Debra R. Shpigler Co., LPA
WAL-MART RAID RAISES ISSUES FOR H.R. PROFESSIONALS
The recent arrest of 250 cleaning workers at Wal-Mart stores has generated a great deal of interest in corporate offices around the country. On the morning of October 23, 2003, the U.S. Immigration and Customs Enforcement (ICE) raided 61 Wal-Mart stores in 21 states. ICE officials arrested workers who had just finished their night shift cleaning jobs. Most of these workers were directly employed by outside contractors. According to Wal-Mart, the chain uses more than 100 such contractors to clean its stores across the United States. Now, the U.S. attorney in Harrisburg, PA has announced that Wal-Mart itself is the target of a grand jury probe into whether the chain knowingly permitted the employment of illegal aliens.
The Wal-Mart raid should serve as a wake-up call to employers. They must make sure that their hiring officials are familiar with the rules regarding employment authorization (including the way to complete Form I-9 and when employment must be re-verified). They must also understand the laws regarding document retention and storage, document fraud, and discrimination based upon national origin.
An experienced immigration lawyer can assist employers by preparing a handbook on immigration law for human resource professionals. An immigration lawyer can also provide on-site or computer-based training for those professionals, so they aren’t faced with the legal headaches that Wal-Mart is now facing.
H-1B CAP DROPS BACK TO 65,000
T he cap on the number of H-1B visas was lowered from 195,000 to 65,000, effective October 1, 2003. This means that employers seeking to hire professional workers, such as engineers, teachers, accountants, and software engineers may have to wait until the start of the next fiscal year, October 1, 2004, before their prospective employees can begin work.
In 1990, Congress established a cap on the number of H-1B petitions that could be approved each fiscal year. This cap was initially set at 65,000, but Congress raised the cap in 2000, when it became clear that this number would not satisfy the needs of the U.S. business community. However, the 1998 law contained a “sunset” clause which provided that the cap would revert to 65,000 on September 30, 2003. Citing the continuing difficulties in the economy, Congress has, as of this writing, refused to raise the cap again.
Every year, the SSA reviews W-2 forms and credits social security earnings to workers. If a name or social security number on a W-2 form does not match the SSA’s records, the social security earnings go into a suspense file while the SSA tries to resolve the discrepancy. One of the ways in which the SSA does this is by sending a “no match” letter to the employer of the employee in question.
Given the situation, we suggest that employers that are thinking about hiring new H-1B workers do so as soon as they can predict their hiring needs. This will make it more likely that their petitions will be approved before the cap is reached. In addition, employers should seriously consider using the Premium Processing program. Under this program, U.S. Citizenship and Immigration Services (the successor to INS) will guarantee processing of the petition within 15 days of receipt. USCIS charges an extra $1,000 for this service, but that money may be well spent, given the alternative.This Immigration Bulletin is not intended as a substitute for professional legal advice.
Debra R. Shpigler Co., LPA is a member of the American Immigration Lawyers Association.