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Archive for the ‘Hot Questions’ Category
Friday, January 22nd, 2010
As a result of the catastrophic events in Haiti, immigration attorneys from around the country, including those at Klasko, Rulon, Stock & Seltzer, LLP, have come together to offer assistance to Haitian nationals in obtaining temporary protected status (TPS) and employment authorization.
Applicants from the Haitian community in New York can attend a free clinic where lawyers will provide assistance in preparing applications for TPS on Thursday, January 28, 2010 from 5:30 to 8 p.m. at the New York City Bar Association located at 42 W. 44th Street. Haitians in the Philadelphia area can contact HIAS and Council of Migration Service of Philadelphia at (215) 832-0900 to request a referral to a volunteer immigration attorney.
We encourage Haitian nationals that were in the country prior to the date of the earthquake January 12, 2010 and are eligible for TPS to act quickly, as the TPS registration period will only run for 180 days from January 21, 2010 until July 21, 2010.
Tags: EAD, TPS
Posted in Hot Questions | Click Here To Comment »
Monday, January 18th, 2010
The USCIS has announced that Department of Homeland (DHS) Secretary Janet Napolitano has designated Temporary Protected Status (TPS) for eligible nationals of Haiti. The Secretary stated that this decision is warranted because of the devastating earthquake and aftershocks which occurred on January 12, 2010. DHS estimates that approximately 100,000 to 200,000 individuals will be eligible for TPS.
TPS is a temporary immigration status granted to eligible nationals of a certain country designated by the Secretary of Homeland Security because the country has experienced temporary negative conditions, such as armed conflict or an environmental disaster, that prevent nationals of the country from returning safely or for the country to handle their return adequately.
The Haitian TPS registration period will run for 180 days. DHS stated that TPS eligibility will be for an initial period of 18 months. Applicants who apply for TPS will also be able to apply for an Employment Authorization Document and Advance Parole Travel Document. Although, these applications will require fees, DHS has stated that they will consider fee waivers for those that can demonstrate that they are unable to pay the costs of the applications.
As proof of nationality, USCIS is looking primarily for a passport (an expired one is acceptable) or birth certificates. For those that have problems with obtaining this documentation, USCIS indicated that secondary evidence would be considered.
On the subject of orphans, USCIS noted that, if adopting parents were in the Haiti at the time of the earthquake, they may go to the U.S. embassy to complete the adoption process, and the government of Haiti will waive the exit visa requirement. DHS and the Department of State are still working on the issues related to adoptions by parents not in Haiti. They urge parents not to travel to Haiti at this time.
Tags: Advance Parole, EAD, Haiti, TPS
Posted in Agency Updates, Hot Questions, News & Politics | Click Here To Comment »
Friday, November 20th, 2009
On November 19, 2009, Immigration and Customs Enforcement (ICE), the agency responsible for investigating immigration violations and enforcing immigration laws at the worksite, announced that it was issuing 1,000 new Notices of Inspections (NOIs) to employers across the country. In particular, ICE announced that it would target employers located at critical infrastructure sites which include airports, military bases, defense facilities and seaports. This announcement comes on the heels of a summer which saw the issuance of NOIs to 652 employers across the country. Secretary of ICE, John Morton stated, “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces. We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.”
Morton went on to explain that the businesses that were to receive the NOIs were selected for inspection as a result of investigative leads and intelligence, as well as their connection to public safety and national security. DHS did not release the names and locations of the businesses to be audited due to the ongoing, law enforcement nature of the investigations.
As Klasko Law reported earlier this year, ICE’s main priority in worksite enforcement actions is to target employers who knowingly hire unauthorized aliens in violation of federal law. An internal ICE memo released to the public through a freedom of information act earlier this year indicated that the agency views worksite enforcement investigations against employers as the best means of targeting and curbing the root causes of illegal immigration. As such, ICE has made the criminal prosecution of employers who knowingly hire undocumented workers their top priority. This includes the imposition of criminal charges against owners, corporate managers, supervisors and others in the management structure.
However, as ICE investigations to date have shown, employers who make inadvertent errors on their I-9 forms or in the verification process are held liable by the agency for civil penalties in the event of an audit. The current focus on investigations and prosecutions is a significant departure from the days of legacy INS when employers could expect a slap on the wrist in the form on minimal fines as just another cost of doing business. In this era of increased enforcement, employers must proactively preempt immigration related liabilities. Employers should conduct internal I-9 audits to identify issues and correct violations. Part and parcel of these reviews should be an evaluation of the employers’ current record keeping practices, to determine if new training programs are needed for HR personnel. Immigration counsel can be invaluable during these times in developing best practices including establishing protocols for the verification of the identity and work eligibility of new hires, advising employers on safeguards against discrimination in the I-9 process and advising on the use of E-Verify.
In addition, United States Citizenship and Immigration Services and ICE announced that they were launching a new I E-Verify campaign to recognize the 170,000 employers nationwide that have registered for E-Verify. E-Verify is an internet-based Employment Eligibility Verification System run by USCIS that allows employers to electronically verify the employment eligibility of certain employees. To use E-Verify, an employer enters employee information from the Form I-9 into the web-based system. E-Verify then runs that information against records in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases to confirm whether the employee is authorized to work in the United States.
For more information on worksite compliance, ICE enforcement actions, the E-Verify program and how these developments impact your business please visit our website www.worksite-compliance.com or consult with a Klasko Law attorney.
Tags: Agency Updates, E-Verify, Government Investigations, I-9 audits, ICE
Posted in Agency Updates, Hot Questions, News & Politics | 1 Comment »
Thursday, October 29th, 2009
Today, President Barack Obama signed into law the 2010 fiscal year Department of Homeland Security Spending Bill. The law extends four immigration related programs including the:
1. The EB-5 Regional Center Program, which allows immigrant investors seeking a greencard to invest $500,000 in a USCIS approved regional center;
2. E-Verify the internet-based Employment Eligibility Verification System run by USCIS that allows employers to electronically verify the employment eligibility of certain employees;
3. The Conrad 30 J-1 program which allows state health agencies to annually hire up to 30 foreign physicians to practice in rural and inner-city communities that often have difficulty recruiting physicians. The sponsored physicians are released from their two year home residency requirement if they work for a minimum of three years with the medically underserved population; and
4. The EB-4 Religious Worker Program which provides up to 5,000 permanent immigrants visas for religious workers which include ministers, professionals working in a religious vocation, and other workers in religious vocations.
The law also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process.
Posted in Agency Updates, EB-5 Investor Visas, Green Cards, Hot Questions, News & Politics, Worksite Enforcement | Click Here To Comment »
Friday, September 18th, 2009
John Morton, the newly appointed Secretary of U.S. Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security (DHS) responsible for investigating immigration violations and enforcing immigration laws at the worksite said this week that ICE will continue to crackdown on employers who hire unauthorized workers. He warned employers that “You are going to see audits regularly and on a larger scale.” Secretary Morton reiterated that the agency is set to increase the number of companies it will audit and will civil impose fines on violators. ICE will also pursue criminal charges against bad-faith actors.
Secretary Morton’s comments reiterate the announcement made on July 1 by DHS Secretary Janet Napolitano that the agency would actively audit employers to verify whether their employees were eligible to work. He further confirmed that there are 654 companies currently under investigation ICE and that many more employers will receive Notices of Inspection soon.
Most recently, ICE’s audit of American Apparel, Inc. a clothing manufacturer and retailer made national headlines after the company announced that it would be laying off 1,500 employees following receipt of a Notice of Inspection. The layoffs are estimated to impact 25% of the company’s workforce. American Apparel, Inc. is also likely to face thousands of dollars in penalties for hiring workers who weren’t eligible to be employed. The government has publicly stated that fines against the company may exceed $800 per unauthorized employee. Earlier this year, Krispy Kreme Doughnut Corporation was also fined by ICE for violations of immigration laws following an audit of the company’s I-9s that revealed that the company employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.
With the Obama Administration’s support of increased I-9 enforcement actions, it is clear that employers must pre-empt immigration related liabilities due to non-compliance with federal immigration regulations by being proactive. Internal I-9 audits are invaluable tools for identifying issues and correcting violations. Bringing in experienced immigration counsel to train human resources personnel on all aspects of immigration compliance and establish proper record-keeping procedures can significantly limit exposure and liability.
Employers who receive notices of inspection are advised to contact their immigration counsel as quickly as possible. Generally, these notices only provide three days for the employer to submit their I-9s to ICE for review. This short period of time is critical. Counsel must be contacted as quickly as possible. Employers must gather all of the company’s I-9s and supporting documentation to make sure that it is available to ICE. It is advisable to have counsel review the company’s payroll to identify any discrepancies between the number of employees and the company’s I-9s. All efforts should be made to correct any I-9s with obvious errors. Company representatives responding to the Notice of Investigation should always retain copies of any documentation submitted to ICE. Employers who can demonstrate good-faith efforts to comply with immigration laws are more likely to be assessed lower level civil fines if violations are uncovered.
For more information on government investigations and how I-9 compliance requirements affect your business please visit our website http://www.worksite-compliance.com.
Tags: Government Investigations, I-9 Compliance, ICE, Notice of Inspection
Posted in Agency Updates, Hot Questions | Click Here To Comment »
Wednesday, August 26th, 2009
We have previously reported on a lawsuit by the US Chambers of Commerce and other groups that was decided today. The lawsuit challenged the amendments to the Federal Acquisition Regulations (FAR) that require most companies with federal government contracts to enroll in the E-Verify system. The FAR amendments were originally promulgated in November of 2008, and the Obama Administration has indicated it wants the amendments to take effect September 8, 2009.
The court was asked to rule on both sides’ motions for summary judgment - essentially, requests by both sides to end the lawsuit because the facts and law were clear. The Chambers argued, essentially, that because Congress had made the E-Verify program voluntary, but the new Federal Acquisition Regulations made the program mandatory for federal contractors, the FAR amendments violated Congress’ express directive and were invalid. The government’s argument, in essence, was that the FAR amendments did not make E-Verify mandatory - that a company could always choose not to seek federal contracts, in which case the company would not have to participate in E-Verify.
The court agreed with the government’s position, dismissing the Chambers’ lawsuit and clearing the way for the FAR amendments to go into effect on September 8, unless the Chambers appeal the court’s decision.
Congress may also get in the action, as the E-Verify program is still set to “sunset” as of September 30. A provision extending the program (and providing explicit statutory authority for the FAR provision) was included in the Senate’s bill funding the Department of Homeland Security, but has not yet been enacted.
Tags: E-Verify, Worksite Enforcement
Posted in Hot Questions, Worksite Enforcement | Click Here To Comment »
Thursday, May 7th, 2009
An all-to-frequent question we have been answering these days is how to advise a work-based nonimmigrant in H, L, E or similar status who is terminated.
We have a resource for employers and terminated employees specifically written with respect to the H category, and much of the advice in that document, from the employee’s perspective, applies equally to all employment-based nonimmigrants. The most important rule is that a terminated nonimmigrant does not have any formal “grace period” or fixed period of time during which their status is considered valid. Nonimmigrants are admitted to the US for a particular activity - workers to work, students to study, visitors to visit - and as soon as they stop that activity, they are out of status. Note that periods of severance are not periods of employment, and USCIS generally does not regard a person receiving status as being “in status.”
Unfortunately, this rule means terminated nonimmigrants need to deal with the situation immediately - and there is no “one size fits all” solution that we can recommend. They can seek a change of status to another status they qualify for, such as student status or visitor status; make arrangements to depart as soon as possible; or may have other options depending on their personal situation. Therefore, the best advice to a terminated nonimmigrant is to refer him or her to one of our attorneys for a detailed consultation, during which we can help develop a strategy to deal with the immigration consequences of the termination.
Tags: H-1B, layoffs and terminations
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
Tuesday, April 28th, 2009
Over on the firm’s main web site, we’ve added a new resource that explains the naturalization process and some of the most common questions that arise. Once permanent residents have obtained that status, they often ask for advice about when and how they can become citizens of the United States, and this article explains the requirements for naturalization, as well as situations that may cause a person to want to seek legal advice before becoming a US citizen.
The direct URL for the article is http://www.klaskolaw.com/articles.php?action=view&id=231.
Posted in Hot Questions | Click Here To Comment »
Tuesday, April 21st, 2009
Today, USCIS provided an updated cap count stating that, as of last Friday, 44,000 of the 65,000 available H-1B petitions (and 20,000 petitions claiming the additional 20,000 Master’s Degree exemptions) have been received. Based on comparison of today’s announcement with yesterday’s that 43,000 petitions were received as of April 13, it appears that, for the moment, anyway, H-1B availability may continue into the summer for the first time in several years.
Those of us with years of experience in the immigration field will recall the frustrations of advising clients during this “cap watch” - employers need to understand that the cap could be reached at any time, so hiring decisions need to be accelerated and petitions need to be prepared quickly.
Fortunately, it also means that employers can make hiring decisions for the next few weeks without the worry that their petitions will be rejected for lack of available H-1Bs.
Tags: Cap Count, H-1B
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
Thursday, March 26th, 2009
This year, there is a realistic possibility that the number of H-1B petitions submitted in the first week of the filing period will be less than the total number available for the year. Last year, the government amended the H regulations to modify the “lottery” system for those years where enough applications are received at the very start of the filing season to exhaust the numbers. (more…)
Tags: H-1B
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
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