyn, New York on January 28, 2017. As of this writing, at least four temporary restraining orders (“TROs”) are in place, each with varying specificity and reach.  We have highlighted the key points of the three most prominent orders below:

  • Massachusetts – On Sunday, January 29, 2017, U.S. District Judge Allison Burroughs and Magistrate Judge Judith G. Dein of the U.S. District Court of Massachusetts issued a seven-day stay on removal, detainment and additional screening. Perhaps the most far reaching order to date, the TRO is in effect for seven days and applies to lawful permanent residents, citizens, visa holders, approved refugees, and other individuals from the identified countries subject to the Executive Order. The ruling also (1) limits secondary inspection screening; (2) bars DHS from detaining or removing foreign nationals who would otherwise be legally authorized to enter the U.S. in the absence of the Executive Order with approved refugees applications, immigrant and nonimmigrant visas; (3) requires CBP to notify airlines that individuals on flights to Logan Airport will not be detained or returned based solely on the basis of the Executive Order.
  • New York- On Saturday, January 28, 2017, Judge Ann M. Donnelly of the U.S. District Court in Brooklyn enjoined and restrained DHS from “removing individuals with refugee applications . . . , holders of valid immigrant and non-immigrant visas, and other individuals . . . legally authorized to enter the United States.” The Court orders the U.S. Marshal for the Eastern District of New York to enforce the ruling. While the ruling blocks removal of the individuals, it does not order the release of any segment of the affected population.
  • Virginia – On Saturday, January 28, 2017, U.S. District Court Judge Leinie Brinkeman for the Eastern District of Virginia issued an order blocking removal of lawful permanent residents detained at Dulles International Airport. The order remains in effect for seven days and does not require release of lawful permanent residents, but does require that all lawful permanent residents detained at Dulles International Airport be given access to lawyers.

The President’s Executive Order is not the first time in the post-9/11 era that the U.S. has focused on citizens of particular nations to try and identify and eliminate potential threats to homeland security. In 2002, the George W. Bush administration created a program of special vetting of foreign citizens, known as the National Security Entry-Exit Registration System (“NSEERS”), to record and monitor the arrival, stay, and departure of certain foreign citizens from the very same seven countries named in the most recent Executive Order.

NSEERS, however, was far broader. It also applied to categories of foreign citizens from several other countries, namely, Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Tunisia, and United Arab Emirates. DHS suspended NSEERS in 2011, however, and President Obama formally terminated it on December 22, 2016.

Given this history, as a precautionary measure, U.S. lawful permanent residents and foreign nationals from countries not included in President Trump’s Executive Order but included in the NSEERS list of countries should consider postponing all non-emergency travel from, and accelerating their return travel to the United States.  In addition, employers of U.S. lawful permanent residents and foreign nationals who are from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Tunisia, and United Arab Emirates, should consider (a) canceling all trips abroad for these employees, and (b) instructing them to return as soon as possible to the United States.

In light of these developments, and in response to the rapidly changing immigration climate, employers should strongly consider the following actions:

  • Advise any foreign national employees from the seven designated countries listed above — this includes U.S. lawful permanent residents who are nationals from these countries — to avoid travel outside of the United States. If a U.S. lawful permanent resident from these countries is currently outside of the U.S., s/he should seek to return as soon as possible.
  • Advise any affected individuals from the seven designated countries, other than lawful permanent residents, who are currently outside of the United States that they should not return to the U.S. at this time. Seyfarth Shaw attorneys have first-hand knowledge of individuals being detained upon arrival to the United States.
  • Consider advising U.S. lawful permanent residents and foreign national employees from countries not included in the Executive Order but included in NSEERS to postpone non-emergency international travel.
  • Identify all employees currently holding any nonimmigrant visa status (this includes L-2s, H-4s, and TNs) and consider sponsoring these employees for H-1B status under the April 1 H-1B lottery.
  • Advise caution to all foreign national employees who may be traveling internationally to renew a visa at a United States consular post. Individuals who are employed, or who hold academic degrees, in a field that appears on the government’s Technology Alert List, should delay their visa appointments at U.S. consular posts in order to avoid potentially lengthy administrative processing or related screening delays.  Click here for more information on the Department of State’s Technology Alert List.
  • For any affected employees who have current green card priority dates and are able to file Adjustment of Status applications, file the applications as soon as possible.

Please bear in mind, however, that each employer’s and affected employee’s situation may present special circumstances that may warrant consideration of an alternative approach in lieu of the recommended strategy above.

We will continue to monitor the situation and will reach out with additional details as they become available.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.


By Brian A. Wadsworth

Employers are well aware that the protections provided by 42 U.S.C. § 1981 extend to both United States citizens and permanent residents, colloquially referred to as “green card holders.”

Some employers, however, may be unaware that lawfully present aliens who are not green card holders may also be protected by § 1981. In Ruben Juarez v. the Northwestern Mutual Life Ins. Co., Inc., Civ. No. 14-cv-5107, Judge Katherine Forrest of the Southern District of New York recently held that a lawfully resident alien had a cognizable cause of action against a potential employer for its “US citizen and green card holder only” employment policy.

Plaintiff Ruben Juarez (“Juarez”), an alien legally authorized to work in the US, applied for a position with Defendant Northwestern Mutual Life Ins. Co. Inc. (“Northwestern Mutual”). During his interview, Juarez explained his status and noted that “he could legally work for Northwestern Mutual regardless of whether he was a citizen or had a visa.” Northwestern Mutual disagreed and informed Juarez after the interview that in order to be hired by Northwestern Mutual, a candidate had “to be a US citizen or have a green card.” Six months after his interview, Juarez filed a putative class action against Northwestern Mutual, alleging alienage discrimination in violation of § 1981.

Northwestern Mutual promptly filed a motion to dismiss for failure to state a claim. On November 14, 2014, Judge Forrest denied this motion. Northwestern Mutual argued that Juarez was denied employment because he did not possess a green card, not due to his citizenship. Thus, it could not have discriminated against him on the basis of alienage.

In rejecting this argument, Judge Forrest reasoned that the protection afforded by § 1981 extends to “all lawfully present aliens.” This conclusion was based on the statutory language. Namely, “[a]ll persons within the jurisdiction of the United States shall have the same right . . . .” Judge Forest also relied on “a long line of precedent interpreting the Equal Protection Clause.” This bevy of case law, as noted by Judge Forrest disallows discrimination on the basis of alienage.

Displeased with the finding, Northwestern Mutual sought to certify the Judge Forrest’s opinion for interlocutory appeal. On December 30, 2014, the Court granted Northwestern Mutual’s motion to certify the Court’s Opinion & Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) because the opinion “addresses a pure legal question of first impression and significant practical importance: whether a policy that expressly denies employment to lawfully present aliens without green cards runs afoul of § 1981.” On March 17, 2015, the Second Circuit determined that it would review the District Court’s interlocutory order.

The implications of Juarez, depending on its outcome, could be significant for employers. It is likely that many employers are not cognizant that a “US citizen or green card holder only” policy may be in violation of § 1981. If the Second Circuit uphold this decision, it could require employers to reanalyze their employment policies to ensure they are complying with the Juarez holding.

This decision may also place a burden on employers to remain current on immigration and work permit laws. To avoid improper hiring practices, an employer will need a thorough understanding of whether lawfully present aliens are indeed legally authorized to work in the US. It may also require employers to bolster their applicant review process.

Should the Second Circuit uphold Juarez, employers should review their employment application and hiring processes and policies. Employers should also be cognizant that providing employment exclusively to US citizens and green card holders may generate liability under § 1982.

If you have questions regarding this topic, please contact the author, or your Seyfarth attorney.


By: Pavan Dhillon

Canada, much like the United States, has adopted increasingly protectionist immigration policies that are intended to strengthen the Canadian economy by restricting both temporary resident and permanent residency applications. Employment and Social Development Canada (ESDC), Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) administer and adjudicate Canadian Immigration related applications and are responsible for undertaking enforcement action against non-compliant employers and individuals.

A major difference between United States and Canada’s Immigration reform efforts, is that Canadian agencies can adopt fundamental policy changes through Ministerial instructions.  Pursuant to Section 87.3 of the Immigration and Refugee Protection Act (IRPA), the Minister  can introduce sweeping reforms of immigration laws that affects “processing of applications” including establishing categories of applications and conditions that must be met. The Harper Government has relied heavily on this provision to fundamentally alter the Canadian immigration landscape. In particular, the liberal use of the ministerial instructions allow the government to use enormous discretion and can to a large degree bypass the checks and balances built into the democratic system. For instance, the ministerial instructions were used to institute a moratorium on parental sponsorships for a two year period.  The options to permanent residency in Canada is increasingly narrowing with the introduction of various ministerial instructions but the ministerial instructions have also been used liberally to implement a strict employer compliance regime.

In addition to outlining immigration related general offences and penalties, Canada has recently implemented significant compliance directives including increased inspections and abuse detection measures, increased information sharing between government agencies and increased enforcement measures including site visits and compliance reviews.

With heightened compliance initiatives, Citizenship and Immigration Canada has also provided unequivocal guidance affecting Human Resources (“HR”) professionals who may be at a risk of engaging in the unauthorized practice of providing immigration advice to their employees. The directive is also aimed to provide similar guidance to other professionals who may facilitate an immigration application such as educational agents, adoption agencies and live-in caregivers’ agents.

Specifically, pursuant to Section 91 of IRPA, only the following persons are permitted to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with Canadian immigration applications or proceedings under IRPA:

  • A lawyer who is a member in good standing of a law society of a province or
  • A notary who is a member in good standing of the Chambre des notaires du Québec;
  • Any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or
  • A member in good standing of a body designated the IRPA regulations (ie. Immigration Consultants)

Any other individuals providing representation or advice may face harsh penalties for unauthorized representation, which is considered to be an immigration offence.  Pursuant to Section 91(9) of IRPA, unauthorized representatives may be liable, on conviction on indictment, to a fine to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both; or on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

Granted these harsh penalties will generally be reserved for those who engage in fraudulent activity, but there are nevertheless repercussions for HR professionals. CIC provided the following directive limiting the role of HR professionals in order to provide additional guidance for those stakeholders legitimately involved in an immigration application.  Specifically, HR professionals cannot:

  • Explain and/or advise an employee about his or her immigration options. This would include permanent residency and temporary resident applications (such as work permits and temporary resident visas) but, strictly interpreted, may also extend to business visitor applications
  • Guide an employee on how to select the best immigration stream
  • Complete and/or submit immigration forms on an employee’s behalf
  • Communicate with CIC and the CBSA on the employee’s behalf (except to provide ancillary translation services regarding an employee’s written or spoken submissions)
  • Represent an employee in an immigration application or proceeding
  • Advertise that the HR representative can provide immigration advice for consideration
  • Complete applications forms, such as work permits and visa applications, on behalf of workers recruited.

HR professionals can however perform the following limited tasks:

  • Direct an employee to the CIC website to find information on immigration programs, application forms, or authorized immigration representatives
  • Provide ancillary services such as  translation, travel arrangements and couriers
  • Advise international students on course selection or registration
  • Conduct job interviews (as well as conduct recruitment efforts)
  • Complete Labour Market Impact Assessment (LMIA) application forms on behalf of the employer

HR Professionals engaging in these prohibited activities are exposing not only their companies and employees but also themselves to liability and risk. licensed Canadian immigration attorneys or certified immigration consultants should be consulted prior to advising any employee about his or her immigration options.

If you have further questions regarding immigration, generally or Canadian laws, specifically, please contact the author, a member of Seyfarth’s Immigration Department or your Seyfarth attorney.

By Angelo A. Paparelli

Samuel Herbert, Her Majesty’s Home Secretary from 1931-32 (the British equivalent of the U.S. Secretary of Homeland Security), could well have been speaking about two recent immigration-related events when he quipped that “bureaucracy” is “a difficulty for every solution.”

One is an October 30 Settlement Agreement between Indian It consulting giant, Infosys, and the U.S. Attorney for the Eastern District of Texas.The other is an October 18 decision by U.S. federal district court judge, William J. Martini, involving the U.S. Department of Labor (DOL) and CAMO Technologies, a much smaller Indian IT consulting firm.  

Both reflect a victory, of sorts, for Indian IT firms over U.S. immigration bureaucrats and enforcement agents, and both shed light on the little-discussed crossroads where ambiguous immigration rules bisect the relations between corporate customers and their technology consultants. Continue Reading Four Post-Infosys Strategies for Corporate Customers and Consultants to Minimize Immigration Risks

By Angelo Paparelli

As noted in our last post, American businesses which offer U.S. secondments to their executives, managers and specialists from affiliated entities abroad must take proactive measures to address several ominous developments adversely affecting the tried-and-true L-1 work visa category for Intracompany Transferees.

Even if a U.S. company can’t tell an L-1 from an elbow, concern over this visa category is important if the business engages the services of third-party vendors and service providers whose personnel to be stationed at the customer’s worksite must rely — as is often the case — for employment authorization under the L-1 visa category.

As will be seen, L-1 troubles are brewing everywhere.

I.          U.S. Citizenship and Immigration Services (USCIS).  This component of the Department of Homeland Security (DHS) recently issued a policy memorandum (“Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO)”), reaffirming that decisions which are not designated as precedent should only “apply existing law and policy to a unique factual record in an individual case,” and “[do] not create or modify agency guidance or practice.” Despite this policy, USCIS adjudicators continue to follow the reasoning of the 2008 GST case, which clearly articulated new, highly restrictive L-1B specialized-knowledge criteria and rejected an established and workable policy memorandum on visa eligibility for persons seeking L-1B classification. 

On the L-1A front, a visa category for foreign executives and managers, USCIS’s responses have been unpredictable and mostly problematic.  Some cases are approved without objection, typically if the company is large and hierarchical in its operational structure, while other cases (especially for managers in companies with flat organizational management) trigger the issuance of a burdensome and time-consuming requests for additional evidence which, after submission of more documentation, are far too often denied.  When cases are rejected, the denial typically states that “[a]n employee who primarily performs the tasks necessary to produce a product or to provide services is not considered to be employed in a managerial or executive capacity.” 

The agency’s rationale might be legitimate if it were based on regulations in force before enactment of the Immigration Act of 1990 (the 1990 Act).  Today, however, regulations issued in 1991 implementing the 1990 Act’s liberalized definition of L-1A “manager” by creating the function manager classification and embodying Congress’s intent to modernize the L-1A category to make it more flexible.  See Brazil Quality Stones v. Chertoff, accessible here.

Of particular significance, the pre-1990 Act regulations contained (but the 1991 regulations omitted) an express bar to L-1A visa eligibility for “an employee who primarily performs the tasks necessary to produce the product and/or to provide the service(s) of the organization.”  The only reasonable inference to be drawn from this intentional excision from the rule is that to qualify for an L-1A, persons who primarily manage functions need not be engaged in the management of people.  Rather, exercising responsibility for a critical function of the organization (which may involve “primarily perform[ing] the tasks necessary to produce the product and/or . . . provid[ing] the service(s) of the organization”) is nevertheless deserving of L-1A classification. 

Employer Takeaway: Employers seeking to establish L-1A function manager visa eligibility should therefore make sure their immigration counsel outline the relevant rulemaking history when submitting a function-manager petition.

II.        U.S. Department of State and Consular Officers.  In Fiscal Year 2012, U.S. consular officers issued 134,212 L-1 visas.  With the exception of American posts in India, consular officers have generally been quite willing to issue both individual L-1 visas, based on petitions pre-approved by USCIS, and blanket L-1A and L-1B visas for companies designated by USCIS as high-volume filers. American employers have reported, however,  that L-1 visa refusals by American consular posts in India have increased dramatically since 2006.  The concern over L-1 visa refusals in India, particularly under the L-1B category, is troubling because Indian citizens account for a material percentage of L-1 visas issued worldwide, as well as for such visas refused.   

As I learned from a visit last month with consular officials at the American Consulate in Chennai, the high L-1 refusal rate is attributable to several factors:

  • The time available for each L-1visa interview, ranging from 1.5 minutes to 6 or 7 minutes, and averaging 3 minutes,
  • The consular officers’ focus on the oral response of the visa applicants to questions posed about the individual’s prior employment history and proposed U.S. duties, as well as inquiries into how the prospective employer obtained the contract to provide services in the U.S. (a consideration of commodity work based on low price for which specialized skills are not needed versus unique, value-added services),
  • The absence of time for consular officers to read much, if any, of the documentation submitted by the petitioning employer to demonstrate L-1 visa eligibility,
  • Strict adherence to current State Department L-1 visa guidance, which relies upon the non-precedent GST case, and
  • The consular officer’s application of the “clearly approvable” standard for blanket L-1 visa issuance, which is seen as far higher than the “preponderance of the evidence” (more likely than not) standard of proof applied by USCIS.


Employer Takeaway: Employers and customers of service providers who rely on access to L-1 workers should focus much more effort on preparing the visa applicant for the consular interview and perhaps less on supporting documentation which the consular officers may not have time to read, and which — according to one vice-consul with whom I spoke — include “cover letters [that] read like advertising materials.”

III.       The DHS Office of Inspector General (OIG).  At the request of Senator Chuck Grassley, the OIG last month issued a report, “Implementation of L-1 Visa Regulations,” which supplements a 2006 study, “Review of Vulnerabilities and Potential Abuses of the L-1 Visa Program.”  The OIG’s 2013 report is based on information gleaned from statements of government officials and fails to interview external stakeholders in the business community.  The OIG found high potential for fraud and abuse in the L-1 visa program, but failed to investigate or assess the economic benefits to American employers and U.S. workers under the L-1 program.  Without offering a legal analysis, the OIG report sided with the AAO in its GST non-precedent decision, and offered numerous process recommendations to make L-1 visas harder to obtain and keep, including site visits both before and after L-1 petitions are approved — a step USCIS has agreed to initiate.

Employer Takeaway: As noted, employers should consider placing less reliance on documentation and much more on preparing individuals applying for L-1 visas at American consular posts in India for foreseeable questions officers are likely pose during the interview.  Employers and customers of service providers who rely on access to L-1 workers should prepare for unannounced USCIS visits to company worksites by the agency’s Directorate of Fraud Detection and National Security (FDNS) to verify the representations made on visa petitions and applications.

IV.       Congressional Proposals.  Congress is also assailing the L-1 visa.  S. 744, the massive comprehensive immigration reform bill that passed the Senate over the summer, includes (among other restrictions) an entire section on L-1 visa changes that are patently more restrictive, “Title IV, Subtitle C—L Visa Fraud And Abuse Protections,” as described in the Senate Judiciary Committee’s section-by-section analysis (starting at page 141).  These proposed restrictions include:

Section 4301. Prohibition on Outplacement of L Nonimmigrants. 

Section 4302. L Employer petition requirements for employment at new offices

Section 4304. Limitation on Employment of L Nonimmigrants.

Section 4305. Filing Fee for L Nonimmigrants.

Section 4306. Investigation and Disposition of Complaints against L Nonimmigrant Employers.

Section 4307. Penalties.

Employer Takeaway:  Directly and through business associations and trade groups, Employers should reach out to their Congressional representatives to let them know that the changes proposed and the administrative agency interpretations now in force are hurting their business operations and must be reversed.

V.  Judicial Interpretations. The federal courts are also taking aim at the L-1 visa category, usually deferring to immigration-agency determinations and providing little relief in response to erroneous agency action.  A recent example is Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, which follows the GST case reasoning and defers to the presumed expertise of USCIS in immigration adjudication, even though that AAO decision, as shown above, is non-binding and contradicts prior established USCIS policy in the Puleo memorandum.

The district court in Fogo De Chao does not consider the Supreme Court’s immigration-law ruling in Judulang v. Holder, 132 S.Ct. 476 (2011), in which the Justices found arbitrary and capricious behavior by a tribunal (the Board of Immigration Appeals or “BIA”) in the government’s effort to remove a lawful permanent resident. The Court declined to follow the tribunal’s latest interpretation in part because the tribunal “has repeatedly vacillated in its method for applying” the law’s requirements. 132 S.Ct. at 488.  Speaking in terms that could apply equally to the USCIS’s current expression of its L-1B criteria, the Judulang decision found that the BIA had “repeatedly vacillated in its method for applying” a section of the Immigration and Nationality Act (INA), and therefore declined to defer to the BIA’s presumed expertise.

Employer Takeaway: Employers who seek federal court review of erroneous L-1 decisions by USCIS should make sure their immigration counsel demonstrate to the court how USCIS has  “repeatedly vacillated in its method for applying” the eligibility criteria under the  INA’s L-1 definitions of executives, managers and persons with specialized knowledge, and urge as a result that court pay no deference to the agency’s changing L-1 determinations.

* * *

Regrettably, the L-1 visa category is not the only employment-based benefit under attack by the three branches of the federal government.  Similarly arbitrary and capricious decisions are made every business day across the pantheon of nonimmigrant work visas and employment-based green cards.  Given these daunting challenges, employers and their internal counsel should reconsider the way they deal with their immigration-related business objectives.  Thus, if ever there is a time for improving the employer’s immigration portfolio management, it’s now.


By Angelo Paparelli

U.S. employers have likely grown accustomed to the longstanding controversy over the highly coveted  H-1B visa for workers in a “Specialty Occupation” — the nonimmigrant category whose annual quota for professional workers often is exhausted within a week of each year’s new allotment.  The H-1B controversy arose because of apocryphal or largely unproven allegations, fueled by media reports and some politicians, that employment of H-1B workers somehow undercuts job opportunities for American citizens and promotes the offshoring of jobs. As studies have shown, however, the H-1B actually creates job opportunities for citizen workers.

Many American employers, however, are less familiar with the comparable brouhaha now brewing over the L-1 or “Intracompany Transferee” visa.   The L-1 — a veritable Clydesdale of work visas — allows executives, managers and employees with specialized knowledge, gained at an overseas affiliate, subsidiary or parent, to enter the U.S. and work in a comparable capacity for a related company.

This two-part blog post will show why employers hoping to import L-1 workers must now be prepared to submit more thoroughly documented cases in the face stiff of opposition from government adjudicators, Congress and the federal courts, as this formerly flexible and useful visa category is assailed from all quarters.

New constraints on the L-1 visa category, as will be shown, stem primarily from two Senators (Chuck Grassley and Dick Durbin), a coterie of federal bureaucrats, immigration adjudicators, consular officers, and some federal judges who pay undue deference to the presumed expertise of the primary immigration agency, U.S. Citizenship and Immigration Services (USCIS).    

Introduction to the L-1 Visa Category and a Retracing of Recent History

Created in 1970, the L-1 visa was enacted to “help eliminate problems [then] faced by American companies having offices abroad in transferring key personnel freely within the organization’ in order to “meet the objective of American industry which has been seriously hampered in transferring personnel . . .” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. at 2753-54.

From 1970 to 2008, the L-1 visa worked well, pretty much as Congress intended, although start-up companies often encountered difficulty bringing foreign managers into the country (unless the new venture already employed two tiers of personnel — something start-ups rarely do). 

Congress tweaked and liberalized the L-1 in 1990.  It created a new “L-1A” subcategory that included a class of “function manager,” in addition to the two existing types of manager — (1) a manager of at least a double layer of subordinate personnel, and (2) a first-line supervisor of “professionals” (individuals who held at least a relevant bachelor’s degree or the equivalent in the relevant field). Congress also said that government adjudicators, when considering whether staffing functions are relevant in determining whether a candidate qualifies as an L-1A manager, must consider “the reasonable needs of the organization, component, or function in light of [its or their] overall purpose and stage of development.  Lastly, Congress specified two new alternative definitions of specialized knowledge under the “L-1B” subcategory.

The immigration agency at the time, Immigration and Naturalization Service (INS), provided regulations in 1990 acknowledging that Congress had adopted the new function manager classification and broadened the basis for “specialized-knowledge” eligibility.  It also later offered two policy memoranda that liberally interpreted specialized knowledge and provided several real-world examples to demonstrate the concept.  The more detailed of the two L-1B  policy memoranda, issued by an INS administrator named James Puleo, thus became the “Puleo memorandum” and it stood unquestioned as agency policy (likewise followed by the Department of State) for several years.

With the INS regulations and the Puleo memorandum as guideposts, adjudicators generally approved well-documented L-1A and L-1B  visas with consistency and predictability, as long as managers “primarily” managed subordinates or functions (meaning that they spent abroad and would spend in the U.S. over half the time in management activities as defined under the INS regulations), and specialized-knowledge candidates satisfied one or the other of the liberal Puleo standards.  And employers mostly said, “It is good.”

But then, out of the blue, the successor to INS, USCIS, through its Administrative Appeals Office (AAO), issued a “non-precedent” decision in 2008 that came to be dubbed the “GST” caseGST essentially repudiated the Puleo memorandum on L-1B specialized knowledge without any change in law or regulations.

In addition, gradually over many years, before and especially since 2008, the L-1A also faced attack.  Despite the new “function manager” classification Congress created in 1990, USCIS adjudicators tended to insist that a function manager could not “primarily” manager the function, unless he or she supervised subordinates. Otherwise, the individual would be seen as performing the function rather than managing it, and be found ineligible for an L-1A.  This interpretation essentially eradicated the 1990 changes Congress made to liberalize L-1A manager eligibility.

These new constraints on L-1 visa eligibility came not from USCIS headquarters or newly published regulations signaling a change in agency interpretation, but from front-line case officers at the agency’s Regional Service Centers, and then were blessed by the AAO in the supposedly non-binding GST L-1B case and in similarly restrictive AAO nonprecedent decisions interpreting the L-1A function-manager category.

As Part II (appearing in two days) will show, this bottoms-up movement from within USCIS gradually has taken on the trappings of black letter law, and been copied and adopted by the U.S. Department of State’s Visa Office (which inexplicably reversed its earlier liberal interpretation),  U.S. consular officers at embassies and consulates abroad, the Department of Homeland Security’s Office of Inspector General, and in the case of the L-1B subcategory, a recent federal court decision. Even more troubling, the Senate and the House have proposed new constraints on the L-1 visa. If enacted, these proposals will add the obligation to pay an artificially inflated prevailing wage, encourage L-1 investigations and worksite visits, and allow the filing of civil claims against employers of L-1 workers while drastically restricting multinational consulting and sourcing firms from using this visa category.  Part II will also suggest measures employers can pursue to continue using the L-1 to achieve their domestic and global business objectives notwithstanding the concerted federal opposition. Stay tuned.