March 2012

Immigration News + Analysis

Maggio + Kattar

11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com

Work authorization obtained through Temporary Protective Status (TPS) benefits can throw a wrench in an employer's otherwise perfectly executed reverification process.  TPS beneficiaries may still be authorized to work beyond the expiration date on their Employment Authorization Card if USCIS extends work authorization for beneficiaries from their country via a notice in the "Federal Register" (the Federal Government's daily log of goings-on).   Employers, logically, have at least two concerns with this process:

1. How do I know an employee is a TPS beneficiary? (Employers can't ask).  
2. How do I know if their work authorization has been extended (without reading each Federal Register in the hopes of finding something relevant)?

The easy answer to both: an employer doesn't need to know.   An employer should be aware of TPS in general (click here for helpful information from USCIS) and that, when asked to provide updated employment authorization documentation through the normal reverification process, an employee may show the applicable Federal Register Notice.  When work authorization is extended via Federal Register Notice, the employer does NOT need to reverify employment authorization in Section 3 , but rather the employee and employer are to make corrections to Sections 1 and 2 of the Form I-9  and specific instructions regarding how to make corrections are included  in the Federal Register.

In theory, this all sounds easy, but in practice reverification can prove confusing for both the employer and employee.  For more information and helpful fact sheets regarding completing the Form I-9 for TPS beneficiaries contact us.

*.... is a new feature column dedicated to our Employer Compliance clients. To learn more about your updating your compliance program, please contact us.

The Form I-9 can easily become just one of the many forms employers are required to maintain on employees and, thus, rarely comes into the spotlight until something goes awry (like an audit from a government agency).  Preparing in advance for compliance by adopting solutions that successfully marry an employer's legal obligations with the practical realities of business operations can help employers avoid serious issues later.  When you consider how prepared you may be for an audit, are your Forms I-9 practices in need of a little "Spring Cleaning?"  

Here are some tips on how to get started:

First: Be clear on which workers must complete the Form I-9. 

Second: Provide notice to applicants and individuals offered employment. 

+  Applicants: Be sure your application forms include:

Your offer letters should reiterate that employment is contingent upon receiving documentation that satisfies I-9 requirements, and that an employee who is temporarily authorized to work, must provide evidence of their updated authorization upon expiration of the previous authorization.

Both of these notices will help support any actions you may be required to take later should termination of employment be required due to their failure to provide appropriate work authorization documentation.  If you are an employer who participates in E-Verify, there are other notices you will be required to provide.

Third:  Adopt practices that ensure that you are using the correct version of the Form I-9 for new employees and re-verifications.  The Form I-9 changes from time to time.  The current version expires in August of this year.  When the form version changes, you do not need to go back and update your old records, but you do need to be sure that you use the new version for all new activity (hires and rev-erifications) going forward.  USCIS has a handy editable .pdf version of the current form online at www.uscis.gov/files/form/i-9.pdf.  Make it your practice to work off the online form.  We also recommend that employers pre-fill the title, printed name and the name and address of the business in the .pdf form before it is printed.  Forgetting to write in the business name and address is one of the most frequent errors employers make.

Finally: Define your Recordkeeping and Retention Practices.  The HR mantra, "if it isn't in writing it doesn't exist" applies here.  Below are several things to keep in mind when defining your Recordkeeping and Retention Practices:

+    Keep it Simple

+    Define a practice that allows you to easily ensure consistency,  such as a single record keeper, and single business address for all forms, if possible. 

+    Only keep what you are required to keep.  If your practice is to retain copies of the documents used to complete Section 2 of the Form I-9, be sure that the copies are ONLY of the documents in Section 2.

+    Keep it Separate

+    Don't mingle your Forms I-9 with personnel files, and keep the forms in one place only.

+    Keep it Current

+    Train individuals responsible for completing Section 2 of the Form I-9 regularly (at least upon hire and with every form change) to ensure their I-9 skills stay up-to-date.

+    Use the current version of the Form I-9 for new hires and reverification.

+    Create a system to monitor expiring work authorizations and ensure timely reverification.

+    While not required, it is recommended that you keep up with name changes in your I-9 records. We've found that this practice also corresponds nicely with an employer's practices with regard to Social Security "No Match" letter prevention and response.

+    Keep it Clean

+    Audits should be performed by either an outside auditor, such as Maggio + Kattar, or an in house auditor who is an I-9 expert, but does not regularly execute I-9s.

+    Remove I-9s for former employees after the longer of 3 years from their hire date or one year from termination. These old forms might contain errors, so the more you can get rid of  -- and thus keep them out of an audit -- the better.

+    Keep it Handy

+    Some employers, especially larger ones, are moving to electronic storage of Forms I-9.  Whether you keep your Forms I-9 in original paper, microfiche or electronically, make sure you system allows for easy access for self-audits as well as audits by the government. 

Many noncitizens come to the United States to open new businesses.  These businesses represent not just a new country and a new opportunity but a tool that can be used for social benefit as well as an engine of economic growth.  It is a sign of maturity when a company grows past thinking of good corporate citizenship only in terms of donating money to a cause or creating a Corporate Social Responsibility office in their headquarters to full-fledged social entrepreneurship.  The most fundamental form of social entrepreneurship in which a company can engage involves committing to a cause from the moment of a company's creation.  In the United States, there is a new corporate form that is uniquely suited to such social entrepreneurialism - the Benefit Corporation.

What in the world is a "Benefit" Corporation?

A Benefit Corporation (not a B Corp, which is a certification, not a corporate form) is a for-profit company that chooses to include a mandate to create a public benefit in its corporate charter.  It is a new class of corporation that voluntarily meets higher standards of corporate purpose, accountability, and transparency.  Currently Benefit Corporations can be formed in Maryland, Virginia, New York, California, Hawaii, New York, and New Jersey.

Benefit Corporations:

• Have a corporate purpose to create a material positive impact on society and the environment;    
• Are required to consider the impact of their decisions not only on shareholders but also on workers, community, and the environment; and     
• Are required to make available to the public an annual benefit report that assesses their overall social and environmental performance against an independent third party standard.

Directors of Benefit Corporations are legally immune from lawsuits claiming that they have breached their duty to the company by failing to follow a strict profit-maximization doctrine.  This is an important feature for companies that are deeply committed to social entrepreneurialism, as it frees directors to pursue a balanced corporate agenda.

Forming as a Benefit Corporation rather than a traditional C corporation also makes it more difficult to divert the company's commitment and resources away from creation of a social benefit.  This makes it easier to help ensure that a company's mission of "doing well while doing good" is preserved through changing generations of corporate ownership and control.  For immigrant investors, this stronger protection of their hard-earned corporate legacy will provide a powerful incentive to house their corporate dreams in a Benefit Corporation, with all the innovations and protections it offers.

** Maggio + Kattar thanks Laura Jordan of the Capital Law Firm for sharing this information with us on Benefit Corporations. Laura formed one of the first Benefit Corporations in the United States and lectures and writes extensively about this new corporate entity.

United States Citizenship and Immigration Services will start accepting H-1B cases subject to the annual cap beginning on Monday, April 2 for an October 1 start-date.  Cap-subject petitions are subject to an annual 65,000 numerical limit and an additional 20,000 slots are available for individuals with U.S. master's degrees or higher.  If USCIS receives more petitions than it can accept - in recent years the H-1B cap has taken several months to meet (November 2011 for FY 2012, for example)- it will announce a final receipt date and randomly select cases to be included in the cap and reject other petitions.  Of course, many H-1B petitions are exempt from the cap, including those on behalf of H-1B workers previously counted against the cap.

Advance planning is especially critical as a required component of the H-1B application.  The Labor Condition Application (LCA) filed with the U.S. Department of Labor (DOL) takes up to seven to ten days to be adjudicated, where in the recent past, the certification was virtually instantaneous.  Additionally, with the DOL's new LCA system, a required resubmission is sometimes necessary, especially for employers who have previously never filed an H-1B.

If you have any questions about how the H-1B quota may impact your foreign national population, please contact us. 

There is still time for you to join us in honoring Immigration Equality at our fourth annual Founders Day event on the evening of Wednesday, March 28th.   Immigration Equality is a national organization whose core mission is fighting for equality for lesbian, gay, bisexual, transgender, and HIV-positive individuals under U.S. immigration law through its advocacy efforts and legal aid provided by a network of dedicated attorney volunteers.  

Immigration Equality, to date, has been responsible for numerous important policy victories including ending the ban on immigration and travel for people with HIV.  Its two complementary roles-as lawyers providing free legal counsel to thousands of LGBT/HIV-positive immigrants each year, and as advocates pressing for policy changes to end the discrimination their clients face, make Immigration Equality a uniquely qualified and an effective champion for LGBT/HIV-positive immigrants.  We believe that Immigration Equality embodies the same ideals and visions of our founders, the late Michael Maggio and Candace Kattar. 

Since its inception, Immigration Equality has helped hundreds of immigrants win asylum in the United States based on their sexual orientation, transgender identity, and/or HIV-positive status.   Immigration Equality has published the leading guide to preparing sexual orientation-based asylum claims, and has trained hundreds of attorneys, advocates, and Immigration employees on this specialized area of the law.

We hope that you can join us as we celebrate our firm's founders, the Candace Kattar and the late Michael Maggio, and to honor the dedication and commitment of Immigration Equality to advancing the cause of LGBT/HIV positive immigrants and their families.  In addition to remarks by Immigration Equality Director, Rachel Tiven, the evening will feature music performed by internationally renowned harpist, Michaela Trnkova and Lebanese hors d'ouvres.  To RSVP for Founders Day or to donate to Immigration Equality, please visit Immigration Equality's dedicated response page.   

MAGGIO + KATTAR is pleased to announce that its second quarterly Immigration Community Forum will be held on Wednesday, April 25, 2012 from 9 - 11 a.m.  The firm invites area practitioners and community organizations to this forum moderated by Maggio + Kattar Shareholder Anna Gallagher and including the following subject matter experts:  James Botluk, Assistant Bar Counsel, Attorney Grievance Commission of Maryland;  Elizabeth Herman, Deputy Bar Counsel, District of Columbia Office of Bar Counsel; and, Thomas Mason, Partner and Legal Profession and Ethics Co-Chair, Zuckerman Spaeder LLP.

This Immigration Community Forum will cover pressing ethical concerns for immigration law practitioners from initial engagement to the conclusion of representation.  Our panelists will address the following problem areas:

Our expert panel will discuss the most frequently filed bar complaints, which involve attorney communication, competency, and truthfulness.  They will also share best practices to avoid common ethical pitfalls.

Please join us in our 5th Floor Conference Room for a continental breakfast at 9 a.m., immediately followed by the panel.   RSVP to: events@maggio-kattar.com.  Maggio + Kattar, 11 Dupont Circle, NW, Washington, DC 20036.  

Jim Alexander was interviewed by Acquisition International for a profile piece on selection of immigration firms that appeared in their March 2012 edition. 

Jim Alexander was selected for inclusion in the 2012 Chambers USA survey of the Best Immigration Lawyers in the U.S.

Maggio + Kattar provides Immigration News + Analysis as a service to its clients and friends to highlight and provide opinions on changes within the field of immigration and nationality law. The information contained in this newsletter is not intended as legal advice, and persons receiving this information should not act on it without consulting professional legal counsel.


Maggio + Kattar, P.C. | 11 Dupont Circle, N.W. Suite 775 | Washington, DC 20036
maggio-kattar.com | phone 202.483.0053 | fax 202.483.6801

Copyright © 2012 Maggio + Katter, P.C. | All rights reserved.