Immigration Update
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Your Trusted Immigration News Source January  2009, Vol. 2, Issue 1
GLG NEWS
�  Jerry Grzeca will attend AILA National Day of Action in Washington, D.C. on March 19, 2009 to advocate for immigration reform before Members of Congress and their staff. 
 

Congratulations to Jerry!  He was elected by AILA's Board of Governors to the five member 2009 National Nominating Committee, who in turn, select its future officers.
 

Stay tuned for the release of our new website.
QUOTABLES
"I will support a temporary increase in the H-1B visa program as a stopgap measure until we can reform our immigration system comprehensively. I support comprehensive immigration reform that includes improvement in our visa programs, including our legal permanent resident visa programs and temporary programs including the H-1B program, to attract some of the world's most talented people to America. We should allow immigrants who earn their degrees in the U.S. to stay, work, and become Americans over time".

 - President Barack Obama

H-2B Update
If you haven't already filed for an H-2B for this spring or summer, you are out of luck. On January 8, 2009, U.S. Citizenship and Immigration Services announced that as of January 7 a sufficient number of H-2B petitions had been received to reach the 33,000 cap for the second half of FY 2009.

H-2B workers are found in seasonal and peak-load positions for occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

Please contact us in April if you are interested in pursuing H-2Bs for temporary positions for this coming fall or winter.
Quick Links
IMMIGRATION REFORM ON THE HORIZON 
Many See Likelihood of Immigration Reform with New Obama Administration
Regardless of their political affiliations, most people agree that the last eight years have been difficult for immigrants. Advocates are hopeful that the change promised by President Barack Obama will turn the tide.  Read �


HOLD ON TO YOUR HATS 
Dealing with Foreign Nationals in a Turbulent Economy
The turbulent U.S. economy has affected most everyone, including foreign nationals residing in the U.S. who may find themselves in a position where there is no other choice than to find jobs elsewhere or return home.   Read �


IMPORTANT CHANGES COMING SOON  
Changes in I-9 and Acceptable Documents Delayed Until April 3, 2009 but Still Likely
U.S. Citizenship and Immigration Services (CIS) has amended its regulations governing the types of acceptable documents that employees may present to their employers for completion of the new Form I-9.   Read �


START PLANNING NOW! 
H-1B Visas Available Soon
New H-1B visas for your professional employees will again be available for employment beginning October 1, 2009. CIS will begin to accept H-1B petitions for this employment six months in advance, on April 1, 2009.   Read �


NEW TRAVEL REQUIREMENTS 
Visa Waiver Program Travelers Must Take Extra Steps Before Traveling to the U.S.
Starting January 12, 2009, the Department of Homeland Security (DHS) implemented an Electronic System for Travel Authorization (ESTA), which is mandatory for all nationals or citizens of the VWP countries. Read �

GLG Employer
Compliance Services
  • I-9 Audit / Compliance Review
  • Social Security No-Match Policy
  • Mandatory E-Verify Requirement
  • Worksite Enforcement Policies
  • Pre-hiring, Discrimination and Post-employment Immigration Issues
  • Immigration Hiring and Reimbursement Policies
  • Mergers & Acquisitions Advice
  • H-1B Public Access File Compliance
  • Host an I-9 Webinar for your company
Do You Have Your I-9s in Order?
Whether you hire foreign nationals or not, improperly completed I-9s can lead to hefty fines and even serious jail time.  Grzeca Law Group's team of knowledgeable and helpful attorneys has experience assisting corporate clients with conducting internal I-9 audits, drafting Social Security No Match policies, and ensuring that these documents are compliant with US employment and immigration laws.

Advocates of immigration reform are hoping that the change promised by President Barack Obama will turn the tide of the previous enforcement-only immigration practices and better support America's economic, security and humanitarian interests. While some immigration reform appears to be on President Obama's agenda, the real questions seem to be scope and timing.

The Bush Administration concentrated on the enforcement of existing immigration policies. George W. Bush established the Department of Homeland Security and its sub-agency Immigration and Customs Enforcement (ICE) during his presidency, which focused most of its efforts and spent billions of dollars on worksite and home raids and other enforcement efforts. During his tenure, the Bush Administration announced several controversial immigration policies and regulations such as REAL ID, E-Verify and the Social Security Administration's mandatory steps for terminating employees for non-compliance after receiving no-match letters.

Many are hoping that the new administration will bring much needed changes, particularly because President Obama's campaign promises have consistently included calls for immigration reform.
The son of an immigrant himself, Obama received overwhelming support from immigrant populations that likely helped him win the election, especially in difficult battleground states. In particular, Hispanic voters supported the Democratic ticket in the 2008 election by a margin of more than two-to-one, according to the Pew Hispanic Center.  President Obama does not seem to have forgotten this as his inauguration speech honored immigrants who "traveled across oceans in search of a new life."

Although it is very early in his presidency, President Obama does not seem to have forgotten his campaign promises. According to the White House website, President Obama's agenda includes creating secure borders, improving our immigration system, removing incentives to enter illegally by cracking down on employers, "bring people out of the shadows" by allowing undocumented immigrants to earn citizenship, and working with Mexico to promote economic development and decrease illegal immigration.

The key question is when President Obama will tackle immigration reform. Advocates realize that with war and a struggling economy ahead of him, immediate immigration action is a tough sell. When Americans are struggling to keep their jobs, measures to allow more immigrants to work legally in the U.S. would likely not go over well. In fact, the Pew Hispanic Center reports that only three in ten Latinos rate immigration as an "extremely important" issue facing the incoming Obama Administration, placing it sixth on a list of seven priorities after issues such as the economy and education. The economic stimulus bill is President Obama's top priority.

Advocates of immigration reform, however, are not backing down. One day after President Obama's inauguration, in his first full day in office, advocates across the country from Los Angeles to Milwaukee to Miami rallied in support of immediate changes. Instead of asking for a complete and immediate overhaul, these advocates are focusing on lobbying the President to stop construction on the border fence along the U.S.-Mexico border and resurrecting bills that have lingered for years without approval such as the DREAM Act and AGJOBS. This piecemeal approach does not answer all of the problems with our current immigration system, but many see it as a start to change that can continue over the next four years.

Dealing with Foreign Nationals in a Turbulent Economy

In addition to devastating many U.S. families, the uncertain state of the U.S. economy has also affected many foreign nationals who have come to the U.S. to work. Some have found themselves in a position where there is no other choice than to find jobs elsewhere or return home. From both the employee and the employer perspective, its vital people understand the effects of a termination or lay-off of an individual with immigration related issues. Depending on the current immigration status of the employee, an employer has several options when an employee leaves the company. These situations are briefly described below:

Employees in L-1 Classification: In the event that an employee is terminated, he or she should finalize his or her affairs and depart the U.S. within 10 days. Furthermore, the company should notify U.S. Citizenship and Immigration Services (CIS) that the foreign national's employment has ended.

However, if an L-1 employee is "laid off," the law becomes dependent on the company's internal leave of absence and lay-off policies in determining whether the L-1 status remains valid. In some cases, if there is an expectation of continuing employment, the employee may return to the job using the same visa.

Employees in H-1B Classification: Upon termination of employment for individuals in H-1B Classification, the employer has an obligation to notify the CIS. In addition, if the employee is temporarily laid-off with the intention of returning to employment, the employer must continue to pay the prevailing wage to the employee. The company must also retain the Public Access File (PAF) for one year beyond the last date of employment of the employee and keep any payroll records that were used for the PAF for three years from the date of creation of this file.

By regulation, individuals who held H-1B classification but were terminated have 10 days to depart the U.S. However, if a position is quickly found with a new employer, that employer may petition to "port" the individuals H-1B classification, subject to the discretion of the immigration service.

If the employee is terminated prior to the expiration of his or her H-1B classification, the employer is required to offer to pay for the employee's return trip to their home country.

Employees in TN Classification: Instead of notifying the CIS, employers should contact the officials at the Port of Entry when an employee in a TN Classification leaves the company. The employee should be informed that they should finalize their affairs and depart the U.S. within 10 days. In addition, the company is not required to pay for the employee's return transportation.

Employees in J-1 Classification: In case of termination of employment, the employer is not responsible for the foreign national's return transportation (as they are with the H-1B Classification). However, the employer must notify the umbrella organization responsible for administration of the individual's J-1 Classification of the employee's termination/lay-off.

As the standard procedure, all I-9 records should be kept for at least three years from the date of hire, or for one year once the employee has terminated employment with the company, whichever is later.

Finally, as requirements for each classification differ in relation to terminations and lay-offs, it is important to work with an immigration attorney who can assist you with ensuring compliance. Please contact us if you have any questions or need assistance in this area. Grzeca Law Group is happy to help throughout these difficult processes in order to navigate both the employer and employee through the legal ramifications of hiring and termination practices.
Changes in I-9 and Acceptable Documents Delayed Until April 3, 2009 but Still Likely

U.S. Citizenship and Immigration Services (CIS) has amended its regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9. CIS has also revised the format of Form I-9. Employers must use the new Form I-9 and Lists of Acceptable Documents starting on April 3, 2009.

Although these changes were initially to go into effect this Monday, February 2, the Obama Administration today announced the temporary extension to allow reconsideration of the rule.

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States, and for all employees whose temporary work authorization has expired. List A documents verify identity and employment authorization, List B document verify identity only, and List C documents verify employment authorization only.

Significant changes scheduled to go into effect in April are as follows:

� All documents must be unexpired (previously, expired U.S. Passports and List B documents were acceptable), but a document without an expiration date, such as a Social Security Card, will be deemed unexpired.

� Forms I-688, I-688A and I-688B will no longer be acceptable List A documents, as they are no longer issued and any that were previously issued have expired. CIS now issues Forms I-766 (Employment Authorization Documents or EAD's) to those who formerly received these cards.

� New List A documents consist of a U.S. Passport Card; a Foreign Passport that contains a temporary I-551 printed notation on a machine-readable immigrant visa; and a Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI. In the case of a nonimmigrant alien authorized to work for a specific employer, a form I-94A along with a foreign passport will also be acceptable, subject to certain restrictions.

� A driver's license issued by a Canadian government authority is now an acceptable List B document.

� The Social Security card in List C is now called a Social Security Account Number Card. Such a card is unacceptable if it "specifies on the face that the issuance of the card does not authorize employment in the United States."

� In Section 1 of the I-9, there are now two separate categories for citizens and nationals of the United States in the employee attestation part of the form, and a definition of noncitizen nationals will be added to the Form I-9 instructions.

� The instructions also clarify that some employees may leave the work authorization expiration date blank if they are foreign nationals whose work authorization does not expire (e.g., asylees, refugees, and certain citizens of the Federated States of Micronesia or the Republic of the Marshall Islands).

The new Form I-9 and instructions are available on the CIS website at http://www.uscis.gov/files/form/I-9_IFR_02-02-09.pdf and must be used by employers for all employees hired on and after February 2, 2009. Please note that the Handbook for Employers has not yet been modified to reflect these changes, so any inconsistencies should be resolved by reference to the new instructions and Form I-9.

Please do not hesitate to contact Grzeca Law Group if you or your employees have any questions when completing the new Form I-9 or to schedule a company-wide training either in person or by webinar for all responsible Human Resource Managers.

Fiscal Year 2010 H-1Bs Available Soon - Start Planning Now!

It's never too early to plan ahead.  As you may know, U.S. Citizenship and Immigration Services (CIS) received over 163,000 petitions for new H-1B visas within the first week of filing last year. As a result, the H-1B visa "caps" (totaling 85,000 visas) were immediately exhausted for Fiscal Year 2009 and a lottery system was used to determine which petitions would be accepted for processing. Those not selected were forced into an 18 month holding pattern with no additional opportunities to apply for H-1B visas until this spring.

New H-1B visas for your professional employees will again be available for employment beginning October 1, 2009. CIS will begin to accept H-1B petitions for this employment six months in advance, on April 1, 2009.

As many H-1B positions are in recession-resistant industries and occupations, we expect that demand for new H-1B classifications will remain high this year, and based on previous events, we cannot guarantee that all petitions filed will be accepted by the CIS. However, to ensure that petitions on behalf of your foreign national employees are received as early as possible, our office is planning to send all completed H-1B Petitions to the CIS on March 31st, for receipt on the very first day of filing.

Should your company wish to pursue an H-1B visa for any of your current or prospective employees please contact us immediately so that we can start this process as soon as possible.

Mandatory Travel Requirements for Certain Individuals in Effect Now

Starting January 12, 2009, the Department of Homeland Security (DHS) implemented an Electronic System for Travel Authorization (ESTA), which is mandatory for all nationals or citizens of the VWP countries. Travelers have to obtain ESTA approval before boarding a carrier that is going to the United States. If this step is not done, a B-1/B-2 visitor visa must be obtained in advance of travel.

ESTA will only authorize a traveler to board a carrier for travel to the U.S. under the VWP and the authorization will be valid for two years. DHS cautions that this authorization is not a guarantee of admissibility to the U.S. at a port of entry. In addition, individuals traveling on valid visas will not be required to apply for ESTA authorization.

The web-based ESTA system is available at
https://esta.cbp.dhs.gov. There is currently no fee for the application and the DHS is recommending that ESTA applications be submitted no less than 72 hours prior to travel. Eligibility should be determined almost immediately after submission of this application, and approvals are valid for two years or until the traveler's passport expiration date, whichever is sooner. Anyone who is denied ESTA authorization would have to apply for a visa to enter the United States.

For assistance with the ESTA system, or to determine whether ESTA authorization is needed for your upcoming travel, contact our office.
Grzeca Law Group, S.C. 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.