Welcome to our January 2011 immigration newsletter. For those of you who are new readers -- At Immigration Compliance Group...
- We provide US and Canadian immigration services for business and individual related immigration matters…
- We take great pride in partnering with our clients to create compliant workforces…
- We are unique, in that 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.
1. What’s new with Employer Compliance?
USCIS has released a revised January 5, 2011 version of the I-9 Employer Handbook.
Our office received an emailed Press Release from USCIS Director Alejandro N. Mayorkas announcing the release of the Handbook that is published in cooperation with the Department of Homeland Security partners. The Handbook, originally drafted in 1987, increases in volume and complexity every year, and it’s now some 70 pages in length - and we have therefore voted it the world’s most complicated form!
The Handbook, referred to as the M-274, provides guidance to employers concerning the issues that arise during the processing and management of the I-9 form.
USCIS Director Mayorkas has this to say about the new Handbook:
“By law, U.S. employers must verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status. To comply with the law, employers must complete Form I-9, Employment Eligibility Verification. The Handbook for Employers is a guide for employers in the Form I-9 process.
It has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions. We thank the many stakeholders who have provided comments on the Form I-9 process and the Handbook since the Handbook was last revised (Rev. 7/31/2009).
Some of the many improvements, new sections, and tools included in The Handbook for Employers are:
New visual aids for completing Form I-9
Examples of new relevant USCIS documents
Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students
Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and
Expanded guidance on extensions of stay for employees with temporary employment authorization
Should you have questions following the reading and review of the new Handbook, please contact our compliance team at Immigration Solutions. Should you require compliance services and solutions, our talented team is ready to assist you.
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A Practical I-9 Compliance Strategy
It can be difficult for employers to keep up with the ever-changing world of employment laws and compliance issues. Even if you have a fully staffed HR department, many points can go overlooked, such as handling I-9 compliance issues, which end up being bumped for more pressing needs.
The Truth: If you keep putting off an I-9 audit, you could most certainly find yourself in the middle of a complex investigation or lawsuit some day that will take center stage very quickly, that could have all been avoided with some basic preventive maintenance.
The Solution: One of the most cost-effective and convenient ways to put an end to the worry and chaos is to schedule a partial I-9 audit of 10% of your workforce to see what’s buried in your paperwork – and then train your staff on the most prevalent errors and document issues. This can easily be accomplished both onsite or offsite.
Contact Us: Don’t let the walls collapse around you! You never know when that certain phone call or letter will show up informing your organization you are in violation of employer compliance practices. Get prepared and organized and contact Immigration Compliance Group.
Please review our services and solutions and our I-9 employer resource center
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Misclassification of Independent Contractors
FedEx Corp. will pay the state of Montana a $2.3 million settlement over misclassification of Ground drivers as independent contractors, Montana Attorney General Steve Bullock announced.
The settlement follows a year-long investigation by Montana that found FedEx Ground drivers are employees, not independent contractors, and that FedEx owed unemployment taxes, penalties and interest, FedEx Corp. will pay the state of Montana a $2.3 million settlement over misclassification of according to the attorney general’s office.
Montana will reimburse drivers $1.1 million for unemployment insurance coverage that was paid by them. The remaining $1.2 million will go to the state’s general fund.
FedEx did not admit wrong doing in the settlement.
“As a result of the investigation, FedEx will change its business practices in Montana,” according to the attorney general’s office. FedEx Ground will “implement a new pickup and delivery model in Montana,” the office reported.
What does this mean for employers? Although you are not required to fill out I-9 forms for independent contractors or their employees, you must not knowingly use contract labor to circumvent the law against hiring unauthorized aliens.
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2. What’s New in Immigration
USCIS Revises I-129 Petition Form; Imposes New Export Control Certification
U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Petition for a Nonimmigrant Worker (Form I-129) which also includes the new fee increase information.
Effective February 20, 2011, the revised I-129 form requires employers who are sponsoring foreign nationals for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. The EAR and the ITAR are export control regulations administered by the U.S. Department of Commerce's Bureau of Industry and Security (BIS) and the U.S. Department of State's Directorate of Defense Trade Controls (DDTC). The BIS administers export controls on products and technologies having both military and civilian applications, while the DDTC administers export controls on munitions products and technologies.
The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).
Compliance with this export rule can be extremely complicated, and we recommend that employers seek appropriate legal advice as to how to determine licensing requirements and how to obtain required licenses. More information on how to analyze coverage under the EAR, including the list of covered countries are available online. The BIS has a list of FAQs. These FAQs highlight the complexity of this matter, as they include questions of changes in nationality and related matters. Additional information on ITAR is included on the DDTC WebSite.
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Department of Labor Targeting H-1B Pay and Benefits Compliance
The US Labor Department is aggressively investigating wage and benefits compliance against the attestations that employers make on the H-1B Labor Condition Application (LCA). These investigations are usually triggered when an H-1B employee complains that the employer failed to pay the LCA wage.
The H-1B program allows foreign nationals to work in the US in professional or specialty jobs. However, the employer must attest, among other things, that it will:
Pay the H-1B employee at least the prevailing wage set by DOL based upon job duties and the employment location, and
Offer the foreign worker benefits comparable to those offered to US workers in the same job classification.
DOL is taking these investigations very seriously and is assessing significant liability. For example, under a December 2010 consent order, a software consulting company agreed to pay over $638,000 in back wages and interest for LCA violations. The company and the owner also agreed to pay more than $126,000 in civil money penalties and interest for failing to provide the required LCA notice at each work site and for seeking a penalty from H-1B employees for terminating their employment early. The company will be debarred for a year from participating in the H-1B program.
During an investigation, DOL reviews information such as:
The contents of the LCA itself
A statement of how the wage rate was set
Documentation showing how the prevailing wage was established
The original notices posted advising workers about the LCA filing
A summary of the benefits offered to US workers in the same occupation,
Payroll records and dates of employment for the H-1B employee,
A copy of the H-1B petition filed with the US Citizenship and Immigration Services (USCIS),
Evidence that the employer notified USCIS if the H-1B employment was terminated prior to the end of the authorized period and that the LCA was withdrawn, and
The current or last-known address and contact information for all H-1B employees.
The investigation generally includes interviews with management officials and H-1B employees. DOL's main goals are (i) to determine whether the employer paid each H-1B employee the LCA wage for the period the LCA remained in effect (liability for not doing so can continue even after the employee was no longer employed but the LCA was not withdrawn); and (ii) to ensure that H-1B employees' wages were not docked when they were ready, willing, and able to work but the employer did not permit them to do so. If the investigator finds that the employer is in violation, DOL normally assesses liability for back-pay, any benefits shortfalls, interest, and civil money penalties. DOL might also insist upon monitoring and auditing the company's compliance with H-1B requirements. In serious cases, DOL might debar the employer from using the H-1B program.
It is essential in today’s immigration enforcement climate that you retain the services of a skilled law firm to handle the increasing compliance issues associated with the H-1B program.
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Being Prepared for your Visa Interview
A visa is a document issued by the U.S. Department of State (DOS), usually at a U.S. consulate abroad. This document, often called a “visa stamp” is affixed to a page in one's passport. A visa does not guarantee an individual's entry into the United States, nor does the visa confer US immigration status upon an individual. Instead, the visa allows the holder to request permission to enter the United States at a port of entry.
In today's business climate, being prepared on the day of your interview at the US Consulate is critically important. We always recommend that you do an interview prep with an attorney on the eve prior to your in-person interview at the US consulate and that the DS-160 form has been properly reviewed and submitted. You might wish to consider the below points:
- Be completely familiar with the information and documentation in the Petition that was approved by USCIS.
- Be able to articulate what your US employer does in the USA
- Make sure that the US employer is credible and has made you a bona fide job offer
- Be able to articulate the title and job duties associated with your position
- Be able to establish a clear link between your prior experience and future job duties
- Must be able to answer basic questions about your profession and display a level of fundamental knowledge concerning your occupation
- Remember, you are coming to the USA on a 'temporary' basis, with the intention of returning to your home country at the conclusion of your employment in the USA
Overall, focus on direct and specific answers to the questions asked - think, short and simple. Make eye contact with the officer and be pleasant and professional. Have your papers organized for yourself and each family member in a professional looking manner, so that if you are asked to present a specific document, you're not scrambling to find it. Professional business attire is always recommended.
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If you missed our special edition Healthcare Newsletter, you can access it here and our Employer Compliance Newsletter here
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3. What's New in Canadian Immigration?
With the ringing in of the New Year, 2011 brings with it some interesting updates for those interested in pursuing immigration to Canada.
Federal Skilled Worker Program
For those who have been keeping track of the revised Federal Skilled Worker (FSW) program in Canada, you will already be aware that Canada implemented caps on the number of FSW applications that would be accepted and processed, per occupation. Of the 38 occupations that are currently in demand in Canada and eligible for processing under the FSW program, two have reached the maximum cap of 1,000 applications received for processing from June 2010 to June 2011. These two categories include “Registered Nurses” and “Professional Occupations in Business Services to Management”.
Although no other applications can be submitted to Citizenship & Immigration Canada in regards to these occupations (unless, of course, an applicant had secured Arranged Employment in Canada), one might wish to consider working on their application in early 2011, to ensure that their applications are complete and ready for submission once the new caps are released in the summer of 2011.
Keep in mind that Canada is still quite keen on attracting Skilled Workers and the caps have not been reached for the other 36 occupations, some of which include Dentists, Pharmacists, Specialist Physicians, General Practitioner Physicians, Licensed Practical Nurses, Biologists, Architects, Chefs, Cooks and Electricians, to name a few.
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Temporary Foreign Workers
For those who are already in Canada on Work Permits, or intend to do so in 2011, you may wish to consider applying for Permanent Residence in Canada, perhaps under the FSW program, as Citizenship & Immigration Canada will be introducing new laws in April of 2011 in relation to Temporary Foreign Workers.
The changes include an implementation of a four-year cap on Temporary Foreign Workers, which will require a mandatory period of 48 months occurring before they can obtain another Work Permit for employment in Canada. This will come as a disappointment for many individuals who have been working in Canada indefinitely; however, I believe it will urge employers to encourage more workers to pursue Permanent Residence in Canada.
If you are interested in determining whether you may qualify to apply for immigration to Canada under the Federal Skilled Worker program; or any other, please do not hesitate to contact our office for a free consultation. In 2011, let us assist you in getting you where you need to go!
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Resources and links:
The following web pages provide information on the latest immigration news:
I-9 Employer Resource Center
Immigration Compliance Group “InFocus” newsletter
AILA.org Press Page – The American Immigration Lawyers Association (AILA) Press Page has the latest information on immigration topics, including press releases and Congressional testimonies. Spanish information is also available.
FAIR What’s New Page – The Federation for American Immigration Reform (FAIR), a restrictionist organization, has information on all Congressional activity that relates to immigration, including summaries of recently introduced bills and congressional hearings.
ILW.com’s Immigrant’s Weekly – ILW.com provides a free, weekly newsletter geared towards immigrants with articles on the latest immigration information, letters to the editor, help finding an immigration attorney and classified advertisements.
National Immigration Forum’s Current Immigration Issues Page – The National Immigration Forum’s Current Immigration Issues Page provides links to articles on the latest immigration news.
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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.
