W w w. k l a s k o l a w. c o m. Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron...

Immigration 2009:Immigration 2009:

Navigating Stormy SeasNavigating Stormy Seas

w w w . k l a s k o l a w . c o w w w . k l a s k o l a w . c o mm

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years.

Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two practicing lawyers to receive the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law.

Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 editions selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. Ron is a graduate of the University of Pennsylvania School of Law.


William A. Stock, Esq.

Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 15 years.

Bill is featured in The Chambers Global Guide, The Best Lawyers in America, and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law.

Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.


Suzanne B. Seltzer, Esq.

Suzanne Seltzer is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, and manages the New York office. Suzanne is well known for her representation of universities, hospitals and research institutions and their medical and research personnel in obtaining extraordinary ability and national interest waiver immigrant petitions, O-1 nonimmigrant visas, and waivers of the two-year home country residence requirement.

Suzanne holds several leadership positions within the immigration bar. She is the Chair, Vermont Service Center Liaison Committee; Member, U.S. Service Center Operations Committee; NAFSA Regulatory Ombudsman; co-Chair, National Coalition for Access to Healthcare, and is the past Co-Chair of AILA’s NY District Director Liaison Committee.

Suzanne was honored with the Cornerstone Award by the Lawyers Alliance for New York in recognition of her outstanding contributions to pro bono work on behalf of non-profit agencies, and the Samuel E. Klein Pro Bono Award for her work on behalf of victims of human trafficking.

Suzanne is named in The Best Lawyers in America, Best Lawyers in New York, SuperLawyers, and holds the highest rating of “AV” (LexisNexis Martindale-Hubbell).

Suzanne obtained her JD from Georgetown University Law Center.


Elise A. Fialkowski, Esq. Elise Fialkowski has practiced immigration law for more than 14 years and is a Partner

at Klasko, Rulon, Stock & Seltzer, LLP. Elise regularly assists U.S. and international corporate clients who seek to hire or transfer foreign employees as well as foreign individuals seeking employment in the United States including, for example, health care professionals, executives, managers, and scientists.

Elise has particular expertise in advising employers with regard to compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification and worksite enforcement issues. A member of the American Immigration Lawyers Association (AILA), Elise serves on the Executive Committee of its Philadelphia Chapter, the AILA E-Verify Liaison Committee and the Philadelphia USCIS Liaison Committee.

Elise also has particular expertise in the university setting. She represents a number of universities in connection with their student and intern programs and obtains work authorization and permanent residence for university employees. She also advises international students with regard to immigration options and employment following graduation as well as issues that may arise during their course of study and training.

A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B.A.1987), Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).


Richard R. Rulon, Esq.

Rich Rulon has been practicing immigration law for more than 30 years. Rich is a member of the American Immigration Lawyers Association (AILA), is a former Chair of AILA’s Philadelphia Chapter, has served on the Board of Governors of AILA and the Immigration Reform Committee. He has also served on the Board of Trustees of the American Immigration Law Foundation (AILF) including six years as Chairman and was the recipient of AILF’s 2005 Honorary Fellow Award for lifelong service to the field of immigration and nationality law.

Rich has been a lecturer at seminars on immigration law subjects and at AILA Annual Conferences; has authored numerous articles on immigration law topics and has played and continues to play an active role in helping to shape immigration reform legislation.

Rich was selected for inclusion in The Best Lawyers in America and also as a “Pennsylvania Super Lawyer.”

Rich is a graduate of the University of Pennsylvania Law School.


Immigration 2009:


Agenda

Introduction Service Center Report: Traversing Inland Waters Department of Labor Update: Temporary Programs Department of Labor Update: Permanent Programs Impact of Employer Cutbacks on Employers and

Employees


Worksite Enforcement Legislative Update: New Players, Same Game Questions & Answers Lunch Buffet

(cont’d)

Immigration 2009:


Agenda

Suzanne B. Seltzer, Esq.Suzanne B. Seltzer, Esq.Chair, AILA's Vermont Service Center Liaison CommitteeChair, AILA's Vermont Service Center Liaison Committee

Member, AILA's Service Center Operations CommitteeMember, AILA's Service Center Operations CommitteeNAFAS's Region X Regulatory OmbudsmanNAFAS's Region X Regulatory Ombudsman

Service Center ReportService Center Report Traversing Inland WatersTraversing Inland Waters


Charting a New Course

Transformation Online account based system IIN – “Immigration Identification Number” Move towards paperless system Move towards consolidated information

Knowledge management


Charting a New Course

Bispecialization 5 regional service centers

VSC/CSC – non immigrant petitions TSC/NSC – immigrant petitions NBC – family based petitions

Flexibility to transfer cases to center with most resources

(cont’d)


Service Centers Adrift

“Pilots” following their own course “The Plus” at TSC 90 day AOS at NBC (so no EAD/AP) Reliance on contractors


No Captain at the Helm

Transfer petitions between Service Centers – used to one standard, get another

New officersTraining issues Increase discretion; decrease supervisionDecrease in access – NCSC

FY 2010 H-1B Cap Issues


Heading into the Rocks

H-1B cap exemption“Affiliated” withEmployed “at”

L-1BFunctional managerSpecialized knowledge


Re-adjudication of established facts Less time to respond to Requests for

Evidence (RFE) Denials without RFEs

Heading into the Rocks(cont’d)


TIDE Is Out

EDGE-AACRO database for degree equivalency

Processing time reports Online Status


On the Horizon On the Horizon Related Issues at Department of State

Security Advisory Opinions (SAO)Visa Mantis – Technology Alert

4-6 weeks No inquiry before 90 days

PRC/Indian nationals Revised exchange visitor skills list

Department of Labor Update:Department of Labor Update: Temporary ProgramsTemporary Programs

William A. Stock, Esq.AILA DOL Liaison Committee


Introduction

New iCERT Portal – Mandatory for LCA filing H-1B “Dependence” Prevailing Wage Issues DOL Enforcement Procedures


The New DOL iCERT Portal for LCAs

Available April 15 for registration/filing Mandatory for LCA Filing after 5/15 Account-based system (like PERM) DOL Anticipates “Analyst Review” may take up

to 7 days provided in the statute


H-1B “Dependents Employers” Attestations

Also applies to TARP Funding Recipients and “Willful Violators;” may be expanded

Attestation 1: Recruitment of US workers and hire of any equally or better qualified US workers

Attestation 2: No layoff of US workers in the job within 90 days prior or 90 days after H-1B’s hire



Attestation 3: No placement of H-1B workers at another employer with a layoff of US workers in the job within 90 days prior or 90 days after the placement

Exempt H-1Bs: Extra attestations do not apply (except for TARP recipients) if the H-1B is paid over $60,000 or has a Master’s or higher degree

(cont’d)



TARP Recipients Covered: Any receipt of government financing aid for banks under authority of the Treasury or Federal Reserve

Recipients covered until they pay money back (according to the Fed) or until Feb. 2011

Includes many programs other than direct aid, including voluntary participation helping government purchase “toxic assets”

(cont’d)


Prevailing Wage Issues

SWA Wage Determinations Advantage: “Safe Harbor” Disadvantage: Binding on employer (no alternative)

Understanding the OES and Wage Leveling The Problem of Extensions and “Level I” Wages Understanding Geographic Coverage DOL Mandated survey methodology


DOL Enforcement Procedures Who Enforces: Wage and Hour Division What is Enforced: H-1B program, can also involve

overtime How Initiated: Employee Complaint, or USCIS

Referral Common Violations

“Initial Benching” after arrival “Benching” during employment Unauthorized Deductions Incorrect Terminations

William A. Stock, Esq.AILA DOL Liaison Committee

Department of Labor Update:Department of Labor Update: Permanent ProgramsPermanent Programs


Introduction

What’s New In Processing Time Audits and Their Results New iCERT Portal for PERM News from BALCA


What’s New In Processing Times

“No Audit” Cases from August 2008 Audited Cases from Summer 2007 Appeals from June 2007 BALCA Appeals: 6-12 months from time

they are received by BALCA (6-12 months for DOL to forward)


Audits and Their Results

The Nitpicking Continues – Technical Denials Abound

Industry Focused Audits Generic and Targeted Issues Audits

LayoffsRequirements Related

Good Faith Recruitment Tests


New iCERT Portal for PERM

System Registration for LCA and PERM More Detailed Questions on New ETA-9089

Multiple LocationsMultiple Alternative Requirements“Magic Language” check box

Number of employees in area for employment


News from BALCA Offering Substantive Review of “Gotcha”

DenialsLack of “Magic Language”Undated Signature

Generally Upholding Deadlines and Filing Procedures

Open to Reviewing Documentation Beyond the Audit File

Concerned with Due Process over “Efficiency”


Questions?Questions?

H. Ronald Klasko, Esq.

ImpactImpact of

Employer Cutbacks

on Employers and Employees


Termination or LayoffH-1B Employees

Employer actions Withdraw LCA Notify CIS Offer return costs of transportation

Employee airfare only Only if leaves U.S.? Employer options and strategies


Consequences to Employer of Failure to Take These Actions No “bona-fide termination” “Benching” – continuing wage obligation


(cont’d)


Consequences to Employee Out of status immediately Revocation of H-1B Loss of portability? Impact of severance pay Eligibility to extend status?


(cont’d)


TARP Recipient Employers Must be no U.S. workers “displaced” No layoff in “essentially equivalent job” 90 days before or after filing H-1B petition Same “area of employment”


(cont’d)


Termination or LayoffOther Nonimmigrant Employees

No penalty for failure to notify CIS No back pay issues Employee out of status OPT limited to 120 days of unemployment


Termination or LayoffLabor Certification Applications

Layoff of labor certification beneficiary Process terminates unless possible future

employment


Termination or LayoffLabor Certification Applications Layoff of U.S. Workers

No impact unless termination other than for cause Layoff of “potentially qualified” U.S. workers Layoff in related occupation

Majority of “essential duties”

Layoff in “area of intended employment” Layoff “within 6 months of filing”

Within 6 months before filing? Within 6 months after filing?

(cont’d)


Termination or LayoffLabor Certification Applications

Layoff of U.S. Workers Employer can still proceed with labor

certification, but must Notify laid off employees of job opening Consider their qualifications Document notification and consideration

Notify all and consider only those interested? Consider all and notify only potentially qualified?

(cont’d)


Leave of AbsenceH-1B Employees

Requested by employee No DOL/wage issues Employee status depends on “expectation of

continuing employment” Requested by employer

Continuing wage obligation – “benching”


Leave of AbsenceH-1B Employees

Consequences to Employee No regulation Does employer/employee relationship continue

to exist? Is there an expectation of continuing

employment?

(cont’d)


Leave of AbsenceOther Nonimmigrant Employees

Notify CIS? “Material change”? No penalty for failure to notify

Consequences to employee same as H-1B


Freeze

Impact on labor certification application? No specific rules “Good faith recruitment” Exceptions to hiring freeze


Reduction in Salary

H-1B employees Violation if below prevailing wage Violation if U.S. workers not reduced No violation if above prevailing wage and U.S.

workers reduced No new LCA required

Other nonimmigrant employees Issue of “material change”


Reduction in SalaryLabor Certification Applications

Can proceed if still offer prevailing wage when employee gets LPR

What if employer offers lower wage on I-140?


Can proceed if still offer full time when employee gets LPR

Issue of “good faith recruitment” for full-time position

Reduction in Hours Labor Certification Applications


Reduction In Benefits

H-1B Employees No impact if same reduction for U.S. workers

Other Nonimmigrant Employees Issue of “material change”

Labor Certification Application No impact if same reduction for U.S. workers


Reduction in Salary or Benefits Consequences to Employee

No definitive USCIS opinion Strong basis for position that no impact on

employee’s status


Questions?Questions?

Elise A. Fialkowski, Esq.

Worksite Worksite EnforcementEnforcement


Overview

Enforcement in a New Administration I-9 and H-1B enforcement State & Local Laws E-Verify Rule for Federal Contractors Practical E-Verify Compliance Considerations Electronic I-9 programs


Enforcement in a New Administration

I-9 Compliance - unauthorized workers Raid v. audit/investigation Focus on Employers Pledge to continue active criminal prosecution

of employers Pledge to issue detailed investigation protocols Support E-Verify/system improvements


Enforcement in a New Administration

H-1B/LCA Compliance Pledge to aggressively enforce “wage theft” Substantial increase in investigative staff Expect even greater number of

audits/investigations “Fraud” profile/criminal enforcement

(cont’d)


Impact of State and Local Laws Expect continued State legislation targeting

unauthorized employment As of June 30, 2008 1404 immigration related

bills introduced in the states Companies that knowingly hire unauthorized

workers may face: Loss of business licenses Loss of government grants and contracts


Impact of State and Local Laws

State E-Verify Laws E-Verify Required by all employers: AZ, MS, SC* Contractors: CO, GA, MN, MS, MO, NE, OK, RI, SC, UT

Public employers: AZ, GA, MN, MS, MO, NC, NE, OK, RI, SC, UT

Note: ongoing litigation/injunctions

(cont’d)


E-Verify Rule for Federal Contractors - Overview Amends FAR to implement Executive Order requiring federal

contractors to use E-Verify Final rule effective date postponed to May 21, 2009 Contracts must contain the “E-Verify clause”/be modified to

contain Requires E-Verify query of

All new employees All existing employees assigned to the contract Or 180 day option for all existing employees University option: new hires and existing employees assigned to

contract


E-Verify Rule for Federal Contractors - Timeline

Applies only to Qualifying contracts issued after 5/21/09 IDIQ contracts w/6 month & substantial

performance after 5/21/09 Enroll in E-Verify within 30 days of contract

award 90 day phase-in for E-Verify queries


Federal Contracts & Subcontracts Subject to the Rule

Only Prime Acquisition Contracts subject to FAR with Period of performance longer than 120 days AND Value above $100,000 prime acquisition

threshold


Federal Contracts & Subcontracts Subject to the Rule Excluded:

Contracts for COTS items (or minor modif. To COTS) and related services

Grants Cooperative agreements Contracts where all work performed outside US Contracts not meeting 120 day or $100,000 req. Unmodified contracts existing prior to 1/15/09

(cont’d)


Federal Contracts & Subcontracts Subject to the Rule

Subcontracts Must flow from the prime contract with E-Verify

clause Only for

Subcontracts for Services or Construction With a value over $3,000

(cont’d)


Brief Overview

Web-based system checks I-9 information against social security and DHS databases

Requires Employer to agree to MOU w/significant obligations

Not an I-9 substitute Queries must be conducted within 3 days after hire Employer reluctance -100,000 users as of Jan. 09 New developments/improvements


Practical .

Compliance Considerations Audit of older I-9s I-9 issues with existing employees under

Federal Contractor Rule Who conducts queries I-9 and E-Verify policies Training Electronic I-9 program


Electronic I-9 Program

Many providers, most link to E-Verify system Some providers act as E-Verify Designated Agents Others link to system but allow company to control

E-Verify query such as Immigration Tracker I-9 Web-based v. software

USCIS reports they are developing their own Electronic I-9



Benefits vary depending upon provider and functionality of program

Time-saving: data does not have to be reentered for E-Verify Alerts as to missing fields, inconsistent information and dates Tickler system for reverification Links to HR system Tools to easily purge I-9s consistent with retention

requirements Paperless “green option” — electronic signature, electronic

retention and scanning

(cont’d)



Help features/pop-ups to assist with process/explain documents

Reminder emails to designated HR staff Customization-configured to company’s business

processes Immediate updates with changes in Forms/policy Support for program/E-Verify

(cont’d)

Richard R. Rulon, Esq.

New Players,Same Game


Recent Developments

Small Extensions of Expiring ProgramsEB-5E-VerifyReligious WorkersPhysician Waivers

Restrictionist Amendment to StimulusTARP recipients restricted from hiring H’s


Prospects for Comprehensive Immigration Reform

Most Members still in favor of comprehensive, not piecemeal, reforms

House will likely take leadership on issue from Senate

Obama administration committed to CIR and building public support

Restrictionist/Populist Reaction likely to be strong again

Considered by Fall 2009?


Speaker Contact Information

H. Ronald Klasko, Esq. Tele: 215.825.8608 Fax: 215.825.8699 E-mail: [email protected]

William A. Stock, Esq. Tele: 215.825.8607 Fax: 215.825.8699 E-mail: [email protected]

cont’d…



Suzanne B. Seltzer, Esq. Tele: 212.796.8846 Fax: 212.297.1799 E-mail: [email protected]

Elise A. Fialkowski, Esq. Tele: 215.825.8647 Fax: 215.825.8699 E-mail: [email protected]

cont’d…



Richard R. Rulon, Esq. Tele: 215.825.8612 Fax: 215.825.8699 E-mail: [email protected]

Visit us online at www.klaskolaw.com


Please join us for lunch

Thank youThank you for attending

W w w. k l a s k o l a w. c o m. Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron...

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