Recent events in the news regarding proposed changes to the immigration laws of the United States have caused some concern and confusion.  The purpose of this update is to provide a summary of the current immigration system for nurses to immigrate to the United States and to discuss the proposed new laws and their possible effects.

A "Grand Bargain" was reached by the Senate and posted on May 17, 2007.  Below is a brief summary of the provisions it encompasses.

First, as stated in Title I, before the Guest Worker and Z visa programs can begin, the Secretary of Homeland Security must certify that certain security triggers are met.  The triggers include the employment of 18,000 Border Patrol agents; construction of 200 miles of vehicle barriers and 370 miles of fencing; and the use of secure and effective identification tools to prevent unauthorized work, among others.  Interior enforcement of immigration laws include provisions that stiffen the laws and penalties as relating to the detention of criminal aliens and passport, visa, and immigration fraud.

In regards to workplace enforcement, the bargain sets forth an increase in penalties, revising and making mandatory a system of electronic employment verification, and promoting information sharing.  It reduces the list of documents that may be presented to employers to prove identity and work eligibility, and increases penalties over current law for unlawful hiring, employment, and recordkeeping violations.

The new temporary Y worker program addresses future labor needs of temporary foreign workers and discourages future illegal employment of undocumented individuals.  The Y visa is for workers who come to the USA to perform a temporary job that the USA employer is unable to fill.  It provides for a non-seasonal Y temporary worker (Y-1 visa), seasonal temporary worker, and their spouses and minor children.  Y workers must be matched to a "willing employer" through an electronic database in order to qualify for a Y worker visa.  Families of Y visa holders can accompany Y workers if certain provisions are met.  A Y-1 worker can be admitted for a two year period that can be renewed twice if that worker spends a period of one or more year outside the USA between each admission.  Y workers who fail to timely depart are permanently barred from any future immigration benefit.  The Y-1 visa program has an initial cap of 400,000 with yearly adjustments based on market fluctuations.

Also included in this bill is a rebalancing of immigrant visa allocation, resetting the number of family-based, family backlog, merit-based immigrants, and eventual Z immigration green cards.  The current employment based green card system will be replaced by a merit based points system.

Critics of the bill believe that these provisions will not solve the illegal immigration problem and will make matters even worse by destroying families and creating requirements that are unfeasible.  Specifically, critics take issue with the fact that the bill eliminates current family preference categories and limits future family immigration; eliminates current employment-based immigration categories and puts in their place a new merit-based point system with inadequate numbers; does not provide a reasonable path to permanent status for the Y workers; and underestimates the number of green cards needed for families and workers.  They assert that passage of the bill as written would be worse than the status quo.  Immigration Solutions will continue to keep you informed as the bill is revised.

GO: The White House Myth/Fact Sheet

 

 

DOL Seeks To Eliminate Fraud and Abuse With New Rule

 

The Department of Labor is finally enacting a rule that ambitiously tries to stop fraud and abuse relating to permanent labor certification applications and resulting certifications.  Concerns about fraud and abuse have been growing for the past fifteen years, and were magnified by a number of recent criminal prosecutions by the Department of Justice (DOJ).  Review of these prosecutions revealed that the ability to substitute alien beneficiaries turned labor certifications into commodities which can be sold by unscrupulous employers, attorneys, or agents to those seeking a "green card."    

 

Thus, in order to recapture the integrity of the process as well as reduce costs associated with prosecuting those who abuse the system, the Department of Labor is amending its regulations by implementing a new rule which will take effect on July 16, 2007.  The boldest provision in the rule prohibits both the substitution of alien beneficiaries, as well as modifications to applications once they are filed with the Department.  In addition, employers will now have 180 days (as opposed to 45 days) to file an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker. 

 

The Department seeks to reduce the incentive to commit fraud by strictly prohibiting the sale, barter, purchase, and payments to employers in compensation or reimbursement for the employer's costs incurred to obtain labor certification.  Additionally, the rule requires employers to pay the costs of preparing, filing and obtaining certification, and any transfer of these costs to the employee are strictly prohibited. 

 

Lastly, the Final Rule also provides for enforcement mechanisms that permit the Department to debar an employer, attorney or agent based upon certain actions.  Such enumerated actions include penalties for behavior that amounts to a pattern or practice of noncompliance with PERM requirements, regardless of whether the labor certification application involved was filed under the prior or current registration. 

 

GO: Final Rule DOL Employment and Training Admin

As gas prices soar, so does the appeal of telecommuting.  In order to achieve a successful telecommuting arrangement, several key elements should not be overlooked.  First and foremost, the employer should create a Telecommuting Agreement that willing and eligible employees should review and sign. This agreement might include the following:  a definition of the telecommuter's work schedule and an outline of the probationary period, if applicable.  If the company is providing any work-related items, the agreement should include a list of such items; and acknowledgement that the employee will take precautions to protect company items from damage or theft.

If you are an employer who has numerous employees who desire to work as telecommuters, you are then faced with the issue of who will be permitted to do so.  In order to make a fair choice, first establish a series of standards that you will apply to every telecommuting request you receive, such as the type of position the employee has, or the employee's tenure with the company.  Many companies require a minimum number of months of consecutive employment in order for employees to be eligible for telecommuting. By doing so, employers reward loyal staff and feel more confident that these employees will succeed in this type of arrangement.  Also, employees with an above-average job performance history should be considered strong candidates for telecommuting.