With the presidential election heading into its final days, the issue of immigration remains unaddressed.  Over the past year, Congress has failed to move on a blind promise of comprehensive immigration reform.

Intermittent work site raids, increased local law enforcement involvement and the creation of a wall along parts of the southern border have done little to address the challenges posed by illegal immigration.

The most visible of the initiatives has been the work site raids in cities and towns across the nation. While these actions meet the political need to show government's law enforcement capabilities, they have had little effect on the number of undocumented workers in the United States.

The involvement of local law enforcement in immigration has divided many neighborhoods, families and communities. Not only do immigrants fear what a work site raid might do immediately to their family, but more importantly their futures, and the futures of their children in the United States.

While some organizations that oppose immigration are delighted by this and hope such an atmosphere will lead to a mass exodus of illegal immigrants, they are most likely to be disappointed. What they are not aware of is that 70 percent of the undocumented workers that have lived in this country for five years or longer have no home to return to. These people identify themselves more as Americans than any other status, and would rather live here in the shadows than take their U.S.-citizen children back to a place they do not know.

To many elected officials, immigration has become the new "third rail" of American politics. Refraining from addressing this pressing domestic issue, however, will elevate tensions in states and localities, further alienate immigrants and their communities, and tacitly affirm the acceptance of a hidden and permanent underclass in our country.

The silver lining of this dark cloud upon our immigrant history is that it demonstrates that an enforcement-only approach to illegal immigration is ineffective and contrary to our national interests. A new administration and new Congress will be forced to act -- this time in a broad and balanced manner. Otherwise, the American people will be left pondering a wall and wondering why it is not working.

For more information on America Hitting a Wall on Immigration:
Read this article by Thomas Wenski in the Washington Post

And for more information on the candidates lack of discussion on immigration:
Read this OP-ED from the Washington Times

2. Immigration & The Economy

By Brandon Meyer
Immigration Compliance Group Associate

Bad economic news seems to be everywhere. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and the end of prosperity have all become ubiquitous over the past couple of months. The bottom and the subsequent rebound are nowhere to be seen. Now take a deep breath, exhale, and relax. At the time this column was written, I was on a flight from San Diego to Austin packed with business travelers. Oil and other commodity prices have fallen back in recent months after reaching record highs. There are signs that credit markets are beginning to function again. Insofar as pundits cannot oversell the good times (remember Dow 36,000?), pundits cannot resist the temptation to oversell doom and gloom (remember predictions last summer that oil would reach $500 a barrel?). An October 26, 2008 article in the New York Times entitled “Forecasters Race to Call the Bottom to the Market”, explains this phenomenon in greater detail.

The outcome to recent manifestations of economic instability will hopefully be much more mundane. We will all muddle through somehow, although this may seem hard to reconcile for people under the age of 30 who have never really lived through a period of economic instability. Economic growth may be slow to non-existent for the foreseeable future, but full-scale economic collapse is unlikely.

What impact does this economic uncertainty have on immigration for employers and employees alike? Many employers may contemplate downsizing in order to cut costs or reduce employee work hours (“benching”) or pay. While these strategies may be necessary from a business perspective, employers need to keep in mind the potential impact on their foreign national employees. Employers with E-3 Australian and H-1B employees must ensure that any downward revision of wages received by these employees do not fall below the figure listed on the Labor Condition Application (“LCA”) that was obtained on their behalf. Failure to comply with wage obligations of an LCA could be considered noncompliance by the U.S. Department of Labor and could lead to negative consequences for the company. Employers are also required to offer H-1B employees who have been involuntarily terminated the cost of return transportation to their last place of foreign residence. This requirement does not extend to E-3 or TN workers or to dependents of H-1B employees. It is important to consult your labor or immigration attorney prior to terminating, benching, reducing working hours, or reducing wages for foreign national employees.

Furthermore, health care providers must ensure that offers of permanent employment to immigrant nurses also remain at a level equal to the prevailing wage of the Immigrant Visa petition (“IV”) that was filed on their behalf.

The upside for employers is that if unemployment continues to rise, the opportunities for recruiting highly skilled, highly qualified workers increases. Recruiting top-notch workers now places employers in a good position to capitalize on better times in the future.

Some industries, such as banking and finance, will face tough times for the foreseeable future. Some companies, such as Lehman Brothers, have already, or will disappear in the future. Others, such as Wachovia, will be purchased and subsumed into their new owner’s business. Other industries, such as health care, are more insulated from economic slowdowns, and in fact may be poised for greater growth as Baby Boomers enter their golden years.

Foreign national employees generally feel a greater sense of insecurity during periods of economic uncertainty, as they may believe that their immigrant status makes them more vulnerable to selection for any company downsizing. How companies manage this (mis)perception is critical for maintaining employee morale and retention.

In addition to the LCA and return transportation protections for H-1B employees, there are a number of other protections for foreign national employees. Chief among them are provisions allowing H-1B employees to change employers upon the filing of a new H-1B petition, provided the employee is maintaining H-1B status. Upon termination, H-1B employees generally have ten days to depart the United States. H-1B change of employers provisions are helpful in allowing an H-1B employee to change employers in the wake of corporate downsizing, provided that the H-1B employee is still on the books of the initial company at the time of filing of the H-1B petition by the new employer. The H-1B employee can commence employment with the new company upon proper filing of the new H-1B petition. Please consult your immigration attorney prior to terminating an H-1B employee or hiring a new H-1B employee pursuant to the H-1B change of employer provisions.

An even more important protection for foreign national employees rests in the Adjustment of Status (“AOS”) portability provisions of the American Competitiveness in the 21st Century Act (“AC-21”). A foreign national with an AOS application pending for 180 days or more based on an approved or pending (with the proviso that the petition was ‘approvable when filed’) IV petition on Form I-140, that has not been withdrawn by the petitioning company or otherwise revoked by USCIS, may seek employment with a different employer in a ‘same or similar’ occupation that the I-140 petition was filed. The foreign national should notify USCIS of the change of employer, along with a description of how the new job opportunity is the ‘same or similar’ to the job opportunity described in the I-140 petition. In the absence of governing regulations, there is a lot of grey area and wide divergence of practice for how employers and employees handle AOS portability situations. However, USCIS expects to publish regulations governing AC-21 that purport to address these issues in the near future. Please consult your immigration attorney when encountering employees with possible AC-21 issues.

The next economic boom is always just around the corner. Strong companies will emerge from this period of economic uncertainty stronger and ready to seize upon new opportunities. Employees can also emerge stronger and wiser from the experience.

I will be attending the 21st Annual AILA California Chapters Conference from November 13th through 15th in San Francisco, California. I will report on any developments and other pertinent information that may emerge from this Conference in the December 2008 Immigration Compliance Group newsletter.

Stay tuned!

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3. A Creative Solution to the H-1B Cap Problem

By Thomas J. Joy
Attorney at Law

Immigration Compliance Group 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.

4. I-140 Processing Delays

There were many I-140 cases filed simultaneously during the summer of 2007 that have been delayed along with the Nurse Petition Schedule A filings. This could create an impression that the USCIS is not processing these petitions until their priority dates become current.

In response, the USCIS has specified that it identified I-140 petitions that have been held up because visas are not available, and indicated that "the instance of delayed I-140 adjudication should decrease significantly." There does NOT need to be a visa number available to obtain approval of the I-140. The USCIS apparently was concentrating efforts on cases with visa number availability, in an effort to prioritize workloads. The USCIS has said the delays will "be addressed."

5. Employer Compliance: Who is a Legal Worker & How Can I Tell?

Employees must present documents establishing their identity and authorization to accept employment in the United States.  Acceptable documents are listed on the Form I-9 and include a State issued driver’s license, Social Security card, Passport, CIS Employment Authorization Document, Non-immigrant Visa, I-94 card, Lawful Permanent Resident card, etc. The employer must examine each document presented and record information concerning the documents, including document identification numbers and expiration dates. Employers should establish procedures to re-check documents with expiration dates, such as non-immigrant visas, I-94 cards and CIS Employment Authorization Documents.

Managing I-9 documentation and verification is a significant challenge for employers across the United States. Companies want to confirm an employee’s work status as soon as possible and meet the I-9 compliance guidelines. Egregious violations could lead to aggressive criminal prosecution. The damage to a company’s brand, morale, and reputation could be devastating.

Regardless of a company’s size, location, or industry, the DHS is increasingly enforcing immigration compliance standards and sanctioning companies with poor records. Criminal penalties and arrests for immigration-related violations continue to grow every year.

Immigration Compliance Group 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, you’re notified that you must produce all of your H-1B public access files and related documents for audit …Or, your company receives a Social Security No-Match Letter.

Immigration Solutions will customize a compliance 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 and to schedule a pre-audit assessment, please contact us at info@immigrationcompliancegroup.com