In This Issue

• Article One - Immigration Reform
• Article Two - What's New in Immigration
• Article Three - What's New in Healthcare
• Article Four - Canada Update: Federal Skilled Worker Program
• Article Five - Travel Update: How to Recover Your Money or Goods
                             Confiscated by Customs
• Article Six - Employer Compliance News

Those of us who are frustrated to no end with the political posturing and total inaction on immigration reform, heard a speech this week designed to address the growing concern about Obama’s promise to Hispanic voters that he would tackle immigration in 2009. It is obvious that priorities have shifted considerably.

The speech followed on the heels of back to backWhite House meetings last week with immigration advocates, faith groups, labor leaders and the Congressional Hispanic Caucus. The speech also follows the President’s request for $600 million in additional border security spending to fund 1,000 additional Border Patrol agents, 160 additional ICE agents, and improved infrastructure along the Southwest Border. Although the President mentioned Arizona’s immigration law, he did not comment on the Department of Justice’s forthcoming legal challenge. The President did, however, reiterate that fixing the border alone is not a long term solution to our immigration problems.

Faced with what he called "political posturing" by Republicans over immigration reform, Obama fought back last week with some of his own political posturing. Despite months of outreach by the president and Democrat lawmakers, where on earth are the Republicans? He said, "Unfortunately, reform has been held hostage to political posturing and special-interest wrangling and to the pervasive sentiment in Washington that tackling such a thorny and emotional issue is inherently bad politics."

As recently as two months ago, on Air Force One, just as Senate leaders were announcing a new push on immigration reform, the President was caught in a moment of frankness and said that everyone had gone through a very tough year and that he’s been working Congress very hard, and that there wasn’t the appetite to dive into another controversial topic such as immigration reform. "That pretty much killed chances of reform [this year]," says Frank Sharry, founder and executive director of America's Voice, a group that supports comprehensive reform. "Unless there is some miracle, we are talking about early next year."

So, the question is asked: In this inspiring July 4^th speech, did we hear anything new? Not really. Despite Obama’s every effort to deliver a federal fix to our broken immigration system, the president cannot act alone. There were no timetables or road maps mentioned to comprehensive immigration reform. Instead, he blamed Republicans. "Many of the 11 Republican Senators who voted for reform in the past have now backed away from their previous support," he said, before warning of "false debates that divide the country" and a potential for demagoguery.

Everyone around the world knows our system is broken. The vast majority of Americans want immigration reform and want safe communities in which to live and raise their families. It’s high time for our political leaders to do their jobs and tackle the tough issues they were elected to handle - and show some leadership on this vitally important issue.

We will, of course, continue to keep you informed. We link to the full transcript and video of the speech here.

It shouldn’t be a surprise that the CEOs and billionaires have spoken out on the economic benefit that immigration reform will bring to the USA. Mayor Bloomberg and Rupert Murdoch have formed a coalition whose goal is to persuade Congress to enact revolutionary changes in immigration laws and policy.

“Our immigration policy is national suicide,” the Mayor said. “We educate the best and the brightest and then we don’t give them a green card---we want people to create jobs but we won’t let entrepreneurs from around the world come here.”

Essentially these leaders and others ranging from those who run Hewlett-Packard to the Walt Disney Company and Morgan Stanley are seeking basic change. These leaders have looked at the present and the future and decided that it’s in the self-interest of the institutions they command to make some revolutionary changes.

The group, which collectively run companies making more than $220 billion in annual sales, plans to use television and radio to try to do what others have not been able to, convince Congress to take up and pass comprehensive immigration reform. If the investment, and more importantly, the leadership, is up to the task, it may actually be possible. For more on this, click here.

Three employers (software developers and IT services firms) and two not-for-profit trade associations are challenging the USCIS Neufeld memo’s definition of th employer-employee relationships when adjudicating H-1B petitions filed by staffing and consulting companies, and have filed complailnts in federal district courts.

The plaintiffs allege that USCIS issued the memo in violation of the Administrative Procedure Act’s notice and comment requirements; that USCIS failed to perform a Regulatory Flexibility Act analysis; that the memo is inconsistent with existing regulations addressing the employee-employer relationship and the term “contractor” and conflicts with the plain language of the INA; and that it is arbitrary and capricious. Plaintiffs ask the court to preliminarily and permanently enjoin USCIS from implementing the memo. On June, 25, 2010, the government filed its opposition to the motion for a preliminary injunction.

We link to the complaint and other information for your reference.

New Brochure

We link to this excellent resource from the Department of State website here.

Also, if you're from one of the Visa Waiver countries (VWP) you can travel for 90 days to the US without a visa. For more on this here.

The Citizenship and Immigration Services Ombudsman (CIS Ombudsman) provides recommendations for resolving individual and employer problems with the USCIS. As mandated by the Homeland Security Act of 2002 § 452, CIS Ombudsman is an independent office that reports directly to the Deputy Secretary of Homeland Security.

The CIS Ombudsman regularly submits recommendations for process changes to USCIS. These periodic updates share information on current trends and issues to assist individuals and employers in resolving problems with USCIS.

If you are experiencing problems during the adjudication of an immigration benefit with USCIS, you can submit a case problem to the CIS Ombudsman using DHS Form 7001 (CIS Ombudsman Case Problem Submission Form). To submit a case problem on behalf of somebody other than yourself, you should ensure that the person the case problem is about (the applicant for a USCIS immigration benefit, or the petitioner who seeks to obtain an immigration benefit for a third party) consents to your inquiry (see Submitting a Case Problem using DHS Form 7001: Section 15 Consent). For the details, click here.

If you are not subscribed to our Blog you probably missed this information where we explained the difference between the various types of social security cards, ITIN and EINs and what is required to apply for licensure with the California State Board of Nursing. One must now hold either an Unrestricted or Restricted Social Security Card as explained here.

Applicants are encouraged to apply online.

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On June 1, 2010, Missouri became the 24^th state to pass legislation and implement the NLC in its state. The NLC allows a nurse to have one license in his or her state of residency and practice in other states (both physically and electronically), subject to each state's practice law and regulation. In an exclusive interview, Lori Scheidt, executive director, Missouri State Board of Nursing, discusses the challenges Missouri overcame in implementing the NLC and offers insight into the process for those states interested in passing NLC legislation. Go here for more information.

The latest NCLEX data paints a dire picture for healthcare officials who may be looking toward international workers to help alleviate the nursing shortage. The first quarter of 2010 saw the fewest number of international NCLEX test takers and test passers since 2006. The some 3800+ international NCLEX test passers are just 55% of peak 2007 numbers.

While the US nursing shortage certainly has eased in recent months, economists and government officials all agree that this is a temporary condition. The U.S. nursing shortage is projected to grow to between 260,000 and 500,000 registered nurses by next decade. If even the smallest estimates are correct, a shortage of this magnitude would be twice as large as any nursing shortage experienced in this country since the mid-1960s.

In 2006, about 20,907 internationally educated RNs passed the NCLEX exam for an average of 5,227 per quarter. In 2007, the volume jumped - 22,827 internationally educated nurses passed the NCLEX exam, or 5,707 per quarter. With the onset of retrogression, 2008 saw a decline; 18,905 internationally educated RNs passed the exam, or 4,726 per quarter. In 2009, the international NCLEX pass number shrunk to 13,799 per year (3,450 per quarter).

It goes without saying that reasonable visa opportunities for international nurses must be legislated or else the US is going to find that it has a massive nursing shortage with international nurses no longer available to fill the gap. Resources:
Quarterly Examination Statistics
Occupational employment projections to 2018
The Recent Surge In Nurse Employment: Causes And Implications

On June 26, 2010, Citizenship & Immigration Canada introduced new ministerial instructions, which are effective immediately.

In a sudden move to promote faster immigration to Canada, Citizenship & Immigration Canada included new occupations, which are now eligible for the immigration process, including Primary Production Managers, Professional Occupations in Business Services to Management, Insurance Adjusters/Claims Examiners, Biologist (and related Scientists), Architects, Dentists, Pharmacists, Dental Hygienists, Dental Therapists, Psychologists, Social Workers and Contractors/Supervisors in the Mechanic Trades.

In-demand occupations will continue to include applicants with experience in the following occupations:

Restaurant/Food Service Managers, Specialists in Clinical Medicine, General Practitioners/Family Physicians, Physiotherapists, General Duty Registered Nurses, Licensed Practical Nurses, Chefs, Cooks, Contractors/Supervisors in the Carpentry Trades, Electricians, Industrial Electricians, Plumbers, Welders & Related Machine Operators, Heavy-Duty Equipment Mechanics, Crane Operators, Drillers/Blasters (Surface Mining, Quarrying/Construction), Supervisors in Oil & Gas Drilling & Service.

As you can see, the occupations vary widely; however, many medical professionals are needed in Canada and eligible for the Federal Skilled Worker application process for Permanent Residence in Canada.

In addition, it is now mandatory for each applicant to undergo an English Proficiency exam, in order to qualify for the program.

If you are considering applying under this category, you need to act fast because in addition to the changes noted above, Citizenship & Immigration Canada has also introduced a limit to the amount of applications that will be processed within the next year, to a maximum of 20,000 applications.

Should you have any questions concerning these changes or wish to discuss living and working in Canada, please contact us.

Ellen R. de Witt, CCIC, FCMI, has been working solely in the field of Canada immigration matters, since 1999. She is a Fellow of the Canadian Migration Institute and has been appointed as a Commissioner of Oaths by the Province of Ontario’s Attorney General. Ms. de Witt is Immigration Compliance Group’ Canadian affiliate in Windsor, Canada.

During the season of summer travel, one problem is that individuals often do not take notice of restrictions of the sort of items they may carry or fail to declare the amounts of currency they have with them when they travel. It is not unusual for travelers to take with them significant amounts of money for use in their homeland for purchase or improvements to property in their home country, to re-pay debts or simply provide financial aid to their loved ones back home.

There is no restriction on the amount of currency you may transport to or from the United States. You are however required to file a declaration on CBP form 4790 for transportation of any amount in excess of $10,000.00 to or from the United States. Failure to report currency can result in a civil and even criminal charge and forfeiture (confiscation) of money in an amount to be determined by Customs and Border Patrol and or Immigration Customs Enforcement officials.

Whether it is currency or goods which have been confiscated you may through a petition for remittance or mitigation of the forfeiture, seek to recover your lost assets. Recent changes in regulations now require filing of the petition with Customs and Border Protection regardless of whether the confiscation took place through customs officials or through Immigration Customs and Enforcement (ICE) Officers. It is not unusual for ICE officers to seize funds, personal items including foreign passports and other items at the time that an individual has been taken into custody.

It is possible to obtain return of personal property and return of all or nearly all of the funds seized by the government. Many individuals do not seek recovery of their assets which are rightfully theirs. Crucial to a successful petition for remittance is to show that the funds or assets were not used or obtained in the commission of a crime and that seizure of the funds would violate the excessive fines clause of the 8th Amendment to the U.S. Constitution. In many cases individuals are reluctant to seek the return of their funds even though no crime has been committed in connection with the seizure of assets or belongings. The government however provides an orderly process to request and obtain the return of all items seized from an individual.

If you have had property or assets seized by ICE or Customs and wish to recover your property, you should consult with a qualified attorney and explore your prospects for recovery.

Mr. Dupont is a graduate of Yale University and USC Law School and is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California as well as the 9th Circuit Court of Appeals. Mr. DuPont is a past chairman of the Immigration Law Committee with the Beverly Hills Bar Association. During the course of his 12 year practice in immigration law he has directly influenced Department of State and USCIS practices and policies through Federal District Court litigation including a Ninth Circuit Court of Appeals decision on V-Visas eliminating age-out of minor V-visa recipients. Should you wish to consult with or engage the services of Mr. Dupont, please contact Immigration Compliance Group here.

All employers should ensure that Form I-9 compliance policies and protocols are current and consistently applied in all offices for all employees. It has been confirmed that USCIS and ICE are working in coordination with the Social Security Administration and the DOL on several enforcement initiatives, especially related to Form I-9 enforcement, and it is expected that such coordinated initiatives will become more prevalent. Compliance starts with comprehensive policies, a trained, well-informed staff and consistent practices. Legal experts can assist with efficient file audits and policy implementation and training, and can offer peace of mind in a very active enforcement environment and help you with establishing and documenting simple and clear immigration strategy and policies. Please contact our office should you require any of these services: Please contact our office should you require any of these services.

A Privacy Impact Assessment (PIA) update for the E-Verify Program was made available by the Department of Homeland Security (DHS). The PIA update describes the additional information E-Verify will require from new registering employers, which will be sent to Dun & Bradstreet (D&B), a provider of information on businesses and corporations, and be compared against the D&B database to authenticate the employer is in fact a bona fide enterprise.

According to the update, the additional requirements and corroboration by D&B is an effort to reduce the abuse of the E-Verify system by denying access to potentially unqualified or even fictitious employers.

Specifically, E-Verify will now request the following information for new registrations:

• Doing Business as (DBA) name if applicable;
• The DUNS number, a Dun & Bradstreet Identifier, if available. Not all employers will have a DUNS number, and other information such as address and phone number will be used to differentiate similar employees;
• The Administrator’s Name – Links a company to its corporate administrator. This is the new name of the field formerly known as “Corporate Administrator”;
• Parent Organization (if applicable); and
• Optional: Marketing Channel (where the employer heard about E-Verify).

Depending upon the D&B results, E-Verify will either allow the new employer to register automatically, or attempt to verify the submitted business information by contacting the employer by phone or email. For example, if an individual is hiring a domestic employee and they wanted to use E-Verify, D&B would likely have no information on record for that particular individual employer. In this case D&B will probably return a no match and E-Verify would then contact the individual employer and confirm that they are in fact seeking to verify employment eligibility for an employee.

If E-Verify registration is denied, the employer can always attempt the registration process again in the future, bearing in mind that their information must be verified in order to complete the E-Verify registration process. For more info, click here.

The U.S. Supreme Court agreed to hear an appeal to the Legal Arizona Workers Act (LAWA), a 2007 Arizona state law which requires all employers in the state to participate in E-Verify and imposes sanctions on employers who hire unauthorized workers. The case, U.S. Chamber of Commerce et al. v. Candelaria, will come before the Court in the fall of this year. We link to the LawLogix Blog post here.

On July 1, a new Utah law will kick in requiring businesses to verify the legal status of all new employees and to turn away anyone found without proper documents. If companies comply, they'll leave Utah's estimated 100,000-plus undocumented immigrants with just a few, hard options: find work that pays under the table, use fake documents or leave. More on this here.

The Department of Justice (DOJ) announced that it has reached an agreement with Morton’s Restaurant in Portland, Oregon to settle allegations that it required two work-authorized non-citizens to present more documents than legally required during the I-9 process. According to the DOJ’s press release, the workers presented valid Social Security Cards, but the company demanded they produce additional documents to prove they had work authorization. When the workers failed to do so, the company fired them. In contrast, Morton’s routinely permitted U.S. citizens to present Social Security cards as a List C document without further scrutiny.

Morton’s I-9 practices will be monitored by the DOJ for 1 year to ensure compliance. For more on this, click here.

On July 1st, South Carolina’s E-Verify law (which is one of the toughest in the nation) will expand to include all employers, regardless of size or industry. Presently, the South Carolina Illegal Immigration Reform Act requires employers with 100 employees or more (of which there are roughly 2,100 in the State) to submit new hires through E-Verify or confirm that the individuals possess or qualify for a South Carolina driver’s license or other state license with similarly strict requirements. On July 1, 2010, the law will expand to cover organizations with less than 100 employees, or roughly 110,000 additional employers according to the agency’s estimates (see article here). Failure to abide by the law can lead to a civil penalty of between $100 and $1,000 for each violation.

Since the law went into effect on July of last year, the state has audited 1,500 companies and issued roughly 90 citations for various failures. In almost all cases, the state has waived the penalty under the law’s first time violation exception as long as the employer begins using E-Verify or otherwise corrects the problem within 72 hours. Although the citations have been relatively low, the State expects this to pick up next month when they turn their attention on smaller employers (particularly those in the hospitality and construction industry).

For a complete list of citations month by month, we link here.

The Justice Department has announced a settlement agreement with Aquatico Pool Management, Inc., as a result of an I-9 discrimination complaint brought by a lawful permanent resident who was seeking employment as a part-time swim instructor. According to the Press Release, the individual presented a valid permanent resident card during the I-9 process as well as a Social Security Card which had the notation “valid for work only with DHS authorization.” Although the permanent resident card alone satisfied the section 2 documentation requirement, the company allegedly refused to hire the individual because of the restricted SS card. For more on this, click here.