If you are leaving the United States for an emergency, aliens should make sure if they require a travel document to reenter the country or whether their departure will affect their current benefits application.

As a general rule, any person who is not a U.S. citizen or a non-citizen U.S. national is subject to immigration inspection each time the person travels to the United States from any place outside the United States. Even an alien who has already been admitted as a lawful permanent resident (LPR) is subject to immigration inspection, if the alien has been absent from the United States for more than 180 days, or if the alien has engaged in certain conduct that makes the alien inadmissible, such as the commission of certain crimes, attempting to return without inspection, or other reasons. If an alien who is subject to immigration inspection is determined to be inadmissible, the alien may be denied admission and, if necessary, may be ordered removed from the United States.

An alien who is seeking admission or parole at a port of entry generally must have in his or her possession, and must present to the inspector at the port of entry, a valid and unexpired travel document. Depending on the person’s immigration status or if the person has an application for an immigration benefit pending, several types of travel documents are required if aliens (including legal permanent residents) wish to return to the United States lawfully after travel abroad.

The following sections discuss reentry permits, advance parole documents, and refugee travel documents. To apply for any of these travel documents, use Form I-131. For further information on the purpose of these documents and eligibility requirements, please refer to 8 CFR.223.1.

For more information on the emergency travel update:
Read this press release from USCIS

By Thomas J. Joy
Attorney at Law

Immigration Solutions has been recently inundated in regard to questions pertaining to cap exempt H-1B employment from its clients and readership. As a result of this, we’ve decided to address your questions with the writing of this article. We trust that you will find it useful and informative.

Are you an employer or staffing company searching for a way to solve the H-1B cap (quota) problem? At the present time, due to quota limitations and more demand than supply, you are restricted to filing in early April for H-1B visas for your critical H-1B professional employees who, if they win an H-1B visa in the lottery, can not start employment until the following October 1st, at the earliest. This unavailability and timing problem makes it very difficult to plan for the employment of H-1B workers.

If the petitioning employer is an institution of higher education or a related or affiliated nonprofit entity or a nonprofit or government research organization, then the H-1B cap does not apply. What is generally not widely known is that the United States Citizenship and Immigration Services (“USCIS”) has interpreted the cap exemption in such a manner that widens the scope of the cap exemption. Specifically, USCIS will allow, subject to certain restrictions, an employer who is not cap exempt to petition for its H-1B employees who will perform their duties at a cap exempt institution. Such employers are known as third party petitioners. The intent of Congress was to ensure that qualifying cap exempt institutions have a continuous supply of H-1B workers without quota limits.

Pursuant to the broader interpretation, the USCIS will allow third party petitioning employers to claim the cap exemption for their H-1B employees if the employees will perform job duties at a qualifying cap exempt institution that directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the institution, namely, higher education or nonprofit or government research. If the petitioning employer is not itself a qualifying cap exempt institution, the burden is on the petitioning employer to establish a logical nexus between the work performed predominately by the employee and the normal, primary or essential work performed by the qualifying institution. Essentially, the third party employer’s employee would be cap exempt if he was performing duties that would or could otherwise be performed by employees of the qualifying cap exempt institution in furtherance of the qualifying institution’s primary mission.

It should be noted that it must still be proven that the job offered is a specialty occupation in order to qualify for an H-1B, i.e., the position requires a minimum of a 4 year baccalaureate degree or the equivalent. This will be an issue for registered nurses since the USCIS takes the stance that the position of registered nurse generally does not require a 4 year baccalaureate degree. Registered nurses in more complex positions may be able to qualify.

In summary, cap exempt status, whether it is by working for a cap exempt employer or for a third party employer at a cap exempt institution, provides the advantage of filing at any time without regard to the quota and affords much more flexibility for planning and staffing purposes.

When John McCain was championing for immigration reform in 2007, never did he think it would place him in the position he is in today.

With only 21 days left until the 2008 Presidential Election, John McCain is positioning himself to lose the Hispanic vote by a landslide margin, well below President George W. Bush’s 2004 performance.

Polls have positioned Senator Obama winning the most amount of Latino voters of any Democrat in more than a decade, while McCain is sitting at a dismal 30 percent, closer to Senator Bob Dole’s horrid 1996 result than to Bush’s historic 40% four years ago.

McCain is carrying quite a bit of baggage on both arms, as he appears to be getting no credit from Latino voters for his past support for immigration reform, while in the other hand he treads slowly with the built up hostility of the Republican Party’s take on illegal immigration.

And his attacks on Obama for immigration reform have been non-existent, who was once thought to have taken a lethally liberal stance by supporting granting driver’s licenses to illegal immigrants.

And as the four states with the largest Hispanic populations take center stage, Florida, Colorado, Nevada, and New Mexico, what was once a ray of hope for Senator McCain has emerged as a clear weakness.

For more information on McCain’s cold shoulder turn to Hispanics:

Read this article by Ben Smith from Politico.com

In this climate of immigration retrogression, it was recommended that California NCLEX nurses endorse to Vermont prior to the expiration of the 3-year window of opportunity to provide SSA numbers to The CA State Board of Nursing. The VT State Board reports that it has experienced an increase in endorsement requests as a result of this issue, leading them to review their policy and make some procedural changes, as follows:

1. VT requires the official NCLEX exam results. For example if you took the exam through CA; you will need to contact the California Board of Nursing and request a “Certified Copy of Test Results with Photo” to be sent to the State of Vermont Board of Nursing. California’s fee for this is $10.00. (If you’ve already completed this step please proceed to step 2)
2. VT will need to have the Verification of Education Form completed by your school and your official transcripts sent to them. You can print the verification of education form from their website www.vtprofessionals.org on pages 5 and 6 of the International Nurse Application.
3. VT requires the License Verification Form completed for your original nursing license and your most current nursing license. You can print this form from their website www.vtprofessionals.org on page 7 of the International Nurse Application.

Note: For nurses in the United Kingdom: VT can verify the license online. You need to fill out the Verification Form by putting in the caller code and pin number so that they can access your information from the NMC website.

Once VT receives this information, they will then be able to process your application for licensure through the state of Vermont.

As mentioned previously, please be aware when you start the re-endorsement process, that the CA Board of Nursing will have considered your application abandoned and your file will no longer be active.  Thus, it will be necessary for you to submit all educational credentials a second time to CA.  While it will be inconvenient to do so, it will protect you from having to re-take the NCLEX-RN exam.

The Sanctuary, a pro-immigrant and civil liberties group, asked the presidential candidates, Barack Obama and John McCain, to complete a questionnaire that featured a number of immigrant-related questions.

Senator McCain has yet to send his response, but Senator Obama has answered the survey with some informative answers to his plans for immigration reform.

The questionnaire is featured below:

CANDIDATE QUESTIONNAIRE
Name: Barack Obama
Party Affiliation: Democrat
Address: xxxxxxx Chicago, IL 60601
Home Phone:
Campaign Phone Office: xxx-xxx-xxxx
Office Sought/Opponents in:

If you are a State candidate, please indicate your State Registration Number:
The Sanctuary is a multi-issue organization working in the service of human rights, human reasoning
and progressive discussion. Therefore it is critical for us to understand your position on the following
issues.

Please give specific answers to the questions and answer them as thoroughly as possible. Please type
your answers. Use additional sheets as necessary.

1. Could you please articulate what you think are the most pressing issues for the U.S. immigrant
community, at home AND abroad, and how you would hope to address those issues as President?

At home, the immigrant community faces a real challenge from the tension our inability to fix
our immigration system has engendered. Abroad, not enough is being done to encourage job
creation and economic development and to decrease the pressure to immigrate without
authorization to the U.S. in search of work.

2. Do you support comprehensive immigration reform?

Yes.

3. What policy conditions would comprehensive immigration reform have to meet in order for you to
support it? Please be specific?

I fought in the U.S. Senate for comprehensive immigration reform. And I will make it a top
priority in my first year as president. Not just because we need to secure our borders and get
control of who comes into our country. And not just because we have to crack down on
employers abusing undocumented immigrants. But because we have to finally bring the 12
million undocumented out of the shadows.

We should require them to pay a fine, learn English, abide by the law, and go to the back of the
line for citizenship – behind those who came here legally. But we cannot – and should not –
deport 12 million people. That would turn American into something we’re not; something we
don’t want to be.

(more…)

The E-Verify program is now at a 99.5 percent accuracy rate, according to a new paper by the Center for Immigration Studies.  The program allows employers to check the immigration status of new employees.  This voluntary program has already screened more than one in 10 new hires nationwide – and has processed more than 6.21 million queries to date.

Although E-Verify is set to expire on Nov. 30, 2008; unless it is re-authorized by Congress, the House of Representatives has already passed a reauthorization bill, and waiting on the Senate to take action.

The Center for Immigration Studies produced a thorough evaluation in a report entitled “If It’s Fixed, Don’t Break It: Moving Forward with E-Verify”.  The report covers a variety of topics in the E-Verify debate, including statistics regarding usage, cost and effectiveness, legislative history, executive orders affecting the program, the relationship of E-Verify to worksite enforcement, and past improvements to the program as well as future goals.

This report is available online, and can be found at CIS.org

The U.S. Citizenship and Immigration Services (USCIS) recently completed a multi-year redesign of the naturalization test. This newly revised test will help encourage citizenship applicants to learn and identify with the basic values Americans share. The test will emphasize the fundamental concepts of American democracy and the rights and responsibilities of citizenship.

The redesign process is to ensure that the applicants have a meaningful understanding of the U.S. government and its history. The redesigned test will serve as an important instrument to encourage civic learning and patriotism.

Some new sections of the test that have been overhauled is the English reading and writing section, as well as new history and government questions – now testing in ten sites across the country. The redesigned test was introduced on September 27, 2007. Naturalization applicants will begin taking the revised test on October 1, 2008.

To find out more about what test you might take:
Read this article from the USCIS

Immigration Solutions is pleased to announce its new package of Employer Compliance Solutions and Services

Why wait until —

• The government notifies your company that it is to produce all of its I-9 forms and related documents for audit …
• Or, the government notifies your company that it is to produce all of its H-1B public access files and related documents for audit …
• Or, your company receives a Social Security No-Match Letter,

Consider the following:

Hiring managers and human resource professionals know the value of degreed skilled worker foreign nationals, especially in the science, technology, engineering and healthcare occupations.  As the workforce becomes more global in scope, employers are increasingly learning that it is essential to understand and effectively adhere to immigration compliance laws and regulations.

The trend toward increased scrutiny of immigration employment practices will likely continue in the foreseeable future. So for now, it’s imperative that employers place their attention on several important areas that require knowledge, training and compliance:

I-9 Employment Eligibility Verification Form. The mechanism for employment verification compliance is the I-9 Employment Verification Form which every worker must complete on the day of hire or earlier.

The employee must complete the first section of the I-9 form and must provide the required supporting documents within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together).

SSN No-Match Letters. A Social Security “no-match letter” is a notice sent by the Social Security Administration (“SSA”) to employers and employees to inform them that the employee name or Social Security number listed on an employee’s W-2 does not match the SSA records.

The no-match letter is not a notice that the employer or employee has done anything wrong. SSA mismatches may have many root causes, including failure to inform the SSA that a name change has occurred, typographical errors, an error within the SSA database, and individuals who present false social security numbers or use another person’s social security number when completing hiring paperwork.

E-Verify. E-Verify is an Internet-based system operated by the DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify virtually eliminates SSA mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S. employers maintain a legal workforce. E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

H-1B / LCA Compliance. The American Competitiveness and Workforce Improvement Act (“ACWIA”) requires all employers that employ foreign workers in H-1B nonimmigrant visa status, to post an approved Labor Condition Application (“LCA”) for ten days in two “conspicuous” locations at the worksite where the H-1B worker will be employed. The employer must attest that the wage offered to the applicant is at least as high as that paid by the employer to current employees for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer’s premises; and that the notice of the LCA has been given to current employees.

Additionally, employers which employ foreign workers in H-1B nonimmigrant visa status are also required to maintain a “public access file” containing certain information regarding the employee’s wages and the employer’s compliance with the LCA. Maintaining a public access file is an integral part of complying with H-1B laws.

Pre-Merger & Acquisition Due Diligence. While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed
I-9s for an acquired company invalid.  If the acquiring company does not assume all the assets and liabilities, then the I-9s will likely not transfer.

In a merger case where the acquiring entity is a successor-in-interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure the acquired I-9s are in good shape.

Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand.

…

Immigration Solutions works proactively with its clients to provide comprehensive assistance in developing and maintaining best practices necessary to assure compliance with USCIS, SSA and DOL regulations.

Employer compliance is becoming more complex and enforcement (investigations and audits) is increasing. In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program.

Immigration Solutions will customize such a program for you and will provide onsite or telephonic training, consulting, and document auditing in all of the areas mentioned above, as well as provide ongoing compliance updates. For more information on our services, please contact us at info@immigrationsolution.net

By Thomas J. Joy, Esq.

The national elections in November 2008 will result in a new President.  In addition, all of the seats in the House of Representatives and one-third of the seats in the Senate will be contested.  The focus is understandably on the race for President.  However, the elections in the House of Representatives and the Senate are just as important, if not more so, when considering the controversial issue of immigration.  As a general constitutional principle, neither the President nor the Congress can create new laws on their own.  Each needs the other in order for new laws involving controversial issues to be enacted.

At first glance on the major immigration issues being debated in the election, Barack Obama, the candidate of the Democratic Party, and John McCain, the candidate of the Republican Party, would seem to agree.  Both support securing the borders of the United States from illegal immigration.  Both support bringing the illegal immigrants already in the United States out of the shadows and into the mainstream.  Both support the implementation of an electronic employment eligibility verification system and enforcement against employers who hire illegal workers.  Both support reform of the immigration system to fill needed jobs in the United States while at the same time protecting the American labor market.  Finally, both support the need to reunite families.

Upon closer inspection, however, one can clearly see major differences in degree in their positions on the various issues.  Their political party affiliation has a major influence on how serious and committed they can and will be on the issues.  As members of the Senate, both supported the failed comprehensive immigration reform efforts in the recent past.  John McCain, however, has alienated the conservatives within the Republican Party for having co-sponsored a comprehensive immigration reform law with leading Democratic Party liberal Senator Edward Kennedy.

As a result of the conflict within his own party, John McCain has moved more to a “secure the borders first” position and away from a strong position on comprehensive immigration reform.  On the other hand, Barack Obama, while articulating a strong support for comprehensive immigration reform, must deal with a key group of conservative Democrats who tend to vote with the enforcement oriented Republicans on immigration issues.  At the far end of the Democratic Party spectrum are those few who want to focus only on legalization (otherwise called amnesty by some).  At the far end of the Republican spectrum are those few who want to change the 14th Amendment of the Constitution to deny United States citizenship to children born in the United States to illegal alien parents.

Meanwhile, there is presently proposed bipartisan legislation pending in Congress to increase the quotas for employment based immigrants and also to provide more immigrant visas in the healthcare industry.  If these proposed laws do not become law this year, they will almost certainly be reintroduced early in 2009 when the new President and Congress take office.

In summary, we must take a wait and see position concerning how successfully the new President will be able to bring together the different factions in his own party and work together with the other party to structure and pass a comprehensive immigration law.

Both of these bills passed the sub-committee “mark-up” stage in the House Subcommittee last week – a 7:2 vote for H.R. 5924, and 8:1 for H.R. 5882.

This is an important first step forward that will be revisited by Congress following the 5-week “August Recess”. HR 5882 could recapture close to 500,000 green-cards that were lost due to bureaucratic delays for all employment-based categories which would moreover make them current. Family based categories would move forward considerably. HR 5924 would provide 20,000 green-cards per year to RNs and PTs, exempting from the quota dependent family members. We link to the bills below as well as information concerning how a bill becomes a law.

Make sure to sign up for our 8/13/08 teleconference on “Pending Legislation and Retrogression: Strategies and Solutions”. Sign up here!

• HR 5882
• HR 5924
• How a Bill becomes a Law