January 2013
InFOCUS News | Business Immigration and Employer Compliance
These very words perfectly express where we are with the immigration debate in this country today. It's quite hopeful to see this mentioned in the President's Inaugural address:
Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.
Immigration Compliance Group focuses its practice on corporate immigration, both nonimmigrant and immigrant, and employment eligibility compliance. Our talented team has a depth of experience in providing uniquely tailored services and solutions to assist our clients in accomplishing their immigration related objectives.For more information please visit www.immigrationcompliancegroup.com and www.I-9Audits.com, or call our office at 562 612.3996.
We appreciate your business and your readership, and are looking forward to continuing to inform and educate you in this New Year on all things immigration related. Please feel free to forward this newsletter to your colleagues and business associates. Remember, you can also sign up to receive our Blog posts via email or RSS feed, participate in our LinkedIn I-9E-Verify Smart Solutions for Employers Group, and become a client of our office for your immigration needs.
So, the big question is...What's in store for immigration this year? Will we come out of the dark ages to compete with other countries and enact a humane and labor friendly immigration system? The stage appears to be set for major change as the talking points from all parties gather momentum. Advocates for reform say they feel confident that Obama wants to be remembered as the person who got it done.
Elise Foley's Huffington Post article states: "Two categories of numbers define President Barack Obama's handling of immigration policy -- and the challenge he faces on this incendiary issue in his second term. The first is 409,849: the record number of people deported in the 2012 fiscal year. The second is 102,965: the number of young, undocumented immigrants who, under a new administrative program, were assured in 2012 that they wouldn't wind up in the first category.
Hispanic voters last year helped Obama win a second term and Democrats to increase their clout in Congress. Republicans took notice and want to win Hispanic support. One step toward that goal would be for Republicans to become more open to immigration reform.
Today is Inauguration Day. Obama will have four more years to reshape his immigration legacy. And there's every indication that he wants it to be different. He doesn't want the dubious distinction of being "deporter-in-chief" -- especially since he was elected and reelected as the avatar of an ever more diverse America."
Despite potential impediments facing immigration reform, Biden claimed that a consensus has begun to build around the issue, stating "In one sense, we have a long way to go, bringing 11 million Hispanics out of the shadows and into the light of day," he said. "What's different today is that the rest of the nation, the rest of America, recognizes it's time. It's your time."
In Greg Siskind's article on ILW.com, a widely read industry newsletter, he states, "Paul Ryan backs the Rubio Immigration Plan. This has got to be a disappointment for the hardcore right wingers. Tea Party darling Paul Ryan is embracing immigration reform by endorsing Marco Rubio's immigration plan. The Rubio plan looks pretty similar to comprehensive immigration reform packages of the past and includes legalization of illegally present immigrants.
So at least three Republican contenders for the presidency - Jeb Bush, Rubio and Ryan - are now backing immigration reform plans that include legalization paths for illegally present immigrants. Two of them - Ryan and Rubio - are recent converts to the cause. And one of them - Paul Ryan - carries a lot of weight in the Republican House of Representatives. This is a good day politically for the cause of immigration reform."
Despite potential impediments facing immigration reform, Biden claimed that a consensus has begun to build around the issue. "In one sense, we have a long way to go, bringing 11 million Hispanics out of the shadows and into the light of day," he said. "What's different today is that the rest of the nation, the rest of America, recognizes it's time. It's your time."
Univision speaks on what 6 things Obama needs to do for immigration reform.
We will keep you posted as details evolve.
The new Congress convened on January 3rd, and House and Senate Democrats and Republicans have appointed members to their standing committees. Following is a list of new members of Committees that have jurisdiction over immigration.
For the past several years, U.S. Citizenship and Immigration Services' (USCIS) H-1B visa review and processing procedures have caused confusion and concern among U.S. businesses that turn to highly-skilled temporary foreign workers in specialty occupations to operate successfully. In newly-uncovered documents, it was found that instead of supporting small businesses that attempt to hire highly-skilled foreign workers, in many cases, USCIS discourages their success by subjecting them to a near presumption of fraud.
It's almost that time of year again for H-1B filing season FY 2014 as of April 1, 2013, and it's not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment. For more on this story, please follow link.
There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same. For more, please follow link
H-4 Work Authorization ...maybe?
USCIS may be finalizing a rule that will allow work authorization for H-4 spouses if they have begun the process of seeking lawful permanent resident (LPR) status through employment and have extended their authorized period of admission or "stay" in the USA. This means that no H-4 spouse whose H-1B principal has not spent more than 6 years in the USA will be eligible to apply for an employment authorization. At a minimum, a PERM labor certification or I-140 Petition would have to have been filed, and even approved to qualify for the 3 year H extension under Section 104(c) of AC 21, if less than 365 days had elapsed since submission. Should we really be celebrating about this? Why not just give H-4 spouses work authorization from the outset and remove this narrow interpretation? Nonetheless, this authorization is long overdue.
Interesting report from the US Chamber of Commerce, "The Role of Foreign Workers in the Innovation Economy". Steve Jobs put the case bluntly to the President, stating that he employed 700,000 factory workers in China because he couldn't recruit 30,000 engineers in the United States.
U.S. Citizenship and Immigration Service Director Alejandro Mayorkas acknowledged on that his agency "has not been especially nimble" to adapt to fast-paced changes in the business landscape, even though it has been quick to respond to the humanitarian landscape.
Secretary of Homeland Security Janet Napolitano today announced on January 2nd the posting of a final rule in the Federal Register that reduces the time U.S. citizens are separated from their immediate relatives (spouse, children and parents), who are in the process of obtaining visas to become lawful permanent residents of the United States under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they depart the United States to attend immigrant visa interviews in their countries of origin. The process will be effective on March 4, 2013 and more information about the filing process will be made available in the coming weeks at www.uscis.gov.
"This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa," said Secretary Napolitano.
U.S. Citizenship and Immigration Services (USCIS) received more than 4,000 comments in response to the April 2, 2012 proposed rule and considered all of them in preparing the final rule.
"The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves," USCIS Director Mayorkas said. "The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon."
USCIS has begun the online transition that replaces the existing Adjudicator Field Manual (AFM) and the current USCIS Memoranda website, by releasing the first volume of the new USCIS Policy Manual on Citizenship and Naturalization. The release follows an unprecedented, agency-wide review of USCIS policies that incorporates feedback from thousands of agency employees, customers and stakeholders.Please follow link for more.
DOS has introduced the online "Visa Status Check," which allows both immigrant and nonimmigrant applicants to check the status of their cases at the Consular Electronic Application Center (CEAC).
DHS Statement will cause States to Review Driver License Policies for DACA Recipients
In updated guidance from USCCIS, the Obama Administration confirmed that recipients of deferred action are authorized to be in the United States and therefore considered to be "lawfully present" under federal immigration laws. The guidance should clarify the debate over whether beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program are eligible for driver's licenses. Acting under the belief that DACA recipients are not "lawfully present" under federal law, four states—Arizona, Iowa, Michigan, and Nebraska—have refused to issue driver's licenses to DACA recipients. See Q.1 and note other new DACA FAQ's highlighted in red.
Investment by Spanish companies in the United States has more than tripled since 2006 to $50 billion, Washington's envoy to Spain said on January 17th. A favorable business climate and the sheer size of the U.S. market "are two important reasons" for the increase that has made Spain the 11th-largest foreign investor in the United States.
Currently, over 80 percent of tenured professors at the nation's law schools are white and Latino law student enrollments are not only low but have been slipping lately. Of the 65 faculty positions at Yale Law, there are currently only two Latinos. Yale Law clearly has a long way to go before achieving anywhere close to a critical mass in its faculty diversity overall. In terms of Cristina Rodríguez, they need to be sure that she not become, in Rachel Moran's phrase, a "Society of One."
We expect the newly revised, 2-page I-9 form will be released in the first quarter of 2013.
Some Background ...On March 27, 2012 USCIS released an initial draft of the I-9 form for public comment. The new version is very different than the current I-9 form in use, with several new fields, a new layout and a form that is double the size.
USCIS received an amazing 6,200 comments and suggestions on the initial draft and then published an updated version of the form with instructions that includes several changes to the first draft published in May (see below). You can find more information about the newly proposed revisions to the Form I-9 here. Please note that this proposed form is not in use; we are still using the form with the revision date of August 7, 2009 until further notice.
Those of you in the group enrolled in E-Verify, let us know your thoughts on this. How reliable have you found the E-Verify System?
Forbes reports that there were 770,000 erroneous final non-confirmations, which resulted in the employer being required to fire the employee. The article also cites a 2009 report that reveals that half of all of the employees that were NOT flagged by E-verify were working without authorization, and "slipped through" the system.
Allowing you to search currently enrolled employers and federal contractors by name or by state.
A new USCIS Release
Recent DOJ Immigration-Related Discrimination Cases
As 2012 winds down, with year-end planning sessions and budget meetings for 2013, how would you rate your company's employment eligibility compliance program, as it stands right now? We are not in the bubble bursting business, but we've yet to see a compliance program that doesn't need some upgrading and refinement – no one's is perfect.
InFOCUS for HR's: Today's Tip from HR Daily Advisor
One potentially confusing area for employers is determining under which circumstances employee training time must be paid. Is all employee training time considered hours worked? BLR Legal Editor Susan Prince provides the answer in this new video.
Should you wish to know more about our services or become a client of our office, please contact us at info@immigrationcompliancegroup.com, or call 562.612.3996.
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Disclaimer: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. © Copyright 2007-2013 Immigration Compliance Group.
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