We have a new Form I-9 on the horizon and, from what we've seen so far, it will include copious reader-friendly instructions to gently guide the employee and employer through the various machinations of the form. Of course readability is only valuable if reading is actually something that is truly a part of the Form's completion process. In reality, most employees, and their employers do not actually read the instruction pages. The Form I-9 is just one of at least five other forms that the employee needs to complete before they can get started with their job and sitting down to read three pages (soon to be six) of instruction, usually doesn't make it to the to-do list.

While the form is getting a friendlier makeover, ICE audits have been less so. We have also seen no slow-down in ICE inspections of employer I-9 records and, in fact, have seen quite a lot of activity recently. Thirty seven employers in Massachusetts, Maine, and Connecticut paid a cumulative total of over $560K in fines in 2012 so far and the rate of both audits and fines has increased dramatically over FY 2011.

What should employers do to prepare for both the new form and the increasing probability of an audit?

Integrate compliance into the fabric of your operations. Over the past 26 years and 10 versions, no matter what has happened to the Form the basic concepts have remained the same. When you build your work practices around these concepts, you can maintain compliance and changes will have little disruptive impact.

Timing of Completion: US employers must review appropriate documents to ensure that their workers are authorized to work in the US. Employees must begin the process no later than their first date of work for pay and employers must review and document their review within three days of the employees for day of work for pay.  

Documentation: Documentation must verify identity or work authorization or both. The list of acceptable documents has changed with the form, but the rules about how to know what you can and can't use and how to communicate with employees remains the same. Employers generally may not tell employees which documents to use (although with certain work authorization, only specific documentation is acceptable). The list of acceptable documents is included with the form.

Recordkeeping: I-9 records are to be kept separate and easily accessible in case of audit. Expiring work authorization must be tracked and updated timely, and records for terminated employees should be removed appropriately. Self-audits should be part of your regular operations - and if you are publically traded, part of your SOX compliance procedures.

Training:  Make I-9 training for HR staff and/or managers at least an annual event.

Maggio +Kattar can help support your compliance efforts with training, manuals, and more, contact your attorney or compliance@maggio-kattar.com for more information.

Under the newly expanded IWP, the following applicants may renew or reapply for their visas without scheduling a personal interview: children under the age of 14 applying for any visa class, students returning to attend the same school and program, temporary workers holding H-1B visas, and temporary workers holding L-1A or L-1B visas.  Because India processes more L visa applications than any other U.S. mission, we hope that the expanded IWP will have a positive impact on the thousands of Indian L visa holders who need to reapply or extend their current L visas.

Not everyone who holds one of the qualifying visas will be able to take advantage of the new expanded IWP.  Any visa holder whose visa is annotated "clearance received" will still be required to schedule a personal visa interview in order to obtain a new visa or renew an existing one.  Additionally, consular officers have complete discretion to require an interview of any applicant, even someone who has previously benefited under the IWP, for any reason in any visa category.  While the expanded IWP will eliminate the requirement for thousands of visa applicants to appear before a consular officer, all visa applicants must still schedule and attend a biometrics appointment to have their photos and fingerprints captured, submit all required visa applications and supporting documents, and pay the standard visa application fees.

The decision to expand the IWP in India indicates the Department of State's determination to make it easier for qualified visa applicants in India to receive the visas for which they are eligible.  Demand for visa services in India continues to grow, with over 700,000 applications being processed in 2011-an increase of 11 percent over the previous year. 

Maggio + Kattar clients who need to submit renewal visa applications for themselves or their employees in India should seek advice on whether the newly expanded IWP will apply to them.  

Both major political parties appear to recognize that legislative steps must be taken to fix the country's immigration system. However, the contours of any potential reform are at this time unknown.

There has been movement since the election in discrete areas on which the parties potentially agree. For example, the STEM Jobs Bill (H.R. 6429) introduced by Republican Representative Smith (with 68 co-sponsors) is aimed at attracting and retaining the next generation of highly-skilled immigrants particularly in the fields of Science Technology Engineering and Mathematics (STEM) advanced degrees from a U.S. University. In addition, the bill proposes a new "V" non-immigrant visa category that would allow for work authorization for certain family members. The bill, however, also proposes eliminating the long-standing Diversity Visa (DV) program that makes immigrant visas available to certain individuals from countries with low rates of immigration to the United States. The Bill passed in the House, but does not presently have White House support as the Administration issued a statement opposing the bill in late November.  The changed landscape in this area may be most evident by comparing the STEM bill, passed after the election, to a prior bill also addressing STEM graduates entitled, "Attracting the Best and the Brightest Act of 2012" was introduced by Representative Lofgren in September (HR 6412) which included many similar provisions but did not eliminate the DV.

Another immigration bill, recently introduced in the Senate by Senators Kyl, Hutchison, and McCain, the ACHIEVE Act, would allow certain young people who meet the established criteria to obtain a series of conditional nonimmigrant visas designated as W-1, W-2, W-3.   The ACHIEVE Act is much more limited than the DREAM Act and does not provide a green card to beneficiaries, and thus will likely face resistance from many in Congress who support a more expansive bill.  

We anticipate that a comprehensive immigration reform package would contain elements focused on securing the nation's borders and increasing penalties for employers who hire workers without authorization. A legalization program, allowing undocumented workers to be put on a path to permanent status, also may be included. However, the specifics of who might be eligible, what the application process might look like, and what types of fines and penalties might be assessed have not yet been unveiled.

Whether specific changes to the many other broken aspects of the immigration system are available remains to be seen. Some proposed changes include: reforming the employment-based and family-based permanent residence process to cut down on waiting times; increasing the numbers of non-immigrant visas available for both skilled and unskilled workers; reforming the immigration courts and detention system; eliminating the three- and ten-year unlawful presence bars, or making more waivers and exceptions to these bars available; allowing U.S. citizens to petition for a same-sex spouse; and restoring discretion to immigration judges to cancel the deportation of lawful permanent residents with certain types of criminal convictions.

Maggio + Kattar will provide further details once the specifics of any proposed legislation becomes available. 

Ramon came to the United States from the Philippines to live with his mother in 1975.  His mom was employed by an international organization and after retirement from that organization, she became a lawful permanent resident.   Ramon's mom sponsored him for an immigrant visa, but she died before he could apply for his permanent residence status (green card).  Based on the law at that time, her immigrant petition for him was automatically revoked and with it his ability to remain in the U.S. legally.

In 1998, Ramon and his partner James came to our office, desperate for a solution after they had experienced legal setbacks with Ramon's immigration status.  With our assistance and the assistance of family and friends, Ramon requested that the legacy Immigration & Naturalization Service (INS) reinstate his mother's immigrant petition based on humanitarian reasons, including his long-term relationship with James.  The INS agreed to reinstate Ramon's petition, but it would be several years before he could apply for permanent resident status due to visa quota backlogs. Rather than facing several years in the U.S. in an ambiguous legal status, Ramon and James moved to Canada where they became permanent residents and, later, citizens. 

While in Canada, the U.S. Department of State notified Ramon that he would need to file an affidavit of support in order to immigrate to the U.S.  The Affidavit of Support is required for many immigration cases, particularly family based cases, and asks that a "Sponsor" with sufficient resources attest to financial support for the intending immigrant. This form requirement threatened to undermine Ramon's ability to return to the U.S., because U.S. immigration law only allows certain relatives or a legal guardian to file affidavits of support.  Although James and Ramon had a civil union under the law of Vermont and were married in Canada, James was not considered to be a spouse under Federal U.S. law.  In fact, Ramon did not have any relatives who were qualified to file an affidavit of support.  Ultimately, the Department of State conceded that Ramon did not need an affidavit of support. 

In the interim, however, a U.S. citizen in the state of Iowa stepped forward and offered to become Ramon's legal guardian.  Guardian laws in Iowa are more expansive than in other states and, through significant persuasion, James and Ramon were able to demonstrate that the adult guardianship would convey a specific benefit. To support their request, Ramon and James rented an apartment in Iowa, where they spent many weekends and established friends in the community.  They still talk about the incredible warmth and hospitality they experienced when they were in Iowa.   Shortly after an Iowa judge granted Ramon's request for a guardian, he was scheduled for an immigrant visa interview in Montreal. His green card was finally granted his wait for the opportunity to file for U.S. citizenship began.

Fast forward five years, Ramon attended his naturalization interview before the USCIS.  When the examiner asked for Ramon's marriage certificate, we indicated that it was irrelevant under Federal law.  We were heartened to hear that USCIS Officer respond, "today it is irrelevant, but things are changing." 

The fact is that Ramon and James had the resources to stay together, whether in the United States or in Canada. They also had the support of their extended families and friends.  They would be the first to tell you that they could not have gone through all of this alone and they would also tell you that no couple should have to experience what they did.   

Ramon and James witnessed a legal system that appeared to have no place for their twenty-plus year relationship, while expediting permanent resident status and citizenship for straight foreign nationals married to U.S. citizens of the opposite sex.   While it took Ramon more than two decades to obtain citizenship, it would have taken as little as three years if he had married a woman.  Ramon and James never complain about the hoops they had to jump through; they are intensely proud to be U.S. citizens and to live in this country.

The Supreme Court is currently considering whether to hear several cases involving the Defense of Marriage Act (DOMA) and state laws prohibiting same-sex marriage.  In the event that the high court addresses the issue of same-sex marriage in the upcoming session, its decision will determine whether same-sex bi-national couples will have access to the same benefits accorded heterosexual couples or whether they must continue such odysseys in order to stay together.  

A decision to uphold the DOMA would certainly provide job security for immigration lawyers who will continue to help American families stay together through time-consuming legal strategies that unnecessarily burden limited government resources.  However, the reasons to repeal the DOMA, include reuniting U.S. citizen families, strengthening our diverse communities, and reinforcing American values of fundamental fairness and equal treatment under our laws.   Clearly, all of us benefit significantly from stronger families, and thriving communities, and the equal and fair application of our laws.   

This measure primarily affects young people who were brought to the United States illegally as children by their parents. Most of these young people identify themselves as Americans and many of them did not become aware of their immigration status until they were old enough to apply for a driver's license or for college.

To qualify for in-state tuition under the law, students had to have been brought to the United States as children, have attended at least three years of high school in Maryland, and come from families that have filed state tax returns, among other requirements. Under the law, students who qualify for the tuition benefit must first attend community college. Those who receive an associate's degree or at least 60 credits at the two-year college can then qualify for a tuition discount at a four-year university in Maryland [?].

Although other states have similar laws concerning the post-secondary education of undocumented students, Maryland has set a precedent because it is the first state to approve such a measure through a popular vote.

The Maryland DREAM Act is a significant benefit granted to undocumented students living in the U.S. Each year, approximately 65,000 undocumented students graduate from high school, but cannot go to college. Of these high-school graduates, an estimated 5 to 10 percent attend college. At the University of Maryland in College Park, in-state tuition is $7,175 a year. For out-of-state students, it is $25,554. Therefore, this government subsidy is the only chance for students from underprivileged families to obtain a university degree. This measure will not only make it feasible for undocumented students to attend university, but it will give them an incentive to finish high school. The expected result is that the availability of college enrollment will reduce the high drop-out rates, gang membership, and illegal activities among these young people.

Critics of Question 4 called the law a wasteful means of spending taxpayer money and warned that if the law passed, undocumented students would take the places of U.S. citizens applying to public universities and colleges in Maryland. However, proponents of the law, like the President of the University of Maryland, Wallace D. Loh, said that the issue was a matter of "fairness and justice" and that Maryland would benefit in the long run from providing higher education access, at a low price, to all its high school graduates.

State's policy concerning the B in lieu of H-1B and B in lieu of H-3 annotations has not been without controversy, and interagency discussions concerning its future are ongoing.  For now, however, consular officers may follow these guidelines in determining whether or not to annotate business visas:

--A B in lieu of H-1B annotation is appropriate when the applicant is coming to the U.S. on behalf of his or her overseas employer to perform services or engage in limited activities in the U.S. that would otherwise require them to have a work-authorizing H-1B visa.  In these cases, the applicant must continue to be employed and paid by his or her overseas employer and receive no other remuneration other than reimbursement for living expenses from a temporary stay.  The applicant must also demonstrate lack of immigrant intent and intend a limited stay of "generally" less than six months.  Finally, the intended activities in the U.S. must meet the standard of  an H-1B "specialty occupation" , i.e. generally require a bachelor's degree or the equivalent in work experience.  Skilled workers who do not meet this standard may not be issued business visas with the "B in lieu of H-1B" annotation.

--A B in lieu of H-3 annotation is appropriate when the applicant is clearly an employee of the overseas company and is being sent to the U.S. for a qualified training program.  The training may not be designed to train individuals to work in the U.S.  The applicant must demonstrate lack of immigrant intent, overseas employment and remuneration, and clearly plan to engage in an organized training program of "generally" less than six months.

The requirement to demonstrate lack of immigrant intent distinguishes these annotated business visas from the H-1B and H-3 visas, as does the requirement to demonstrate continued employment and remuneration by the overseas employer.  Another problematic area concerns the "general" requirement that the intended stay in the U.S. be less than six months.  This very nuanced guidance leaves open the possibility of consular approval for longer periods of stay when the rationale is clear-such as a detailed training program lasting longer than six months or a one-off stay to work on a special project for the overseas employer.  However, in practice most consular officers will hesitate to use this annotation to allow stays longer than six months.

While the long-term future of this visa accommodation is clouded, the Department of State's guidance acknowledges the fact that international business activity frequently does not fit easily into the existing non-immigrant visa categories.  State's willingness to reissue this guidance despite interagency disagreement is an encouraging signal for employers seeking to comply with a confusing and increasingly archaic visa system.   

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