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| Your Trusted Immigration News Source |
March 2008, Vol. 1, Issue 2 | |
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GLG NEWS |
Jerry Grzeca is scheduled to meet with U.S. Department of State leadership in Washington, D.C. in April as part of the American Immigration Lawyers Association (AILA) Liaison Team.
Jerry Grzeca is scheduled to meet with Lawmakers on Capitol Hill as part of National Day of Action on April 3rd.
Jerry Grzeca is scheduled to oversee an Issues Teleconference with National Visa Center (NVC) officials on March 20th.
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PRESENTATIONS |
April 2-5, 2008 - Washington, D.C. AILA Spring Conference
April 14, 2008 - Midwest Regional Conference in Chicago
April 28, 2008 - AILA, New York Chapter Conference
May 2, 2008 - AILA, Minnesota Chapter Conference
June 25-28, 2008 - Vancouver, Canada. Chair of Business Conference Committee at AILA Annual Conference |
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QUOTABLE |
"We live in an economy that depends on the ability of innovative companies to attract and retain the very best talent, regardless of nationality or citizenship.
Ultimately, however, if we are to align our immigration policy with global realities and ensure our place as the world's leading innovator, Congress must make additional changes to our employment-based immigration system."
- Bill Gates, Chairman, Microsoft Corporation (written testimony to the House of Representatives, March 12, 2008)
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In this issue...
Non-H-1B Options Available
U.S. Citizenship and Immigration Services (CIS) will accept petitions for new H-1B visas beginning April 1, 2008. There are a number of options that may be available to qualifying individuals whose petitions are not accepted by the CIS. Read more
Higher Fines Against Employers for Immigration Violations
The federal government has announced that it will increase civil penalties against employers for immigration law violations occurring on and after March 27, 2008. Read more
Reentry Permit Applicants Now Required to Appear for Biometrics Processing
The CIS has issued revised instructions for Reentry Permit Applications to provide biometrics (e.g., fingerprints and photographs) at CIS Application Support Centers (ASC) for background and security checks. Read more
Baltic Countries Join U.S. Visa Waiver Program, Rest of EU Could Be Next
Latvia and Estonia became the latest countries to join the U.S. Visa Waiver program after signing an agreement with the United States this week. The EU's top justice official is optimistic that the rest of the EU will follow suit in 2008. Read more
What to do When an Employee Leaves the Company
Depending on the current immigration status of the employee and the applications and the petitions that are pending before the CIS, an employer has various options and obligations when an employee leaves the company. Read more
New FBI Background Check Policy
The CIS has recently issued a new FBI Background Check Policy that has implications for the processing of certain applications. Read more
DHS Begins Collecting 10 Fingerprints from Visitors
U.S. ports of entry are implementing a new security program this year that collects 10 fingerprints from international visitors at ports of entry. Read more
Quick Tips for Traveling to U.S. Embassies, Consulates, and Ports of Entry
Visiting U.S. Embassies, Consulates and Ports of Entry can often create anxiety for international travelers. There are some important tips to consider in order to promote a positive experience. Read more | |
| Non-H-1B Options Available
U.S. Citizenship and Immigration Services (CIS) will accept petitions for new H-1B visas beginning April 1, 2008. Therefore, please contact our office now if you intend to request an H-1B for any of your foreign national employees.
Due to high demand for the 65,000 available visas, it is possible that the CIS will use a lottery system to determine which petitions will be accepted for processing. Since we cannot guarantee the acceptance of H-1B Petitions filed on even the very first day of processing, here are some other options that may be available to qualifying individuals whose petitions are not accepted by the CIS.
Alternatives to the H-1B Classification:
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O-1 Alien of Extraordinary Ability |
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Requirements |
Open to applicants from all countries. Must demonstrate extraordinary ability in arts, sciences, education, business, or athletics |
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Duration of Stay |
Initial O-1 classification is valid for three years, unlimited one year extensions |
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E-3 Specialty Occupation Classification for Australian nationals |
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Requirements |
Position must require a Bachelor's Degree and the individual must possess a Bachelor's Degree, or equivalent |
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Duration of Stay |
Initial E-3 classification is valid for two years, with an unlimited number of extensions |
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H-3 Training Program |
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Requirements |
Available to a foreign worker who is entering the U.S. to engage in a training program where productive employment will be incidental to the training and training is not offered in home country |
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Duration of Stay |
Maximum period of stay is two years, however rarely granted for longer than 18 months |
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J-1 Summer Work/Travel Program |
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Requirements |
Foreign college or university students entering the U.S. to work during their summer vacation |
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Duration of Stay |
Maximum of four months |
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J-1 Trainees and Interns |
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Requirements |
Requirements vary depending on the type of program, Interns must be currently enrolled in an academic program, or have graduated within the last 12 months; Trainees must have a degree or certificate and one year of experience in the field or five years of experience in the field. |
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Duration of Stay |
Can be valid for a 12-18 month period, depending on the occupation. Two-year management trainee program available only for Australian citizens. |
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L-1A Multinational Manager or Executive |
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Requirements |
Must have served as a managerial or executive employee of the company outside the United States for at least one year in the last three years AND the position in the U.S. must also be managerial |
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Duration of Stay |
Initially valid for three years. Can extend in two-year increments up to the seven year maximum. |
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L-1B Specialized Knowledge Professional/Employee |
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Requirements |
Must have served as a specialized knowledge employee of the company outside the United States for at least one year in the last three years AND the position that the employee will be assigned to in the U.S. must also require specialized knowledge. |
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Duration of Stay |
Initially valid for three years. Can extend for two years, up to the five year maximum. |
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TN NAFTA Professional |
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Requirements |
Available for Canadian and Mexican citizens engaged in professional employment with a job offer in the U.S listed in Appendix 1603.D.I of Chapter 16 of NAFTA, most require a Bachelor's Degree in the field |
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Duration of Stay |
Valid for one year, with an unlimited number of renewals. |
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H-2B Temporary Service or Labor Workers |
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Requirements |
Position must be one for which the employer has a temporary need (duration of less than one year, due to peakload, seasonal, one-time, or intermittent basis) and for which qualified U.S. workers are unavailable. A Alabor certification@ must be sought from the U.S. Department of Labor (DOL). |
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Duration of Stay |
Initial period of stay must be reasonable in terms of the duties to be performed and cannot extend beyond an initial period of one year. Foreign nationals in H-2B status in the U.S. are not subject to the H-2B cap and are able to remain here for a total of three years at a time based on subsequent petitions. |
In order to maximize the use of these options, it is important to consider incorporating global immigration strategies into your company's current recruitment and succession planning programs. Including worldwide immigration options in your recruitment strategy may make it possible for your company to develop a regular stream of qualified candidates, strategically moving employees between facilities in the U.S. and abroad. Although many of these options also exist for companies operating solely in the U.S., international companies have competitive advantages when pursuing these types of strategies.
Please contact our office to discuss how we can partner with you to develop a customized global recruitment strategy to assist you in meeting your recruitment and succession planning needs.
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| Higher Civil Fines against Employers for Immigration Violations
The federal government has announced that it will increase civil penalties against employers for immigration law violations occurring on and after March 27, 2008. Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to sanctions including civil monetary penalties. Current law allows these fines to be adjusted for inflation and this action is part of a series of reforms the administration is pursuing to address border security and immigration challenges within existing law.
The civil penalties for a first offense of knowingly hiring or continuing to employ an unauthorized alien will increase from a range of $275 to $2,200 to a range of $375 to $3,200 for each unauthorized alien. A second offense will subject an employer to a fine of $3,200 to $6,500 per unauthorized alien, and fines for subsequent offenses will range from $4,300 to $16,000 for each unauthorized alien. The same ranges and increases will apply to instances of unfair immigration-related employment practices, defined as discrimination with respect to hiring or termination of individuals because of their national origin or citizenship status.
Employers can also be subjected to civil penalties for failing (1) to verify the employment eligibility of any employee on an I-9 form; (2) to complete the I-9 properly for any employee; (3) to present the I-9 forms within the required period after a request for review is made; or (4) to maintain an I-9 for every employee for the length of time required by the rules. The penalty range for each instance of these so-called "paperwork violations" remains at $110 to $1,100. The same penalty range also applies to "document abuse" by an employer, i.e. requesting more or different documents from a new employee during the I-9 employment verification procedure than are required by law, or refusing to honor acceptable documents, if the request or refusal is made for the purpose of discriminating against an individual on the basis of national origin or citizenship status.
Civil penalties have also been increased for forging, counterfeiting, altering documents or using such documents for the purpose of satisfying an immigration requirement, or using documents which have been lawfully issued to another person. However, an employer may also be penalized for accepting such documents. Violations in this category have increased to a range of $375 to $3,200 for the first offense and $3,200 to $6,500 for subsequent offenses.
Though these penalties are significant, employers should keep in mind that the government may also seek criminal penalties for these violations. Our office offers comprehensive services to assist our clients in developing programs to ensure compliance with these federal regulations. Please do not hesitate to contact our office for more information.
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| Reentry Permit Applicants Now Required to Appear for Biometrics Processing
U.S. Citizenship and Immigration Services (CIS) has issued revised instructions for the Application for Travel Document (Form I-131). The changes that took effect on March 5, 2008 require applicants for Reentry Permits and Refugee Travel Documents to provide biometrics (e.g., fingerprints and photographs) at CIS Application Support Centers (ASC) for background and security checks.
Reentry Permits are typically obtained for permanent residents planning to travel abroad for periods greater than one year. The Reentry Permit presumptively establishes that the permanent resident has not voluntarily abandoned their permanent resident status. As the end of the two year period approaches, a new Reentry Permit must be applied for if absence from the United States will continue beyond that time.
Shortly after filing the I-131's the CIS will mail the Receipt Notice and an ASC scheduling Notice to each applicant. The applicant will then be required to report to the ASC in the U.S. at the indicated time for biometrics. The I-131 instructions also provide guidance for certain persons who are abroad at the time to visit a U.S. Embassy or Consulate for fingerprinting.
Although applicants may be able to appear for biometrics processing at a U.S. Embassy or Consulate abroad, the CIS strongly encourages individuals to apply well in advance of their anticipated travel dates to allow time to attend an ASC appointment and receive a travel document prior to departing the U.S. Grzeca Law Group frequently obtains Reentry Permits for its clients and would be happy to answer any questions you may have in light of these new procedures.
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| Baltic Countries Join U.S. Visa Waiver Program, Rest of EU Could Be Next
Latvia and Estonia became the latest countries to join the U.S. Visa Waiver Program (VWP) after signing an agreement with the United States this week. The deal will allow citizens of these countries to travel to the U.S. without needing a tourist visa beginning later this year. In exchange, the two Baltic nations will share passenger data and air travel information necessary for the visa waiver program.
While business visitors must usually obtain a B-1 Nonimmigrant visa at a U.S. Consulate abroad prior to entering the United States, under the VWP, certain visitors for business or pleasure can enter the United States for a period of up to ninety (90) days for purposes acceptable to the B visa category, without first obtaining a visa. In addition, such visitors are precluded from applying for an extension of stay, for a change of nonimmigrant status, or for adjustment of status to permanent residence. Waiver visitors who arrive by air must have a "return trip ticket" to any foreign port; however, the trip may not terminate in Mexico, Canada, or one of the adjacent-island countries unless the ticket holder is a resident of that country. Participants in this program are allowed, during the ninety-day period of their visit, to travel to adjacent islands and contiguous territory (Canada and Mexico), and return to the United States.
The VWP still excludes 10 European Union (EU) countries, including Greece and many of the eastern European nations that joined the EU in 2004 and 2007. However, the EU's top justice official, Franco Frattini, expressed optimism earlier this week that the entire EU could be granted visa-free access deals with the U.S. as early as June 2008. Frattini told reporters that he believes that Washington is eager to include all EU nations in the program because "the U.S. is keen to cooperate with the EU member states" on security issues.
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| What to do When an Employee Leaves the Company
Depending on the current immigration status of the employee and the applications and the petitions that are pending before the U.S. Citizenship and Immigration Service (CIS), an employer has various options and obligations when an employee leaves the company. It is always advisable for a company to notify CIS when an employment relationship has ended, but in some situations the obligations of the employer are much more significant. In addition, the termination of the employment relationship may have serious implications on pending and future immigration petitions on behalf of the foreign national. Therefore, whenever a foreign national gives notice or a company is making the decision to terminate its relationship with a foreign national, you should contact our office so that we can help make the transition as smooth as possible.
Certain situations require particular attention and are described below:
Employees in H-1B Classification
A former employer has an affirmative obligation to notify CIS when an H-1B employee leaves the company. Otherwise, the employer may be liable to continue payroll obligations beyond the date of termination. In addition, employers must offer to pay the return transportation for H-1B workers whose employment is terminated prior to the expiration of the authorized period of stay. Even when the cause of termination is beyond the employer's control (e.g., the alien's assigned project ends early) the employer is liable for return transportation costs. Only if the employee terminates the employment relationship is the employer released from this obligation. Our office is happy to facilitate the proper notifications to the employee and USCIS.
Impact of Termination of Employment Relationship on Pending Permanent Residence Applications
A foreign national may "port" his permanent residence petition to a new employer if certain conditions are met. If those conditions are not met, a permanent residence application may be considered abandoned. Therefore, it is imperative that if a company no longer intends to employ the foreign national in a permanent position upon conference of permanent residence or is considering terminating an employee with a pending Immigrant Petition for Alien Worker (I-140) or Application to Adjust Status (I-485), the company should contact our office. At that time, we can discuss the potential impact on those applications and strategies to protect the company's and the foreign national's interests.
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U.S. Citizenship and Immigration Services (CIS) has recently issued a new FBI Background Check Policy as it relates to the following Applications:
- Application to Register Permanent Residence or Adjust Status (I-485);
- Applications for Waiver of Ground of Inadmissibility (I-601);
- Applications for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687); and,
- Applications to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).
Currently, the CIS will not approve any of the above applications unless they have completed a definitive FBI name check and an Interagency Border Inspection Services (IBIS) check.
According to the new policy, if the FBI name check request has been pending for more than 180 days, the CIS can now adjudicate these Applications as long as they possess all required documentation and have been pending longer than the normal processing times. However, if after these Applications are adjudicated and the Department of Homeland Security (DHS) later receives an unfavorable result from the FBI background check, they may initiate removal proceedings on behalf of the individual.
The CIS believes that most of the currently pending Applications that meet this criteria should be adjudicated by mid-March 2008. Inquiries can be made with the CIS if an individual has not heard anything by mid-March and they know that their application is still waiting on the completion of a FBI name check.
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DHS Begins Collecting 10 Fingerprints from International Visitors
In 2004 Department of Homeland Security (DHS) began the implementation of the US VISIT program. The US VISIT program collects ten fingerprints from an international visitor and runs checks against the Department's of Defense (DOD) and FBI's records and the records of immigration violators prior to granting entry into the U.S.
The Detroit Metropolitan Wayne County Airport is the most recent port of entry to implement US VISIT. The ten-fingerprint collection is already implemented at the Washington Dulles, Hartsfield Jackson Atlanta, Boston Logan, Chicago O'Hare, San Francisco, Miami and Orlando International Airports and the George Bush Houston Intercontinental Airport. New York's John F. Kennedy International Airport is expected to shortly join this list, followed by all the remaining air, land and sea border ports of entry by the end of 2008.
Collecting ten fingerprints allows for more accurate database matches, comparison to fingerprints collected by the DOD and FBI from known and unknown terrorists, and allows for easier visitors' identification.
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Quick Tips for Traveling to U.S. Embassies, Consulates and Ports of Entry
Visiting U.S. Embassies, Consulates and Ports of Entry can often create anxiety for international travelers. In order to promote a positive experience, your foreign national employees should consider the following tips:
1. Be professional. It is very important to project yourself in a positive light. Remember to dress professionally and address all immigration officials as you would in any formal situation. Always remain calm and avoid becoming argumentative, even if you are unhappy with the demeanor of the immigration official.
2. Be patient. A visit to a U.S. Embassy, Consulate, or Port of Entry often entails a considerable wait time. Be patient while waiting for your turn, and allow yourself plenty of extra time to get through the process.
3. Answer carefully. Your trip to a U.S. Embassy, Consulate, or Port of Entry will likely involve various questions. Remember to keep your answers short and provide only the information that is being asked of you. Clearly and concisely deliver your responses and make sure that you are direct and "straight to the point" with your answers.
4. Arrive on time. In order to avoid creating frustration for immigration officials, arrive for appointments at U.S. Embassies and Consulates on time. Arriving earlier or later than instructed can interfere with the location's standard procedures.
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Grzeca Law Group, SC is an AV-rated law firm dedicated to providing superior professional service to the international business community by advising corporate clients on all aspects of employment-related immigration law.
Immigration Update has been prepared by Grzeca Law Group, S.C. for informational purposes and does not constitute legal advice. This information is not intended to create, and receipt of it does not consitute, lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisors. | |
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