July / August 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

 

The Form I-9 is just one of a thousand processes each business must maintain and monitor. It is impossible to know exactly when the new form will be released, but there are some steps that businesses can proactively take to lessen the disruption and negative impact on productivity that may occur when the new forms arrive.

 

The basic concepts of the Form I-9 are not going to change. If your organization's HR and Legal Team are already well trained on the requirements of employment eligibility verification and you have a consistent and simple process in place, any changes to the format or small details will be easy to assimilate without any disruption to other projects that may be going on.

 

1.  Make sure that there is a solid process in place and everyone who completes the I-9 on behalf of the employer is identified.
    
2. Ensure that those identified employees are properly trained - the basic concepts of the Form I-9 are not going to change - just the format and other relatively small details. The more comfortable they are with the process the easier it will be to introduce a new Form.
    
3. Know what your strengths and weaknesses are with Form I-9 Compliance - create a plan to start addressing those.

 

If you have questions on what you can be doing now, please contact the immigration professional that you work with at Maggio + Kattar, we would be pleased to assist.

In early July, the U.S. Department of Labor (DOL) published a notice in the Federal Register of proposed changes to the Labor Condition Application (LCA). The LCA is a required component in the filing for non-immigrant visa applications in the E-3, H-1B and H-1B1 categories. At present, the LCA (DOL Form 9035) is submitted via the DOL's iCert portal and it takes about 7 days to receive the form adjudication.   Prior to the implementation of this system, LCA adjudication was also done on-line, but typically concluded in a matter of seconds rather than the 7+ day processing times.  

 

The DOL is now, once again, revising the LCA form and expanding its information gathering, noting, in its supporting statement, that the changes are based on a desire to improve the "integrity review and ensure the accuracy and completeness of the information."  Key changes to the form include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the nonimmigrant worker is an exempt employee or if not exempt, specifying the employer's recruitment efforts to recruit US workers; and requiring the employer to list the address where the employee's public access file is kept.   

 

One challenging proposed revision would require employers to provide significant, additional information on the intended beneficiaries of the LCA. Specifically, the form would seek information on the proposed non-immigrant beneficiaries such as the names, date of birth, city and country of citizenship and current visa status, as well as information on whether the individual has filed a PERM labor certification application. These time consuming additions to the forms are disappointing given that employers already face challenges with DOL processing times on prevailing wage requests, PERM applications (and audits) as well as the LCA.  

 

Another cumbersome requirement that employers will face if the proposed new LCA form is implemented as proposed is with respect to identifying all of the proposed work locations at the outset of the H-1B process. Often, new employees are hired with a general idea of the assignments they will fulfill. Over the course of the visa's three year time period companies will become more familiar with an employee's skill set and may acquire differing contracts and business obligations, requiring employees to work temporarily at other worksites. Employers often work diligently to be as proactive as possible in identifying work sites, but the new form will allow for little flexibility for instances where an employee is required to move to another location, even within the same geographic area. It is unfortunate that in this tough economic climate when companies have a greater need for a highly flexible and mobile workforce the DOL is using this opportunity to make worksite mobility more challenging for employers.  

 

Additionally, although apparently unrelated, there is proposed legislation which will grant the DOL the ability to deny LCAs based on certain undefined indicators of alleged fraud and hold up the processing of non-immigrant visa applications.

 

We urge the public to submit their comments to the DOL during the comment period running through September 7th to address some of the burdensome additional requirements.

In June 2012, the Obama Administration announced that certain non-citizens would be eligible to apply for Deferred Action. The announcement by the Department of Homeland Security (DHS) noted that further guidance to implement would be announced within 60 days.

According to documents obtained by the Associated Press -- marked by DHS as "not for distribution" -- the application process will include filing a form titled "Request for Deferred Action for Childhood Arrivals."   The filings for this status will begin on or about August 15th and will allow the applicants to request a work permit. It is proposed that the application will carry a filing fee of $465.  

 

Note that subsequent to the document leak to the Associated Press, a spokesman for DHS noted that the plans were "preliminary documents."    

 

Once the applications are received and entered into the electronic system, United States Citizenship and Immigration Services (USCIS) will schedule a biometrics appointment for each applicant at an Application Support Center (ASC). Following the completion of biometrics, a background check would be performed on each applicant as well as an analysis of eligibility by USCIS. If an individual were deemed qualified, the application would be granted and ultimately a time limited Employment Authorization Document (EAD card) would be issued. The entire process may take upwards of four months.  

 

As a result of large numbers of applicants, we strongly urge our clients and current applicants for other types of applications (such as legal permanent residence and naturalization) that require biometrics processing to keep any existing appointments, as rescheduling may become cumbersome after The Deferred Action requests start being processed at the ASCs.  

 

If you have further questions on Deferred Action, please contact the legal professional you work with at Maggio + Kattar.

At a time when federal authorities continue to increase workplace enforcement activities, employers should implement, review, and consistently maintain and execute immigration compliance programs to minimize potential risks, liability exposure, and debarment.  Enforcement and compliance monitoring has noticeably increased in almost all employment-based immigration cases in recent years, including PERM labor certification.

 

In the permanent labor certification context, a Department of Labor (DOL) audit can result in a request to review all or part of the employer's case file and the recruitment undertaken for the submitted PERM application. Audits can arise from the position's minimum requirements or other items in the labor certification application, or they can be random. An employer has 30 days to respond to the audit request and, after a review of the documentation, the DOL can request additional documents, order supervised recruitment, or approve or deny the case.

 

Supervised recruitment can occur in the post-filing (converted) and pre-filing (directed) context. The former is more typical, with the DOL ordering supervised recruitment after receiving an audit response or as part of mandated supervised recruitment when an employer has failed to respond to an audit letter. In addition, the DOL can direct supervised recruitment for all or some of an employer's labor certification applications at the outset, without any recruitment being conducted.

 

According to recent DOL statistics and statements to the American Immigration Lawyers Association, supervised recruitment will expand and DOL will use this tool as part of its integrity measures to detect and prevent fraud and misrepresentation in employment sponsorship cases.  Statistics available thus far for FY2012 indicate an increase in supervised recruitment cases:

  

(*Figures are rounded from a specific point in time.)

 

The basis for mandating supervised recruitment can arise from  "labor market information" or, more typically, when the DOL Certifying Officer determines that "the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application." Recent Board of Alien Labor Certification Appeals decisions dealt with supervised recruitment cases for a financial analyst, design engineer-mechanical, and Vice President, Mergers and Acquisitions.

 

Under supervised recruitment, the DOL sends the employer a Notification of Supervised Recruitment and requests the employer to provide draft advertisements for review. The DOL's Recruitment Instructions will then instruct the employer regarding the placement and duration of advertisements, which must be placed within 15 days of the DOL's recruitment notice. Once the recruitment is in place, applicants submit requested documentation to the DOL, which then forwards it to the employer with a Notification of Resumes Received. Finally, the DOL will send Recruitment Report Instructions to the employer indicating that the recruitment period has ended and requesting copies of recruitment methods and a more-detailed recruitment report, which must all be submitted within 30 days of the notice. The recruitment report must include the names and address of all U.S. applicants.

 

The DOL is authorized to review an employer's case file and all documents associated with a PERM application for a period of up to five years from the date the application was submitted. In essence, this is a window during which an approved labor certification application may be investigated by the DOL, Department of Homeland Security, or Department of State to ascertain whether fraud or willful misrepresentation of a material fact was involved in the labor certification application process.

 

For advice on dealing with supervised recruitment and PERM labor certification, contact a Maggio + Kattar attorney.

Some U.S. business travelers to India who had grown accustomed to receiving multiple entry, five and ten-year validity visas from Indian embassies and consulates have been surprised recently to receive significantly shorter validity visas, as short as six months. The U.S. Minister Counselor for Consular Affairs in New Delhi, Jim Herman, discussed the development at a recent Business Executive Program (BEP) meeting in Bangalore.  Under U.S. reciprocity rules, visas granted to citizens of foreign countries are valid for the same period of time as those issued to U.S. citizens visiting those countries for the same purpose.   The Department of State (DOS) is raising the situation with the Indian government to determine if it is an isolated phenomenon or reflects a shift in Indian visa procedures.   If the practice continues and U.S. business travelers are no longer able to obtain five and ten year business visas to India, reciprocity will require the DOS to instruct U.S. embassies and consulates to restrict B1/B2 visa issuances to Indian nationals to six months.

On July 1, 2012,  the U.S. visa renewal program in Mexico was expanded to allow persons to obtain a new visa without having to schedule an interview with a consular officer, if they were applying for the visa within 48 months of their prior visa's expiration date.  Previously, the visa renewal program was only available to persons whose valid visas had expired within 12 months of the date of reapplication. 

 

Under the renewal program, visa applicants can submit their renewal application for the same visa category and their biometrics by appointment at one of the Application Service Centers in Mexico and do not have to make a follow-on appointment to speak with a consular officer.  By reducing the need for frequent travelers to schedule visa appointments, the expansion of this program will have a significant impact on visa workloads at the U.S. Embassy in Mexico City and at the various U.S. consulates throughout Mexico, and will facilitate the travel to the U.S. of tens of thousands of legitimate frequent business travelers and tourists from Mexico.  

On July 12, 2012, the Department of State announced that U.S. consular officers in China have processed one million visa applications to date in fiscal year 2012, while at the same time reducing visa appointment wait times to approximately one week.  The total so far this fiscal year is more than 44% higher than in fiscal year 2011, when only 675,000 applications had been processed by the same date. In addition to the U.S. Embassy in Beijing, U.S. consulates in Shenyang, Guangzhou, Shanghai, and Chengdu provide non-immigrant visa services.

 

The announcement comes at a time of unprecedented increases in non-immigrant visa applications in China, Brazil, and Mexico, which are the U.S. missions with the highest volume of visa issuances.  Mission Mexico has seen a 36% increase in visa applications over the previous fiscal year, while the increase in Brazil has been almost 44%.  Mission China and Mission Mexico will both process more than one million visa applications in FY 2012, while Brazil is on track to exceed one million by the end of the fiscal year on September 30, 2012.

Join Maggio + Kattar Managing Shareholders for "Immigration Law Update: From I-9 to E-Verify: How to Master HR's Newest Immigration Challenges"

 

On August 8th, Jim Alexander and John Nahajzer, in collaboration with the Employer Resource Institute, will present on how to handle everything from I-9 Compliance to E-Verify, how to respond to a government audit and what the possible penalties are for non-compliance. To learn more about some of these topics or the webinar, click here.  

 

Join Maggio + Kattar Attorneys at the District of Columbia Bar Association's Continuing Legal Education Program for an Immigration Practice Clinic on Immigrant Visas

 

On August 9th, Maggio + Kattar attorneys Monique Van Stiphout, Elizabeth Quinn and Jim Alexander will collaborate with government and private practice attorneys on how to prepare and file PERM applications, Immigrant Visa Applications and Adjustment of Status or Consular Processing applications.  To learn more or to register, click here. 

 

Maggio + Kattar and INS Zoom Collaborate on I-9 Compliance Webinar: I-9 Best Practices from Maggio+Kattar

 

On July 26th, Maggio + Kattar and INS Zoom presented a webinar on I-9 Best Practices. The webinar featured Maggio+Kattar's unique, client-centric approach to I-9 compliance. Highlighted were our focus on creating and re-vamping corporate I-9 programs to be proactive over reactive in all facets of the compliance process. Leading the creation of Compliance Policies and Procedures is M+K Director, Theresa Nahajzer, who leverages nearly two decades of HR leadership experience to partner with the firm's clients on defining and implementing a manageable I-9 policy, engaging with clients for the on-going training of all personnel involved in the I-9 process and leading a results oriented program.

 

To learn more about Maggio + Kattar's compliance practice, or for a copy of the presentation, please feel free to contact us at events@maggio-kattar.com

 

Maggio + Kattar Attorneys Alix Mattingly, Steve Pattison, Mark Yelich and John Nahajzer  

 

On July 19, 20012, Alix Mattingly, Steve Pattison, Mark Yelich and John Nahajzer joined forces with government and private practice attorneys the District of Columbia Bar Association's Continuing Legal Education Program in their inaugural Immigration Law intensive on non-immigrant visas. The program included the preparation and presentation of important topics such as consular interviews for non-immigrant visas as well as in depth training on L-1, H-1B, E-3, and TN visa types.

 

Steve Pattison Elected Chair of the Rome District Chapter of American Immigration Lawyers Association

 

Steve Pattison has been elected Chair of the Rome District Chapter of the American Immigration Lawyers Association.  The Rome District Chapter represents U.S. immigration attorneys who are practicing abroad or who have sizeable consular processing practices. With over 250 members, the RDC provides its members with assistance and advice on consular processing issues and promotes active outreach to consular sections and managers at US embassies and consulates in Europe, the Middle East, and Africa.   

 

Steve Pattison Chairs Panel at the American Immigration Lawyers Association on Nashville, TN  

 

Steve Pattison chaired a panel on "How to Communicate Effectively with Consular Sections" at the AILA national convention.  The panel covered topics ranging from effective strategies in interacting with consular managers and sections to how to locate and utilize the most current online information about consular operations.  

 

Steve Pattison Publishes Article on Treaty Trader/Investor Visas in Immigration Briefings

 

Steve Pattison has published an article in Thomson West's June edition of Immigration Briefings Entitled "The Curious Case of the Treaty Trader/Investor Visa-How Diplomacy and Immigration Law Intersect to Promote Trade and Investment in the United States."

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

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