Maggio + Kattar

DHS Announces Important Changes in Processing Unlawful Presence Waivers 

On January 6, 2012 the U.S. Department of Homeland Security (DHS) announced proposed regulatory changes to the processing of unlawful presence waivers for certain family members of U.S. citizens.  Once implemented, the proposed rule will allow for a U.S. based processing of unlawful presence waivers for certain foreign nationals who currently must travel abroad to apply for these waivers to obtain U.S. lawful permanent residency.  The purpose of this change is to reduce the amount of time family members must be separated during the immigrant visa and waiver application process.  The proposed rule will be published in the Spring of 2012 for public comment and the final rule is expected by the end of the year.

The Current Procedure for Processing Unlawful Presence Waivers

Upon departure from the U.S., foreign nationals who have accrued more than 180 days of unlawful presence in the U.S. are subject to a 3 year bar to readmission.  Foreign nationals who have accrued more than one year of unlawful presence are subject to a 10 year bar to readmission.  

The unlawful presence bar is only triggered if the foreign national leaves the United States.  However, many foreign nationals with approved family-based visa petitions must leave the United States in order to obtain permanent residency.  This is because they are ineligible to apply for a green card in the United States due to certain events in their immigration history.   For example, foreign nationals who entered the U.S. without inspection must apply for permanent residency at a U.S. consulate abroad.  The unlawful presence bar to readmission can be excused by a discretionary extreme hardship waiver available to applicants who can establish that their U.S. citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the applicant's U.S. lawful permanent residency application were denied.  For foreign nationals who must apply for permanent residency abroad, the waiver is submitted at the time of their immigrant visa interview.  The waiver adjudication process can take months or even years, during which time the foreign national is barred from re-entering the United States.  

Proposed Changes

The proposed rule is intended to prevent families from suffering prolonged separations.  Under the proposed rule, a foreign national would be eligible to apply for a provisional waiver of the unlawful presence bar in the United States if he or she is a beneficiary of an approved visa petition by a U.S. citizen, classifying him or her as an "immediate relative," and the Foreign national demonstrates that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent.  An immediate relative is the spouse, child under the age of 21, or parent of a U.S. citizen.  Sons and daughters of U.S. citizens must be 21 years old in order to petition for their parents.  

Upon issuance of the provisional waiver, the foreign national would still need to depart the U.S. to apply for an immigrant visa through the U.S. consulate in his home country.  However, with the waiver already in hand, the immigrant visa process will be much faster.  In addition to minimizing hardship to U.S. citizen family members brought about by prolonged separation, the possibility of a provisional waiver is welcome news for foreign nationals who face dangerous circumstances in their home countries.   While these proposed changes are a tremendous development and offer significant benefits for family unity, we are hopeful that similar consideration will be extended to included for lawful permanent residents as qualifying relatives, as well as U.S. citizens   

Foreign Nationals Who Are Not Included in the Proposed Rule

As noted above, this proposed rule does not benefit the spouses and children of lawful permanent residents, and hardship to lawful permanent resident family members would not be relevant to the provisional waiver application.  Additionally, foreign nationals facing grounds of inadmissibility aside from unlawful presence (criminal offenses, fraud, etc.), would be ineligible for the provisional waiver.  The proposed rule also excludes individuals with pending unlawful presence waiver applications for unlawful presence waivers and those in removal proceedings.  

In these cases, the existing waiver application process outside the U.S. would be the only option.  

Next Steps

The next step is for DHS to issue a Notice of Proposed Rulemaking (NPRM) to include the provisional waiver proposal and invite public comment.  The final rule is expected to be implemented by the end of the year.  Until the final rule is published, applications for provisional waivers will be rejected.   We strongly encourage DHS to expedite the proposed timeline for the final implementation of the rule.  We hope that DHS will continue their outreach efforts within the immigrant community to combat the rumors being spread that do not necessarily accurately reflect the proposed changes.   

Global Spotlight: France*

Who doesn't want to take a business trip to the fabulous City of Light?  Before you book your one way ticket to Paris and pack your bags, a few things you will want to know....

Business Visitors:

A business visitor should not be engaged in any "productive" employment while in France.  Specifically, a foreign employee may come to France as a tourist or business visitor without obtaining prior authorization, but may not have the intent to start a professional mission for which a work permit application is under process with the French authorities.

Work permits

Every non-EU (European Union), EEA (European Economic Area) and Swiss national, who wishes to perform a salaried activity in France, should first obtain a work permit in most cases, regardless of duration of stay and the place of compensation.

A salaried activity subject to French work permit implies the existence of an employment contract, which, in its turn, implies the performance of a job, the payment of a remuneration and, most significantly, the existence of reporting lines.

The estimated processing times for obtaining work permits are:  

• Short term work permit (90 days max): from 1 to 4 weeks from the filing of the complete application file, to the issuance of the work permit. Then, the employee, depending on whether s/he is a visa national or not, may apply for an entry short stay Schengen visa at the appropriate French consulate.
•  Long term work permit (greater than 90 days): from 8 to 12 weeks from the filing of the appropriate application file, to the sending of the file to the competent French consulate, where the employee will apply for a long stay visa. Some accelerated procedures are also applicable, depending on the immigration status.

There are several types of work permits in France, depending mainly on whether or not there is an employment contract with the entity established in France or not.  For example, an employee who will be a full fledged member of a French entity (employment contract for a finite period) and should not be paid less than someone in the same position with the same background and performing the same daily duties in France.   Similar to the PERM labor certification process in the U.S, the employer must demonstrate that no French (or EU) candidate who already has the right to work in France can fit the position proposed in the work permit application. There are, however, some exceptions: intra-company transferees; positions officially listed by French authorities for which there is not enough qualified labour force; EU blue card applicants; skills and talents permit applicants for performing a salaried activity, etc.).

EU Blue Card

The EU Council Directive 2009/50/CE has implemented the EU blue card in Francce (and will do so in every other EU member state). Its aim is to facilitate conditions of entry and residence in the EU of third-country nationals for the purpose of highly skilled workers.  Generally, a local French employment contract of at least 1 year is necessary and the candidate should receive a minimum annual gross salary, which currently amounts to around 51,450 Euro. This permit is not tied to the employer who has sponsored the application, can be issued for a maximum duration of 3 years, is renewable, and the accompanying spouse can obtain an open permit in France allowing the performance of any kind of paid professional activity, salaried or not.  After eighteen months spent under cover of the EU blue card in the first member state, the employee and his family members may move, under certain conditions, to another EU member state for the purpose of a highly qualified employment. In France, the EU blue Card holder may qualify for an EU long-term residence permit after living in the EU for five years, of which the last two must be in France.

To learn more about French work permit exceptions including trading permits and foreign corporate officer permits, intracompany transfers and "detache" or employment options for those employees that do not have an employment contract with a French company, please contact us.   

 *Maggio + Kattar's Global Immigration Practice is excited to present the third quarterly jurisdictional profile and we would like to thank our partner, Anthony Pajot for his contribution to our Global Spotlight on France.  Working directly and through our dedicated partners around the globe on business visas, Maggio + Kattar facilitates international visa transfers for individuals and corporations.  Please contact Global Practice Chair, Anna Gallagher, for more information on a global visa matter.    

Administrative Review Board Awards Backpay For Unemployment Resulting From Employer's Requirement of a Social Security Card; Reiterates that Effective Termination of Employment Only Cccurs when USCIS is Notified

In Matter of Univ. of Miami (decided 12/20/11), the Administrative Review Board (ARB)made two notable findings in determining an employer's responsibility for back pay.  Specifically, the ARB found that that the employee, Dr. Wirth, was entitled to pay for two weeks of involuntary non-productive time from when she entered the U.S. until she received her Social Security Card. The University  informed Dr. Wirth that she needed to obtain the Social Security Card and that it was a condition of beginning employment.  In addition, the ARB reaffirmed a previous decision holding that employee termination only becomes effective as of the date USCIS is notified and, thus, the ARB found the University of Miami was liable for back pay from the date of actual termination until USCIS received the notice, which was several months later.

This decision is a reminder to employers that creating requirements, such as receipt of a Social Security Card, can cause the employer to be liable for additional wages if it delays a new H-1B worker's employment start date. In addition, the ARB's finding on the effective termination date is notable. Even though the University terminated and communicated the termination to Dr. Wirth on numerous occasions, it did not effect the termination for purposes of its wage obligations under the Labor Condition Application until USCIS was notified of the termination.  

El Salvador Temporary Protected Status Extended for 18 Months through September 9, 2013 

Temporary Protected Status ("TPS") has been extended by Department of Homeland Security Secretary Janet Napolitano for eligible nationals of El Salvador for an additional 18 months, beginning on March 10, 2012, and ending Sept. 9, 2013.
 
Current Salvadoran TPS beneficiaries seeking to extend their TPS status must re-register during the 60-day re-registration period prior to March 12, 2012.   The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD) valid until September 9, 2013.   As USCIS understands that all re-registrants may not receive their new EADs until prior to the expiration of their current EAD, USCIS is automatically extending the current TPS El Salvador EADs that bear a March 9, 2012, expiration date for an additional six months, through Sept. 9, 2012.    

What You Need to Know About I-9 Compliance in 2012 

A continued zealous focus on corporate I-9 compliance by the Department of Homeland Security's Immigration and Customs Enforcement (ICE) offers the most compelling reason to start the year off right with an internal I-9 audit. ICE has indicated that it intends to audit 3,000 employers in this fiscal year.  This means that even if your company has not previously been the subject of one of thousands of audits conducted by ICE over the past several years (which have resulted in millions of dollars of fines), there is still a very real possibility that your company will be audited in the coming months and years.
 
Since the implementation of the Immigration Reform and Control Act of 1986 (IRCA), U.S. employers have been tasked with ensuring that they hire and employ only individuals legally authorized to work in the U.S.   Although the I-9 Form on which the evidence of U.S. employment authorization is recorded  has existed, in various iterations, for nearly twenty five years, employers continue to struggle with completing the form in a proper and timely manner.  In the last few years, the federal government has initiated I-9 audits with increased vigor as a result of both substantially increased funding and public debate about illegal immigration.   The audits continue to include companies of all sizes across industries and geographic areas with a continued focus on so-called crucial infrastructure companies (transportation, food, energy, chemical production, among others).  These audits should cause companies of all sizes and across the entire U.S., to review and re-think their I-9 compliance strategies.

We believe that one of the most important facets in I-9 compliance is training.  Although the I-9 form appears deceptively simple, there are a range of issues that can develop in a company's completion and maintenance of I-9 forms, including both substantive and procedural or technical violations.  An HR or legal professional tasked with this important compliance responsibility must first and foremost understand how and when to complete an I-9 form.  Then he or she must also understand how to track an I-9s that require re-verification and ensure that timely updates are made to expiring work authorization.  Finally, he or she must ensure that the I-9s are completed only by individuals who are familiar with the company's I-9 procedures so that the forms are completed accurately and in a timely manner.  

It has been our experience that often companies that believe their I-9s have been properly and on time are often unpleasantly surprised when they conduct an internal audit, come to find that certain I-9s may not have been taken or that records of long term employees may have been lost.    In our experience, these types of errors far exceed the number of I-9s for employees who are not work authorized or have been completed using improper documentation.   

To learn more about our Employer Compliance training, audit programs and related compliance services, please contact John Nahazjer or the legal professional that you work with at Maggio + Kattar. 

Department of State February 2012 Visa Bulletin Shows Continued Dramatic Improvement for Second Preference Visa Numbers for India and China  

In the State Department's monthly Visa Bulletin indicates, we saw more forward movement in the second preference immigrant visa category for nationals of India and China. The Visa Bulletin sets forth which individuals may apply for lawful permanent residency by filing an application to adjust status in the U.S. or consular processing at a U.S. embassy or consulate.  An individual's priority date is the date the underlying immigrant visa petition (I-140 or I-130) was filed or, in certain employment-based cases, the filing of the PERM labor certification application. 

There has been a backlog or delay in immigrant visa applications for lawful permanent residency in certain categories, including the employment based second (India and China, in particular) and third preference category for several years.  In February 2011, visa numbers in the second preference category are available to individuals born in India and China who filed prior to or on January 1, 2010.  This reflects a dramatic improvement even over the past few months.  In December visa numbers were available to those nationals who had filed prior to or on March 15, 2008.  This past September,  those nationals who had filed on April 15, 2007 or earlier received visa numbers.  A year ago last February, visa numbers were available to Indian nationals who had filed on or before May 8, 2006 and Chinese nationals who had filed on or before July 1, 2006.  The State Department's Visa Office noted in the February 2012 Visa Bulletin that a slow-down in applications filed is responsible for the rapid priority date advance from the United States Citizenship and Immigration Services (USCIS) for adjustment of status.  An increase in filings could result in retrogression by the end of this fiscal year (September 30, 2012).

In the coming months, the third preference category is expected to continue moving forward as much as a month for individuals in the China, Mexico, Philippines and worldwide category, and two weeks for applicants born in India.    

Maggio + Kattar Nationally Ranked in U.S. News and World Report's 2011 Review of "Best Lawyers"

Maggio + Kattar has again been nationally ranked among the top immigration law firms in the U.S.   Additionally, Maggio + Kattar was ranked in the first tier of all immigration law firms in the District of Columbia.   

M+K Attorneys About Town

John Nahajzer and Alix Mattingly presented a Business & Legal Resources (BLR) webinar on January 17th titled "No-Match Letters, I-9s & E-Verify: How to Master HR's Toughest New Immigration Challenges. His corresponding article on the subject is featured on the BLR website.

Dree Collopy  is speaking at Catholic University of America, Columbus School of Law on January 30th regarding the Department of Homeland Security prosecutorial discretion memorandum and joint Department of Justice and Department of Homeland Security pilot program in Denver in Baltimore to review cases pending in immigration court.

Dree Collopy will be speaking at the American Bar Association Commission on Immigration's Pro Bono Training on The Essentials of Immigration Court Representation in New Orleans, Louisiana on February 1, 2012.  She will be presenting on "Introduction to Immigration Court Proceedings" and "Appeals to the BIA and Circuit Courts."

Stephen Pattison and Anna Gallagher have been invited to participate in the 2012 American Immigration Lawyers Association Annual Conference on Immigration Law to be held June 13-16, 2012.  Stephen Pattison will lead a discussion on How to Effectively Communicate with Consular Posts.  Anna Gallagher will speak on Prosecutorial Discretion: How to Deal Effectively with ICE and CBP. 

Maggio + Kattar's First Quarterly Immigration Forum for 2012

"Immigration Consequences of a Criminal Conviction:  An Update on the Continuing Implications of Padilla v. Kentucky"   will be held on Wednesday, January 25, 2012 from 9 - 11 a.m. at our offices. The forum will feature a panel of immigration and criminal law experts who regularly collaborate regarding the complex intersection of criminal and immigration law.  Our panelists will provide important guidance on the following topics: how noncitizens with criminal issues are targeted for immigration enforcement; a brief overview of criminal counsel's obligations post-Padilla; an introduction to accurately reading criminal court documents and police records; obtaining complete court records in Maryland, Virginia, DC, and beyond; working with police to deal with outstanding warrants; and, effective collaboration between immigration and criminal counsel on pre and post conviction strategies. 

The featured panelists will be Paromita Shah, Associate Director, National Immigration Project; Craig Hickein, Staff Attorney - Trial Division, Public Defender's Service for the District of Columbia; James Johnston, Supervising Attorney, Youthful Defendant Unit, Maryland Office of the Public Defender; and Maggio + Kattar Shareholder, Anna Gallagher.  The event will be held in our 5th Floor Conference Room with for continental breakfast beginning at 9am and the forum discussion immediately following.   

RSVP by email to: events@maggio-kattar.com or by phone at 202-483-0053.  Maggio + Kattar, 11 Dupont Circle, NW, Suite 775, Washington, DC 20036.