In This Issue

• Article One - Immigration Reform
• Article Two - Employer Compliance Alerts and Updates
• Article Three - Immigration News
• Article Four - Healthcare News
• Article Five - InFOCUS for Innovative Leaders

USCIS Leaked Memo Presents Alternatives to Immigration Reform

The Obama Administration is considering ways that it could act without Congressional approval  – some options to provide immigration relief, should comprehensive immigration reform legislation not pass.

In an internal memo to Alejandro N. Mayorkas, the Director of USCIS, from the Offices of Chief Counsel and Policy and Strategy lay out some suggestions that USCIS might undertake within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

• Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.
• Expand the ‘dual intent” doctrine to non-immigrants such as TN’s, F-1, O and P and E visa holders. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.
• Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories. This would be especially helpful for H-1B applicants who wish to do an H-1B transfer if they lose a job and soon find a new job.  Current law holds the person to be “out of status” and subjects the H-1B applicant to returning to their home country to get a new visa stamped.
• Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.
• Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.
• Utilize deferred inspection to applicants whose removal is not in the public interest. This allows a “stay” in the U.S. to buy time for the applicant to have some form of legislative relief in the future.
• Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy. Extend work authorization on EADs when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

USCIS believes these administrative options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet whether USCIS will implement these suggestions.

Supporters of comprehensive immigration reform are certain to welcome any effort by the Obama administration to unilaterally open pathways to citizenship for many currently in the country illegally. But the draft is also sure to outrage immigration-restriction groups. Christopher Bentley, a USCIS spokesperson, said that internal memos help the agency “do the thinking that leads to important changes; some of them are adopted and others are rejected” and that “nobody should mistake deliberation and exchange of ideas for final decisions.”

Be assured that we will report on any forward movement concerning the above administrative policy changes and continue to keep you informed.

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Increased Government Compliance Enforcement

More recently, hospitality employers have been identified as a target of increased government compliance enforcement. DHS will continue to increase I-9 audits for all employers and confirmed that its 5-year plan includes creating a “culture of employer compliance through aggressive civil and criminal enforcement”.

It’s been reported by AH&LA, The American Hotel & Lodging Association that the Department of Labor Wage and Hour Division (WHD) is planning an initiative to target every hotel, motel and resort in the USA. This new initiative seems to convey a significant ad heightened level of commitment to enforcement.

We can’t say enough about how important it is to prepare! Numerous reports confirm DHS’ I-9 and E-Verify enforcement initiatives, and recent DOL statements show a focus on hospitality employers. Many predict that audits and other enforcement activities will begin in earnest after October 1at, the start of the government’s fiscal year. Employers still have time to review records, policies and procedures to prepare and limit potential liability. It is expected that DOL will audit employers for compliance with all labor laws and review all employers at a particular property. It is recommended that employers define and develop an H-2B policy for all their financial dealings with the employees such as deductions for housing and employee expenses incurred to relocate to the jobsite location.

It is also important to review agreements with staffing and recruiting agencies to discern if they are charging any fees to the H-2B worker. Lastly, in situations where a staffing agency is acting as the employer, it is important to know that the end user of the H-2B worker’s services could well be charged with employer responsibilities and liability.

ICE has overall committed to hiring more auditors to conduct I-9 audits in its 2010-2014 Strategic Plan and will undoubtedly surpass the some 2,000 audits that were conducted in the last 12 months.

We would urge all employers to prepare to do the following in the next few months:

• Hire a skilled immigration law firm that specializes in employer compliance issues to conduct a partial or full audit of your I-9’s to include a review of the handling of your Social Security No-Match inquiries
• Make sure you have I-9s for all employees and correct all errors recommended from the audit
• Train your staff in the proper management, monitoring and procedures of your I-9 program
• Document your immigration compliance policies in a simple I-9 Manual
• If you have an I-9 electronic vendor, make sure that they provide comprehensive training to your staff with reliable and timely customer support

Certain federal contractors are required to use E-Verify. The contract will reflect the E-Verify requirement. Be sure to review any federal or state government contract to ascertain if it requires the contractor to use E-Verify. It’s important that if you enroll in E-Verify, that you use the system properly as users are being monitored for compliance and information may be shared with other government agencies. Make sure that your I-9 or E-Verify vendor provides comprehensive training to those staff members charged with the I-9 and E-Verify on-boarding process at your place of employment.

Immigration Compliance Group has an active employer compliance practice with a very efficient and highly trained team. We link to our services and solutions here

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I-9 Electronic Regulation Finalized

DHS finalized a regulation that provides greater flexibility for employers to electronically sign and store I-9 forms, which are used by U.S. Immigration and Customs Enforcement (ICE) to verify employment eligibility-eliminating the need for paper filing and streamlining efforts to ensure a legal workforce nationwide.

Employers—who complete and retain the Form I-9 (Employment Eligibility Verification)—may sign the form electronically and retain the form in an electronic format. More in the final rule:

1. DHS will allow competing paper and electronic systems:  This clarifies that an employer moving to an electronic system need not create digital images/data related to historical paper forms. However, from some employer’s perspective monitoring two distinct verification systems for compliance may be too difficult a logistical challenge. These particular employers have elected to go entirely electronic to take advantage of the ability to monitor compliance and provide for electronic reminders. We strongly recommend that employers should continue to approach converting paper I-9s to electronic images very carefully, first discussing the benefits as well as the concerns (in particular audit related and privilege issues) with their immigration attorneys.

2. The final rule reaffirms that employers will not be required to use a specific technology to complete and store I-9 information, so long as the system they use ensures accessibility and they are able to produce a reasonable facsimile or copy of the I-9.

3. The final rule will also relax the audit trail requirement from the interim rule so that employers no longer have to keep records of when the information is accessed or viewed. Instead, an audit trail will only need to include information on the initial completion and any subsequent modification to the I-9.

4. The final rule will also relax the interim rule’s requirement to provide a transaction record to the employee at the time the electronic I-9 is created. Under the rule to be published tomorrow, the employer may “provide or transmit a confirmation of the transaction only if an employee requests it . . . within a reasonable period of time.” Finally, the final rule will remove the mandate that the electronic storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”

5. Indexing does not require all fields:   The final rule identifies that not all of the “data element(s)” must be searchable, but that the system must provide a sense of “search ability” consistent with the amended 8 CFR Sec. 274a.2(e)(6).

More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9. For further guidance on the electronic signing and storage of the I-9, and the changes to the current regulations to assist businesses in complying with the requirements of the law, please visit www.ice.gov or view the Federal Register at www.gpoaccess.gov.

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Department of Justice Files Lawsuit against Georgia Employer for Employment Discrimination; OSC Settles with Macy’s Over Erroneous Dismissal of Employee with Expired Greencard. We link to one press release on both of these issues here.

USCIS Issues Guidance on Determining the Hire Date for E-Verify

Immigration Raid at Fullerton, CA Factory Leads to 43 Arrests and Temporary Shutdown of Factory

According to ICE’s search warrant, agents were looking for job applications, employment verification forms, immigration documents and correspondence from the Social Security Administration regarding the use of Social Security numbers that didn't match the employees' names. In addition, agents were searching for documents related to the company's reporting of wages and taxes paid and documents that showed any cash payments to employees. For more

ICE Cracks Down on Texas: 2 Dozen Companies Face up to $600K in Fines since October

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Judge Blocks AZ Law

On July 28th, a federal judge blocked the most controversial parts of Arizona’s immigration law from taking effect, delivering a last-minute victory to opponents of the crackdown.  The judge also put on hold parts of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places.  We link here and here for more on the story.

If Arizona was on the Potomac

USCIS Announces first 10 Areas of Focus for Agency-wide Policy Review

USCIS Releases Policy Guidance Memo on O-1 Visas with regard to gaps between 2 or more events in the work itinerary

USCIS to Accept Certain Email Inquiries

Customers will now be able to submit an electronic inquiry directly to a USCIS Field Office or Service Center to request case status information if their Application to Replace Permanent Resident Card (Form I-90) or Application for Naturalization (Form N-400) is outside the posted processing times.

The Big Question: Should the 14th Amendment be Changed to Address Immigration Concerns?

Fact Sheet on the DREAM ACT

The DREAM Act addresses the plight of young undocumented immigrants growing up in the United States who wish to go to college and obtain lawful employment. There are approximately 1.5 million undocumented children in the United States, and each year tens of thousands graduate from primary or secondary school, often at the top of their classes. The bill allows current, former, and future undocumented high-school graduates and GED recipients a pathway to U.S. citizenship through college or the armed services.

DOL Releases Round 11 of PERM FAQs on August 3, 2010

New Wages Released by DOL

DOL releases July 1st of every year through the Foreign Labor Certification Data Center updated Prevailing Wages (PW). Some wages increase, and some decrease. The PWs impact future Green Card Applications (PERM Labor Certification), H-2B, H-1B, H-1B1, and E-3 Australian immigration benefits.

The PW reflects the minimum wage that an employer must meet for the above-mentioned visa classifications. Generally, when filing for extensions of stay, prevailing wages fluctuate. For new green card cases just getting started, employers should make sure that their labor certification postings and advertising processes reflect these increased wages, unless a PW determination was rendered prior to 7/1/2010. Failure to make these adjustments can cause fatal mistakes in the process.

“How do I” Guides for Employers

The Daily Snapshot

Interested in the comings and goings of President Obama? Here’s his daily calendar

New Publications of Interest

Characteristics of H-1B specialty occupation workers: U.S. Citizenship and Immigration Services have released "Characteristics of H-1B Specialty Occupation Workers" for fiscal year (FY) 2009.

Guide to InfoPass.  InfoPass is a free online appointment-scheduling service of U.S. Citizenship and Immigration Services (USCIS).  The agency has released a guide with tips on using the service.

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Foreign RN’s in California

It’s been reported that The California Board of Nursing is providing limited relief for foreign nurses who are affected by the recent change of the licensure requirement in California.

The changes put into effect by the CA Board on April 26, 2010 made two changes that impacts foreign nurses. The changes affect applicants who are filing initial applications for licensure and RNs who have pending applications.

1. Initial Application: the CA Board will no longer accept an application for licensure by examination or endorsement unless the applicant has a U.S. Social Security Number. Previously the BRN would accept the application and issue an ATT (authorization to test for the NCLEX) and then hold the file until the applicant obtained a social security number. Now, the board will not accept an initial application without a social security number.
2. Pending Application: the CA Board will no longer provide extensions of file abandonment. Previously, they permitted a three-year period for the applicant to submit the social security number but the applicant could also request an extension of that time by providing proof that visa delays, etc. were delaying the issuance of the social security number. Now, they will not allow any extensions.

However, for those applicants affected by #2 above (file currently in process at the CA Board and subject to abandonment) the Board has announced a few options:

• Once the SSN is obtained, the applicant can re-apply to the CA Board by simply submitting a new Application Fee Schedule, transcript and fingerprint card but will not need to re-test.
• The applicant may request the CA Board to provide the NCLEX test results to another U.S. state (such as one that does not require a social security number). This requires a $10 processing fee. If an applicant needs the CA Board to provide the NCLEX-RN test scores to ICHP (CGFNS) for the VisaScreen, they will do so for a fee of $60.

News FLASH: FSBPT Suspends PT Exam for Graduates of Overseas Programs

US News – Best Hospital Rankings

Out of 4,852 hospitals nationally, 152 were ranked in one or more of 16 specialties.

CGFNS Encourages Applicants to File Online

CGFNS recently announced that paper applications will incur an additional $75 charge. In order to avoid the charge, applicants are encouraged to file their Applications on-line at CGFNS Connect.

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We found this video quite thought provoking and highly recommend it. It’s from a TED talk by Simon Sinek, the author of the book “Start with Why”. Tell us what you think about it.

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What can Immigration Compliance Group do for your organization?

We can consult with you to determine that the nature of the position and the prospective employee’s background are appropriate for an H-1B or any other nonimmigrant visa (O or P visas, TN, L-1A or L-1B, E visas, etc.). We can also process green-card cases for your employees if you are interested in obtaining legal permanent residency for them. We can advise both the employer and prospective employee regarding documentation requirements as well as legal issues, and will make recommendations on the most appropriate process for your company to pursue. We will handle the entire process for you with some of the industry’s best and most experienced licensed immigration attorneys and case managers. Our clients know that our flexibility at designing and personalizing a business model unique to them and their needs that impacts their ability to grow and develop their business, sets us apart from other business immigration service providers.

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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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Copyright © 2011 Immigration Compliance Group.