The court found in favor of the school. The court rejected the student’s argument that tutoring at the Morrisville campus was “on campus” employment because both campuses were part of the SUNY network. Specifically, the court stated that “the tutor position could not have been on-campus employment as SUNY Morrisville – the place where petitioner was employed – is located almost 70 miles from the SUNY Binghamton campus.” The court also found that the student’s tutor position “does not appear to have any educational affiliation with SUNY Binghamton’s curriculum in a manner contemplated by these regulations.” The court recognized that both schools were in the SUNY network, but that they are “separate and distinct educational institutions with differentiated and designated missions.”

 
Klasko reminds students that they always check with their designated school official (DSO) prior to accepting off-campus employment in order to maintain valid F-1 status.

 
A copy of the decision can be read at: decisions.courts.state.ny.us/ad3/Decisions/2010/507473.pdf

According to ICE, Kramer hired undocumented workers, gave those workers the names of former employees, and then paid the undocumented workers with checks in the names of the former employees. U.S. District Court Judge Darnell C. Jones, II, ordered Kramer to pay a $75,000 fine to be paid with personal, not corporate, funds. Judge Jones also ordered Kramer to perform, at the Court’s direction, community service.

Increased investigations and I-9 audits, coupled with ICE’s prerogative to collect civil penalties from employers and individuals, necessitate the maintenance of organized I-9 files.

For more information on worksite compliance, ICE enforcement actions, and how these developments impact your business please visit our website www.worksite-compliance.com or consult with a Klasko Law attorney.

Employers around the country should expect ICE to issue more NOIs throughout 2010. As ICE explained, in 2009 it “implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers.”

Klasko reminds employers that it is critical to keep accurate I-9 records. Form I-9 requires employers to determine the employment authorization of hires by reviewing and recording the employee’s identity documents and determining whether the documents reasonably appear to be genuine and related to the individual. Employers are required to maintain an original Form I-9 and supporting documentation for all current employees. Employers also must retain an I-9 file for at least 3 years from the employee’s hire date, or 1 year after the employee’s termination date, whichever is longer.

For more information on worksite enforcement issues, please visit our website at: http://www.worksite-compliance.com.

 
There are two important fee changes listed in the proposed rule. First, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the visa category, as determined by the cost of processing that particular category of visa. Second, the proposed rule increases the adult passport book application fee from $55 to $70.

 
1. Immigrant Visa Processing Fees

 
DOS is changing the fee for processing an immigrant visa from $355 for all immigrant visas, to a four-tiered fee based on estimates for each category of immigrant visa, as applications for certain categories of immigrant visas cost more to process than others. As a reminder, immigrant visa fees are collected by the DOS when applicants apply for an immigrant visa at a U.S. Embassy or Consulate abroad, rather than applying for a green card in the U.S.

 
The new tiered system will have the following cost changes:

 
· Family-based (immediate relative and preference) visas, which are processed on the basis of an I-130, I-600 or I-800 petition, will be $330.

· Employment-based visas, which are processed on the basis of an I-140 petition, will increase significantly to $720.

· Other immigrant visa applications, including for I-360 self- petitioners, special immigrant visa applicants and all others, will have a fee of $305.

· Winners of the Diversity Visa lottery who apply for immigrant visas will increase from $375 to $440 based on estimates for an FY 2010 workload projection of 81,000 applications.

· DOS also is increasing the immigrant visa security surcharge, which almost all applicants must pay, from $45 to $74 to cover increased security costs.

 
2. Fees for U.S. Passports

 
DOS is increasing the application fee for a passport book for an adult (age 17 and older) from $55 to $70. The application fee for a passport book for a minor (age 16 and younger) will remain at $40. DOS also is increasing the security surcharge from $20 to $40 as well, in order to cover the costs of increased border security which includes, but is not limited to, enhanced biometric features in the passport book itself.

 
Additional fee increases for passport services:

 
· Extra pages - In the past, DOS provided extra pages in a customer’s passport, to which foreign countries’ visas may then be affixed, at no charge. DOS now will charge $82 for this service.

· Passport Card - DOS has decided to raise the adult passport card application fee from $20 to just $30, and the minor passport card application fee from $10 to just $15.

· Documentation for Renunciation of Citizenship – The cost study found that documenting a U.S. citizen’s renunciation of citizenship is extremely costly, requiring American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. A new fee of $450 will be established to help defray a small portion of the total cost to the government of documenting the renunciation of citizenship.
When will the fees increase?

 
DOS intends to implement this proposed rule, and initiate collection of the new fees, as soon as practicable following the expiration of the 30-day public comment period following publication in the Federal Register on February 9, 2010, and after the DOS has had the opportunity to fully consider any public comments received. Klasko will alert our clients who may potentially be impacted by the increased fees.

If an H-1B employer received TARP funding, the employer must make attestations on its Labor Condition Application (LCA) filed with the Department of Labor (DOL), including attesting to good faith recruitment efforts and having hired any qualified US workers, prior to filing an H-1B petition. Any company that received TARP funding and seeks to hire H-1B workers is considered to be an “H-1B dependent employer” under EAWA.

H-1B dependent employers, including all TARP recipients with outstanding obligations, make these additional attestations on an LCA:

• The employer has taken or will take good faith steps meeting industry-wide standards to recruit U.S. workers.
• The employer will offer compensation that is at least as great as those offered to the H-1B worker.
• The employer has offered or will offer the job to any U.S. worker who applied and is equally or better qualified for the job.
• The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing the I-129 petition.
• The employer will not place an H-1B worker at another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker. This is called the “secondary displacement inquiry.”

What if your company received TARP Funding?

H-1B employers first must identify if they have received TARP funding, as USCIS contacts the Department of the Treasury, the Federal Reserve and other relevant agencies to identify employers who have received TARP funding. Employers must accurately complete Form I-129W, H-1B Data Collection and Filing Fee Exemption Supplement, which asks the employer if it is H-1B dependent. You should alert your Klasko Law attorney if your company received TARP funding, as additional recruitment steps may be necessary before you file an H-1B petition for a new H-1B employee. This is particularly important in light of the approaching April 1, 2010 deadline for filing new H-1B petitions with an October 1, 2010 start date.

If your company has received TARP funding, EAWA applies to any H-1B petition filed on or after February 17, 2009 for employment by a “new employer.” Any TARP recipient seeking to hire a new H-1B employee with no prior employment relationship is subject to EAWA. This includes “concurrent employment,” where an employer hires a new employee who continues work with another employer in H-1B status. EAWA also applies even if you filed the H-1B petition prior to February 17, 2009, but the new H-1B employee commences employment after February 17, 2009.

EAWA does not apply to H-1B extension petitions for a current employee with the same employer. It also does not apply to an H-1B petition to change the status of a current U.S. work-authorized employee to H-1B status with the same employer. For example, if the employer has an employee in L-1 status, and the employer wishes to change the employee’s status to H-1B, EAWA would not apply.

EAWA remains in effect until February 17, 2011.

What if We Repaid Our Funding?

USCIS recently confirmed that if you received TARP funding, but have repaid your obligations, an employer will no longer be considered H-1B Dependent. Employers who have repaid their obligations should answer “no” to Question A.1.d. on the H-1B Data Collection and Filing Fee Exemption Supplement. USCIS also encourages employers to submit evidence that their TARP obligations have been repaid to avoid processing delays.

 
Expedited removal in which the government covers the costs of the return airline ticket, bars the individual from reentering the U.S. for a period of five years.  CBP officers are authorized to institute expedited removal when they believe that an individual is entering the U.S. in violation of the terms and conditions of the visa.  Reports from those impacted state that they were put into secondary inspection by CBP officers and coerced into signing statements that contain falsehoods.  These statements were then used as the basis for their removal.  Interestingly, the H-1Bs were not advised that they could withdraw their applications to enter the U.S. and return home at their own expense.  This option would have allowed the nonimmigrants to apply for a new H-1B visa stamp either with the same or a new H1B employer and reenter the U.S. at anytime thereafter.

 
Entering nonimmigrants are often placed into secondary inspection if CBP officers wish to question the alien as to the intent of their stay in the U.S.  Although intimidating, it is critical for nonimmigrants to ensure that they answer all questions honestly and accurately, as only erroneous expedited removal orders can be vacated. Unfortunately, aliens seeking entry at CBP do not have a right to counsel and therefore, must be extremely precise when articulating their reasons for entry to CBP.  It is believed that CBP in Newark is instituting these actions in response to the recent USCIS memo which limits the definition of the employer-employee relationship and in particular targets IT consulting companies and “job shops.” 

Klasko Law will continue to provide updates on this issue.

 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.

The federal regulations governing the H-1B classification require that an employer establish that it has an employer-employee relationship with the beneficiary of a petition.  The new memo provides guidance on how USCIS will evaluate if this relationship exists.  The memo lists a variety of factors to be considered when evaluating the petitioner’s right to control the beneficiary, including the manner and extent to which the petitioner actually supervises the beneficiary; the petitioner’s right to control the beneficiary’s daily work and work product; and the petitioner’s right to hire, pay and fire the beneficiary.  USCIS instructs its adjudicators to review the totality of the circumstances when making a final determination of whether the employer-employee relationship exists.  The memo also requires that the petitioner establish that the right to control the beneficiary’s work will continue to exist throughout the duration of the beneficiary’s employment with the petitioner.

Read more after the jump.

The memo proceeds to provide several examples of employment relationships some of which satisfy the new criteria for documenting an employer-employee relationship and some which would be prohibited under the new guidance.  In cases where an H-1B worker is placed at a third-party worksite, the petitioner must establish that the petitioner will have the right to ultimate control over the beneficiary’s work for the H-1B to be approved.  In contrast, if the H-1B worker will be employed at a “job shop”/ third-party worksite where they will report to a manager of that third-party company and the petitioner will not retain control over the beneficiary’s work, the petition will be denied.

In cases where the H-1B beneficiary is self-employed or has an ownership interest in the petitioning entity, the memo states that the petition must demonstrate that the petitioning entity is distinct from the beneficiary such that the necessary employment relationship and control exists.  USCIS warns applicants to expect greater scrutiny in cases where the H-1B beneficiary is also the petitioner and reports to no one but himself or herself.  If there is no separation between the petitioning company and the beneficiary and no evidence that the business entity will control the H-1B’s work, the petition will be denied. In cases where the beneficiary is an independent contractor whose work will not be controlled by the petitioner, the USCIS takes the position that an employment relationship does not exist and the H-1B is not appropriate.

To establish the employer-employee relationships discussed in the memo, employers can expect that they will see an increase in the kinds of supporting documentation that they will need to provide with H-1B filings.  All H-1B petitions will need to include evidence that the petitioner and the H-1B worker will have a valid employer-employee relationship and that the petitioner will have the right of control over the beneficiary’s work. This will be especially important in cases where the foreign national will work at client sites during the H-1B validity period.  In these instances, the employer will need to document that they will retain the right to supervise, direct and review the H-1B beneficiary’s work and terminate their employment.  Evidence to establish the employer-employee relationship can include:

-A complete itinerary of services or engagements that specifies the dates of each service or engagement, the name and address of the actual employer, and the names and address of the establishment, venues or locations where the services will be performed for the period of time requested;

-Copy of signed employment agreement between the petitioner and beneficiary detailing the terms and conditions of employment;

-Copies of employment letters that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;

-Copies of relevant portions of valid contracts between the petitioner and a client (in which the petitioner has entered into a business agreement for which the petitioner’s employees will be utilized) that establishes that while the petitioner’s employees are placed at the third-party worksite, the petitioner will continue to have the right to control its employees;

-Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary, which provide information such as detailed description of the duties the beneficiary will perform, the qualifications required to perform the job duties, and who will supervise the H-1B worker; 

-A description of the performance review process; and/or 

-A copy of the petitioner’s organizational chart, demonstrating the beneficiary’s supervisory chain.

The memo also notes that if the H-1B worker will be placed at multiple worksites during the course of the H-1B validity period, the employer will need to provide a complete itinerary of the worker’s engagements, including the dates of each engagement, the names and addresses of the actual employers, and the names and addresses of the locations where the worker will be placed.  The memo also reminds employers that they must include labor condition applications (LCAs) certified by the Department of Labor for each employment location.

In the case of H-1B extensions, USCIS will review the petition to determine if the necessary employer-employee relationship existed during the initial H-1B status approval period and whether it will continue to exist for the extension. Evidence to document the ongoing relationship can include:

-Copes of the beneficiary’s pay records;

-Copies of the beneficiary’s payroll summaries and/ or Form W-2s;

-Time sheets;

-Copies of prior years’ work schedules;

-Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period;

-Copies of dated performance reviews; and/ or

-Copies of any employment history records, including but not limited to, documentation showing dates of hire, dates of job changes, i.e. promotions, demotions, transfers, layoffs, and pay changes with effective dates.

If USCIS determines, while adjudicating the extension petition, that the petitioner failed to maintain a valid employer-employee relationship with the beneficiary throughout the initial approval period, or violated any other terms of its prior H-1B petition, the extension petition may be denied.

Throughout the memo, the USCIS notes that the petitioner must establish the requisite employer-employee relationship throughout the requested validity period of the petition.  Generally, USCIS has always approved extension requests for up to three years, even if the employer did not provide documentation to support the beneficiary’s activities for all three years.  However, the tone of the memo implies that employers can expect that USCIS will only approve petitions for the period of time established by the supporting documentation.  This may be problematic for many business that may not have contracts in place for employment that will occur a year or two down the line.  These businesses may be required to file multiple H-1B extensions.

The memo makes clear that employers must adapt their practices for the preparation and submission of H-1B petitions.  Those petitions that do not meet the requisite evidentiary requirements may be subject to Requests for Evidence.  If you have further questions on the new agency guidance please contact your Klasko Law Attorney.

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.

The Department of Labor (DOL) has nationalized the process for issuance of prevailing wage determinations used in a variety of immigration applications including PERM, H-1B, H-1B1 (Chile/Singapore), E-3 (Australia), and H-2B.  Beginning January 1, 2010, employers must now apply for prevailing wage determinations to the DOL rather than the state workforce agencies (SWAs).  DOL has indicated that from January 1, 2010 through January 20, 2010 prevailing wage requests must be submitted by mail.  After January 20, 2010 DOL expects that submissions will be able to be made through the iCERT portal.   
 
DOL issued prevailing wage determinations are a mandatory requirement for PERM applications.  The agency has advised employers to submit prevailing wage requests at least 60 days before beginning recruitment or filing an application for labor certification.  Likewise, DOL has indicated that prevailing wage requests using independent wage sources could have lengthier processing times.  As we have reported, the introduction of the iCERT system for preparation of LCAs has significantly lengthened preparation time due to technical glitches in the system. It is therefore critical for employers to be aware of these delays, especially if they are filing PERM applications for H-1B nonimmigrant workers who are reaching the end of their fifth year of status and who wish to extend that status beyond the six-year maximum under the provisions of AC21. 

In addition to processing delays, it remains to be seen if the validity periods for prevailing wage determinations issued by the DOL will be shorter than those that were issued by local SWAs.

Although prevailing wage determinations from the DOL are not required for H-1B cases, they are preferred by some employers as they provide important safe harbors.  Given the expected delays in DOL processing times for issuance of prevailing wage determinations it is critical that employers identify and begin preparing cap-subject cases for the Fiscal Year 2011 as soon as possible.

While DOL policy guidance states that there will be no changes in the way prevailing wages are determined, employers should note that the national office may take a different approach from local SWAs in determining how occupational categories and wage levels are assigned.   DOL has indicated that the national office will entertain requests for redetermination.  Redeterminations will be handled by the Office of Foreign Labor Certification.  Requests to reconsider redeterminations can be submitted to the Board of Alien Labor Certification Appeals (BALCA).  It remains to be seen how receptive the national office will be to requests to reconsider prevailing wage determinations, including the assignment of occupational categories and wage levels.