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Archive for the ‘Agency Updates’ Category
Wednesday, January 12th, 2011
Yesterday, the USCIS issued an updated version of the M-274, The Handbook for Employers. Federal immigration law requires that all U.S. employers verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. The Handbook is the Service’s official guide to completion of the Form I-9, Employment Eligibility Verification Form and serves as an important resource to employers in the employment eligibility process. The new Handbook replaces the previous edition, which took effect in April 2009.
The Handbook has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions.
Some of the new sections and tools included in The Handbook include:
-New visual aids for completing Form I-9;
-Examples of new relevant USCIS documents;
-Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students;
-Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and,
-Expanded guidance on extensions of stay for employees with temporary employment authorization.
Additionally, The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.
For more information on the employment eligibility verification process we encourage you to request a complementary recording of our recent Webinar entitled Increased Immigration & Worksite Enforcement: Strategies to Weather the Perfect Storm by emailing us at klaskoonline@klaskolaw.com.
To learn more about the Klasko, Rulon, Stock & Seltzer, LLP worksite compliance practice group please visit our website www.worksitecompliance.com
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Wednesday, January 12th, 2011
Today the U.S. Consulate in Mumbai erroneously posted an incorrect version of the February 2011 visa bulletin which reported that EB-2 India priority dates would become current, allowing individuals with previously backlogged priority dates to file adjustment of status and immigrant visa applications. However, The U.S. Department of State has clarified that the Mumbai posting was incorrect and India EB-2 remains at May 8, 2006.
Below is a copy of the February 2011 visa bulletin also available online at: http://travel.state.gov/visa/bulletin/bulletin_5228.html
| Employment- Based |
All Chargeability Areas Except Those Listed |
CHINA- mainland born |
DOMINICAN REPUBLIC |
INDIA |
MEXICO |
PHILIPPINES |
| 1st |
C |
C |
C |
C |
C |
C |
| 2nd |
C |
01JUL06 |
C |
08MAY06 |
C |
C |
| 3rd |
01APR05 |
01JAN04 |
01APR05 |
22FEB02 |
08JUL03 |
01APR05 |
| Other Workers |
01MAY03 |
22APR03 |
01MAY03 |
22FEB02 |
01MAY03 |
01MAY03 |
| 4th |
C |
C |
C |
C |
C |
C |
| Certain Religious Workers |
C |
C |
C |
C |
C |
C |
| 5th |
C |
C |
C |
C |
C |
C |
| Targeted Employment Areas/ Regional Centers |
C |
C |
C |
C |
C |
C |
| 5th Pilot Programs |
C |
C |
C |
C |
C |
C |
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Thursday, January 6th, 2011
I will admit to being surprised by the current discussions underway in the media as politicians and commentators, including State Representative Daryl Metcalfe here in Pennsylvania, talk about ways of ending the United States’ 200-plus-year recognition that birth in the United States confers United States citizenship on the child, regardless of the immigration status of the parents.
Opponents of birthright citizenship, who also generally oppose the United States’ overall willingness to accept legal immigration, refer pejoratively to the children of mothers without immigration status as “anchor babies” – implying that the children “anchor” the parents to the United States and make it difficult or impossible for the parents to be deported. This whole “birthright citizenship” debate, therefore, is based on a false understanding of the reality of immigration law: a child born in the United States is of no, or almost no, practical value to the parent as a means of obtaining lawful immigration status in any reasonable timeframe.* (For those who would like the details, I’ve put them at the bottom of this post.)
But why is US citizenship a birthright? Our current law on acquisition of citizenship at birth in the United States is based on more than 400 years of precedent. (more…)
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Tuesday, December 14th, 2010
Effective on December 23, 2010, U.S. Citizenship and Immigration Services (“USCIS”) is requiring the use of a new Form I-129, Petition for a Nonimmigrant Worker, to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new form contains several changes to previous editions of the form, including being more detailed about the location of the employee’s work. Most notably it requires certain petitioning employers to make an export control license attestation regarding the sponsored employee. The so-called “deemed export” attestation is made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners only.
Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).
What Are the EAR and ITAR Regulations?
The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries. An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship. More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page. The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States.
Which Employers Are Likely to Require Licenses?
Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129. In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available. However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.
What Additional Responsibilities Are Required Now of All Petitioning Employers?
With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared. Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies. For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary.
Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations . Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary. If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.
The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested. Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance.
The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129. If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.
Tags: Agency Updates, Government Investigations, H-1B, Immigration Compliance, Worksite Enforcement
Posted in Agency Updates, Hot Questions, Temporary Visas, Worksite Enforcement | Click Here To Comment »
Monday, December 6th, 2010
Klasko, Rulon, Stock & Seltzer LLP is pleased to announce the launch of our new EB-1 micro-site, dedicated to providing information on non-PERM immigration options and self-petition green cards. Our new site provides extensive information on Extraordinary Ability, National Interest Waiver and Outstanding Researcher/Professor petitions. It also includes information on non-immigrant visas, such as understanding the J-1 home residency requirement and obtaining a waiver of the same, as well as using the O-1 as a bridge to a waiver. The site also provides important information relating to maintaining a valid non-immigrant status while the permanent residency application is pending.
We invite you to visit www.eb1immigration.com to learn more.
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Tuesday, November 16th, 2010
On November 12, 2010, USCIS updated its “cap count” for H-1Bs and it is evident that the pace of filings has accelerated somewhat. As of this date, USCIS has announced that it has receipted in 47,800 “regular” H-1B petitions. The separate 20,000 quota for holders of U.S. master’s degree is also nearly completely filled with 17,400 petitions receipted in.
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Monday, November 15th, 2010
On November 10, 2010 the U.S. Department of Justice (DOJ) announced that it has reached a settlement agreement with Hoover Inc., a leading manufacturer of vacuum and carpet cleaners with facilities in Ohio and Texas, to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 employment eligibility verification process upon lawful permanent residents.
According to the DOJ, Hoover required all permanent residents who presented a permanent resident card for I-9 purposes to produce a new green card when theirs expired. In contrast, Hoover’s U.S. citizen workers were not required to present new documents. Like U.S. citizens, permanent residents are always work authorized, regardless of the expiration of their documentation. The Immigration and Nationality Act (INA) prohibits employers from treating permanent residents differently than U.S. citizens in the I-9 process.
The settlement requires Hoover to pay $10,200 in civil penalties. Hoover has also promised to train its human resources personnel about employers’ nondiscrimination responsibilities in the I-9 process, and it will provide periodic reports to the DOJ for one year regarding their progress.
The Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA, which protects work authorized individuals against discrimination in hiring, firing and recruitment or referral for a fee on the basis of citizenship status and national origin. The INA also protects all work authorized individuals from discrimination in the employment eligibility verification process and from retaliation.
For more information about employer obligations in the hiring process please visit our website at www.worksite-compliance.com
(more…)
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Monday, November 1st, 2010
As further evidence of increased enforcement efforts by the Department of Justice (“DOJ”), its Office of Special Counsel for Unfair Immigration-Related Employment Practices (“OSC”) has just announced that it reached a the settlement agreement with Catholic Healthcare West (CHW) to resolve allegations that it discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. This type of violation is often referred to as document abuse, a violation of the Immigration and Nationality Act (INA) which prohibits employers from imposing different or greater employment-eligibility verification (I-9) standards on the basis of a worker’s citizenship status.
Under the terms of the settlement, CHW has agreed to pay $257 ,000 in civil penalties as well as $1,000 in back pay to the charging party. The OSC reported that this is largest amount of civil penalties ever paid to resolve such allegations. Nor do the fines and the potential for additional back-pay end there. As part of the agreement, CHW has also agreed to complete a review (conducted by employees who are independent of the routine I-9 process) of I-9s for all non-US citizens and naturalized citizens hired at all CHW hospitals and medical centers to identify each instance of over-documentation and whether employees suffered lost wages due to the document abuse. CHW agreed to issue progress reports on the review every 60 days and to provide back pay to make whole any employees who suffered lost wages as a result of document abuse within 10 days of the report. CHW also agreed to provide to OSC full documentation relating to the review as well as a final report to be reviewed by OSC to determine whether CHW was in full compliance. CHW also agreed to implement a detailed system-wide written policy describing nondiscriminatory employment eligibility verification procedures and to conduct I-9 training with annual updates.
Such actions by OSC against employers—including Universities and Hospitals—are not new. As the US Immigration and Customs Enforcement (ICE) has stepped up I-9 audits, so has OSC increased enforcement of antidiscrimination rules as they relate to the I-9 process. As previously reported, for example, OSC recently filed suit alleging that John Jay College (“John Jay”) discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. That lawsuit alleges that John Jay engaged in a pattern and practice of discrimination, as at least 103 other people were also required to provide documentation beyond what was required and it seeks penalties of $1100 for each individual, in addition to compensation for each person who was impacted by the alleged discriminatory practice. Indeed, as we discussed previously, OSC also entered into an agreement with United States Citizenship and Immigration Services (“USCIS”) to share E-Verify information. Specifically, under the agreement, the USCIS will share data obtained from queries run through E-Verify with OSC, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act. USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.
In light of these recent OSC enforcement actions, and the recent information sharing agreement, it is clear that the issue of discrimination in employment verification is a focus of both USCIS and DOJ. Employers should discuss I-9 compliance with experienced legal counsel and take all steps to ensure that employees responsible for I-9 completion are aware of the anti-discrimination provisions of the Immigration and Nationality Act. These steps include not only training employees on the “nuts and bolts” of these processes, but also training related to potential discrimination claims.
For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com
Tags: Agency Updates, discrimination, DOJ Office of Special Counsel, E-Verify, Government Investigations, I-9, I-9 Compliance, Immigration Compliance, Worksite Compliance, Worksite Enforcement
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Sunday, October 31st, 2010
This month, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced that ICE’s worksite enforcement numbers have climbed to historic highs with record breaking numbers of I-9 audits, fines and increased criminal prosecution of employers.
ICE announced that since January 2009, it has conducted I-9 audits of more than 3,200 US employers, more than ever before. By comparison, in fiscal year 2009—itself a banner year for I-9 audits–ICE conducted approximately 1400 audits. The audits conducted since January 2009 also resulted in record breaking penalties–ICE debarred 225 companies and individuals from doing business with the federal government and imposed approximately $50 million in sanctions for worksite enforcement violations. The increase in audits and sanctions is dramatic–ICE explained that the figures for just this year are higher than the total amount of audits and debarments for the entire Bush administration.
ICE also actively pursued criminal enforcement of employers–in fiscal year 2010, ICE charged 180 business owners, employers, managers, or supervisors with hiring illegal aliens, up from 135 in fiscal 2008 and 114 in fiscal 2009.
ICE pledged to continue aggressive enforcement against employers stating “enforcing worksite laws not only promotes fairness in the workplace, but it also substantially reduces the incentive for aliens to enter the United States illegally.”
These record breaking numbers reflect implementation of a new worksite enforcement strategy first announced by the Obama administration in April 2009. Rather than large scale raids, the new focus is on employers. As part of this strategy, ICE identified I-9 audits as an important administrative tool in building criminal cases, issuing civil penalties such as fines and bringing employers into compliance with the law. Not only will ICE use traditional criminal enforcement methods, but the guidance to the field emphasizes that administrative tools will be used “to advance criminal cases, and in the absence of criminal charges, to support the imposition of civil fines and other available penalties.” Indeed, the guidance makes clear that the “the most important administrative tool is the Notice of Inspection (NOI) and the resulting Form I-9 audit” as it will not only support the imposition of civil fines and other available penalties, but it “will often serve as an important first step in the criminal investigation and prosecution of employers.”
Consistent with this use of I-9 audits as the key administrative tool, ICE announced a nationwide initiative to audit employers’ Form I-9 employment eligibility verification records. As part of this initiative, in the first week of July 2009 alone, ICE issued Notices of Inspection (NOI) to over 650 employers across the country. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008. As explained in earlier postings, ICE continued such widespread audits throughout the year, ultimately resulting in over 3200 audits. This widespread enforcement initiative is much different than any in the past. In the past, initiatives often focused on the most likely offenders—employers in industries such as meat-packing, construction, landscaping and manufacturing—commonly believed to regularly hire unauthorized workers. While these businesses were included within the I-9 audits, the reach was much broader to include a wide variety of businesses throughout the entire country. The message is clear—no employer is safe from an I-9 audit and investigation.
In order to avoid potential liability, employers are well advised to develop and implement detailed I-9 policies and practices. ICE recommends that employers, at a minimum, establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process; permit the I-9 and any E-Verify process to be conducted only by individuals who have received training; and include a review of the completed I-9 and documents by a second person as part of each employee’s verification to minimize the potential for a single individual to subvert the process. Regular audits–conducted before ICE comes knocking on the door– are also key to obtain compliance and limit liability.
For more information, contact Elise Fialkowski at Efialkowski@klaskolaw.com
Tags: E-Verify, Government Investigations, I-9, I-9 Compliance, ICE, Immigration Compliance, Notice of Inspection, Worksite Compliance, Worksite Enforcement
Posted in Agency Updates, News & Politics, Worksite Enforcement | Click Here To Comment »
Thursday, October 21st, 2010
Klasko, Rulon, Stock & Seltzer is pleased to announce that the firm received the highest ranking (Tier 1) for Immigration Law in both New York and Philadelphia in the first ever, just released U.S. News and World Report and Best Lawyers “Best Law Firm” rankings.
The rankings, available online at www.usnews.com/bestlawfirms, are based on a combination of “hard data with peer reviews and client assessments” according to Steven Naifeh, President of Best Lawyers. Every Fortune 100 company participated in the survey. “Achieving a high ranking is a special distinction that signals a unique combination of excellence and breadth of expertise” as stated in the press release issued by U.S. News.
Klasko, Rulon, Stock & Seltzer, LLP is one of the country’s leading business immigration and nationality law firms. The firm has offices in Philadelphia and New York and is known for its top caliber representation of health care institutions, universities and colleges, businesses and individuals in a wide range of immigration law matters. In addition to USNWR, the firm has been recognized in the prestigious Chambers Global: The World’s Leading Lawyers for Business (Chambers and Partners) as one of the top 5 business immigration law firms in the country.
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