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Maggio + Kattar
11 Dupont Circle NW, Suite 775
Washington, DC 20036
202.483.0053 t
202.483.6801 f
www.maggio-kattar.com
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+Compliance Corner: 60-Day Integration Plan for the New Form I-9 |
On March 8, 2013, USCIS released a new Form I-9 for use to verify employment authorization for US workers. Employers have a 60-day grace period (until May 7, 2013) in which to integrate this new Form into their business processes. Employers should use this time effectively and take the following steps to review their current process, identify any changes needed, and ensure that all staff involved in the completion, maintenance and recordkeeping of the Form I-9 are properly trained and up to date. Step 1) Review current policy and procedure: Do you have a written policy and procedure for employment authorization verification that outlines: - Notifications to applicants?
- Notifications to candidates who receive offers of employment?
- Employer responsibilities and who is responsible for various tasks related to Form I-9 completion, compliance, recordkeeping, training and audit?
- Employer process for compliance, recordkeeping training, and audit?
- Employee responsibilities to support items 3 and 4 above?
Step 2) Train staff who are involved in completion, recordkeeping and audit of the Form I-9: The Form looks different and contains more pages and fields, so it is important that all staff is clear on how to handle: - Standard completion and maintenance for new hires, and
- Re-verification notification and completion process;
*Now that the Form is 2 pages long, if a new Form I-9 is used for re-verification, only the second page of the new Form I-9 (which includes Sections 2 and 3 needs to be completed and maintained with the original Form. Just enter the employee's name where indicated in Section 2 and complete Section 3 for the remainder of the re-verification information. Step 3) Consider E-Verify: There is a lot of support within the current Administration and on Capitol Hill to make E-Verify mandatory for all employers. If your organization does not already participate in E-Verify, now may be a good time to review the requirements of the program to identify what the benefits and risks may be to your organization as well as identify barriers to achieving compliance. Please contact the Maggio + Kattar legal professional that you work with for more information on our Corporate Compliance programs. | |
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How Will "the Sequester" Impact U.S. Consular Services Around the World? |
The mandatory automatic cuts to government spending known as "the sequester" went into effect on March 1. With government agencies scrambling to find ways to cut their operating expenditures to comply with the terms of the sequester, attorneys and visa applicants alike wonder how this brave new fiscal world will impact worldwide consular operations. Fortunately the immediate news is not all bad. While the Department of State ("DOS"), like nearly all other government departments, must find ways to cut its expenditures to comply with the sequester's mandate, the agency appears to be finding ways to do so without imposing immediate cuts on overseas consular operations, at least for the next several months. DOS has recently advised its overseas personnel that consular operations will not be impacted at this time due to the sequester. This means that consular sections will not see reductions in staffing levels during the rest of the fiscal year (which ends September 30, 2013), enabling them to continue processing visas during the busy summer travel season. The long term picture is more mixed. Local staffs at Embassies and Consulates, whose working terms and conditions are governed by separately negotiated contracts under the applicable national employment laws, are protected against mandatory sequester-driven layoffs or furloughs. However, busy consular sections that typically hire local consular staff to cope with increased workloads may find that they are not able to obtain the funds to do so under the terms of the sequester. A more pressing concern, however, may be on the impact that the sequester may have on the intake of new Foreign Service Officers ("FSO"). Nearly all new FSOs must serve in at least two consular tours or rotations at the start of their careers due to the ever-growing visa workloads around the world. If the DOS is not able to bring in enough new FSOs to handle workload increases, due to hiring restrictions caused by the sequester, it will have an inevitable impact on visa processing. The impact will likely include increased wait times for appointments and reducing the number of interviews that can be scheduled by understaffed consular sections. Consular operations will also be impacted by sequester-related cuts to other government agencies such as the Department of Homeland Security ("DHS"). Current wait times for processing waiver requests could lengthen if fewer officers are available to staff the Admissibility Review Office, and the processing of interagency security advisory opinions could also become more sluggish for the same reason. The resulting hardship to applicants awaiting clearances could be considerable. Like DOS, DHS has cautioned about the impact of the sequester on its domestic operations, but so far it is not clear when and to what extent this will affect public services. At a minimum, travelers entering the U.S. could find fewer immigration officers manning the ports of entry, causing delays for arriving passengers on international flights. The DOS does not have a sizeable domestic constituency to bring to bear in budgetary battles, and as a result has experienced years of budgetary belt-tightening when other agencies did not, so in many ways it may be better able to cope with the initial phase of the sequester than others. But the longer the sequester remains in effect, the greater will be the likelihood that overseas consular operations will be adversely impacted, causing real hardship for visa applicants and their families and greater frustration for counsel." |
Update for Employers: FY2014 H-1B Cap
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United States Citizenship and Immigration Services (USCIS) will start accepting H-1B cases subject to the annual beginning on Monday, April 1, 2013 for an October 1, 2013 start date. Based on feedback from stakeholders, USCIS has announced that it may receive more petitions than those eligible for cap or quota numbers (65,000 plus 20,000 slots available for individuals with U.S. advanced degrees) within the first week.
USCIS has noted that it will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H-1B cap has been met. If USCIS receives more petitions than it can accept under the FY2014 quota, it will use a lottery system to randomly select the properly filed H-1B petitions to reach the numerical limit (as was last done in 2008). Following the lottery, USCIS will reject any H-1B petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap, and will return the filing to the petitioner.
As a result of high levels of premium processing filings, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.
If you believe that your organization may require a new H-1B visa worker with a start date prior to October 1, 2014, please contact our office immediately.
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Is USCIS' Premium Processing Unit Issuing Erroneous Approval Notices? | |
We have recently spoken with USCIS in follow up to receiving electronic approval notifications and later receiving a Request for Evidence (RFE) on the same case. Based on these discussions, we have been given to understand that the electronic system is generating notices that cannot be relied on.
We will update you further as developments become available. In the interim, we recommend employers not make staffing decisions or employee's make finite travel plans until the original I-797 is received. |
M+ K Country Spotlight: China* |
Business Visa Applications
A Business or F visa is available to foreign nationals who visit China to market a product, to attend a business conference, to undertake an internship, or to advise on technical issues. As long as an applicant is not being paid in China and intends only to undertake short-term business activities, an F Visa is suitable and considerably easier than applying for a Z Visa. To apply for an F Visa, an invitation letter from a registered Chinese company or an official Chinese government authority and an introduction letter from the applicant's company are required.
F Visas may be extended for one to six months once in China, although this depends on the background of the applicant and the entity which issued the invitation letter. Six month extensions can be difficult as a company's registered capital must be of a certain level and the applicant must have entered China on a six-month Business Visa. It is important to note that six month extensions are the exception, not the rule. Thirty day or ninety day extensions are more common.
Changes to the Immigration Laws
As of July 1, 2013, a new law on Exit and Entry Administration will take effect in Mainland China. The new law will tighten restrictions on the legal employment of foreign nationals in an attempt to curb illegal employment. The new law distinguishes between two categories of residence of foreigners, those residing in China for work purposes or those residing for non-work purposes. The validity period of a Residence Permit can be from 180 days to five years for non-work purposes and 90 days to five years for work purposes. Foreigners working in China must obtain Work Permits and Residence Permits in order to perform work-related activities. No Chinese entity or individual is permitted to hire a foreign national who does not have a work permit and residence permit. The law defines "illegally working in China" as follows:
- Working in China without having obtained a Work Permit and a Residence Permit for work purpose;
- Working in China outside the scope stated in the foreign national's Work Permit; or
- Overseas students working outside the scope or time limitation, and thus breaching regulations on taking up part-time jobs while studying at school.
This is the first time that Chinese law has clearly laid out what constitutes illegal employment. Companies will be subject to closer scrutiny of assignees' job titles and job functions after July 1, 2013. Additionally, if a foreign national is found to be working illegally, he or she can be subject to a penalty ranging from RMB 5, 000 to RMB 20, 000, and in severe cases, the foreigner can be detained for five to fifteen days in addition to the monetary penalty. An employer hiring foreign nationals illegally can be subject to a penalty of RMB10, 000 per person with a cap of RMB100, 000 in total. Any illegal income resulting from their employment can be confiscated. Furthermore, the Public Security Bureau or the Frontier Inspection Office is entitled to repatriate any "illegal" foreign nationals, who would then also be restricted from re-entering China for a period of up to five years.
Work Permit and Residence Permit Application Processes: Beijing and Shanghai
A foreign national assigned by his employer to work in China must obtain Work and Residence Permits (WP and RP, respectively) for any paid work in China. The immigration process differs from city to city in China, and so Beijing and Shanghai are highlighted below as these have the highest concentration of foreign nationals.
To apply for a WP and RP to work in Beijing, a Chinese legal entity must be the employer; the assignee must have at least a Bachelor's degree, be less than 60 years old. In Shanghai, the age limits is under 60 for men and under 55 for women. Additionally, the foreign national must have more than two years full-time work post bachelor's degree work experience.
The immigration process generally takes 6 - 8 weeks once the medical check has been completed. For an employee of a Wholly Foreign-Owned Enterprise (WFOE - a common investment vehicle in Mainland Chinese business, which does not require investment from a Mainland Chinese citizen or enterprise), the immigration process begins with gathering a number of personal and company documents and then arranging for a medical exam. It is best to get the medical exam done in China as it must be completed by a public hospital authorized by the local Chinese Embassy. If the medical exam is done overseas, the health certificate must be authenticated by an official Chinese medical check-up center in China. Medical exams completed by private doctors outside China are not accepted.
After the medical exam, the application process continues with an Employment License and then a short-term Z Visa Invitation Letter. The short-term Z visa for work in Beijing can be applied for in the foreign national assignee's home country, a third country where the assignee already holds a long-term Residence Permit, or, for some nationalities, in Hong Kong. For work in Shanghai however, the assignee must return to their home country to submit their short-term Z Visa application. Employment Licenses are given to the inviting company within China by government authorities, and are required as part of the short-term Z Visa application.
When the whole process is complete, the assignee will receive a work permit and residence permit. His or her family will also receive residence permits as dependants. Please note that while the work permit and residence permit are being processed (a period of a minimum of 10-11 working days), the assignee will not have his or her passport - restricting travel internationally and also domestically by plane for that period. The WP and RP processes for employees of Representative Offices in Beijing and Shanghai are different to the process listed above and are beyond the scope of this article.
*Maggio + Kattar extends its sincere thanks to our global visa partner, Linlin Xiao from Asia Pacific Access, for this update on immigration processes in China.
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Department of State Continues Initiative to Streamline U.S. Visa Processing | |
The Department of State ("DOS") is rapidly expanding its Global Support Systems (GSS) initiative to standardize and streamline the way that both nonimmigrant and immigrant visa support services are provided to applicants at U.S. Embassies and visa issuing consulates around the world.
The GSS is a multi-year initiative which is designed to replace the widely varying and inconsistent procedures for scheduling visa appointments, paying visa fees, seeking visa information, and delivering passports that have been utilized to date. Under the existing system, visa applicants who apply in India, for example, make appointments and pay fees through different providers than applicants in China or Brazil, resulting in different levels of service and complicating efforts to keep the public informed.
The GSS will replace these differing practices with a global standard that ensures that applicants who request visa information or wish to schedule appointments in one consular jurisdiction will be provided the same kind of service as those applying in other locations.
A key objective of the GSS initiative is to increase transparency and efficiency in visa services. Applicants at posts where GSS has been implemented will be able to schedule appointments and biometric capture, pay fees, and obtain visa information through one dedicated contract provider utilizing the service standards mandated by the GSS initiative. This month, the GSS initiative has been introduced at U.S. Embassies in Trinidad and Tobago, the Bahamas, Guyana, and Jamaica, as well as all visa issuing posts in China, including Hong Kong.
The initial phase of transition to GSS standards at individual posts may cause some confusion to the public, and visa applicants and counsel should regularly check the individual websites of visa issuing posts to determine when the posts will transition to GSS and how the new procedures will impact the visa process utilized at those posts. |
2013 Fifth Annual Founder's Day Benefit
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Maggio + Kattar invites you to join us for our fifth annual Founders' Day benefit on April 10, 2013 at the Pepco Gallery in Washington, DC. All event proceeds will support the work of Empowered Women International (EWI). The benefit will highlight the work of EWI graduates in the fields of the culinary arts, fine arts, and music, including catering by Aida Mady, fine art by Nadia Janjua, and music by Tacha Coleman Parr. All proceeds of the event will benefit EWI and tickets can be purchased through their website for $40/individual or $75/couple. In addition, individual sponsorships ($150) include recognition in the program and two tickets, and corporate sponsorships ($250) include recognition at the event and in the program, and as two tickets to the event.
Maggio + Kattar shares EWI's belief in a world in which immigrant and refugee women in the United States and around the world are treated with respect and dignity, valued, and rewarded fairly for their skills, talents, and labor. EWI and its members and supporters join in supporting the extraordinary power of the arts as a unifying language of communication and multicultural understanding, and a vehicle of integration for newcomers. The organization delivers a holistic model of empowerment through entrepreneurship training, business mentoring, and community service, that builds women's confidence, business, and leadership skills. Its comprehensive three-month training program, Entrepreneur Training for Success (ETS), coupled with a year-long mentoring, marketing support, and civic engagement, helps entrepreneur graduates create pathways to self-sufficiency and citizenship.
To join Maggio + Kattar in celebrating EWI and for an evening of art, music, and great food, please click here.
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M + K Attorneys Around Town |
Jim Alexander presented at Business & Legal Resources webinar, "Immigration Compliance Boot Camp: Keeping your Documentation and Processes Up to Date" on March 12, 2013. He led a session on Employment-Based Immigrant Visas.
Stephen Pattison recently returned from an American Immigration Lawyers Association conference in Warsaw, Poland. As President of the Rome District Chapter, he coordinated the conference and led a panel on "Hot Topics in Consular Processing and Overseas Operations."
Join Elizabeth Quinn at the first part of the DC Bar's Continuing Legal Education Series on an Introduction to Immigration Law. The first course will focus on an overview of immigration law and the agencies that impact it. In addition, the course will include a brief introduction to family based immigration. The course will be held on Tuesday, April 9, 2013 from 5:30pm to 8:45pm. To register or learn more information, click here.
On Tuesday, April 16th Jim Alexander will teach a course on Employment Based Non-immigrant Visa Options at the DC Bar's Continuing Legal Education Series entitled, An Introduction to Immigration Law. This course will offer an introductory overview to a variety of employment based non-immigrant visa matters and include important information on applying for a visa at a U.S. Consulate overseas. The course will be held from 5:30pm to 8:45pm. To register or learn more, click here. |
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