Month: November 2007

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Victory for Employers as Government Effectively Withdraws No-Match Rule

Employers scored a major victory last week, as the government effectively withdrew the regulation that would use Social Security Administration records for immigration enforcement. Late Friday, attorneys for the government filed a motion to stay the decision on the merits of the proposed no-match rule. The motion states that the Department of Homeland Security plans to publish new rules sometime in December that it claims will address the concerns outlined by Federal Court Judge Charles Breyer in his ruling granting the injunction against enforcement of the new rule.

This is widely viewed as a victory for employers. While not conceding any deficiencies with the rule, the government has apparently recognized that the potential for harm to lawful workers and employers due to inaccuracies in the Social Security database.

This motion gives employers a chance to put their houses in order before a new rule is published. The motion is certainly not an indication that the Department of Homeland Security will cease or suspend enforcement efforts, and the new rule is expected to keep employers in a very tenuous position in staffing their businesses. Employers should utilize this brief reprieve to assess their immigration, hiring, and retention policies in light of the trend of increased worksite enforcement, so that they are as prepared as possible for the new rules in place. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.

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U.S. Ratifies the Hague Convention on Intercountry Adoption

On November 16th, President Bush signed Congress’ ratification of the Hague Convention on International Adoption. This Convention was negotiated in 2000, and aims to prevent improper adoptions and promote the integrity of international adoptions. The U.S. will officially become a member of the Hague Convention on April 1st, 2008. As of that date, the Department of State and the Department of Homeland Security will become much more involved in intercountry adoptions. The Department of State will be designated as the central authority for intercountry adoptions in the United States and will be responsible for making sure that the Convention is implemented as required. In order to implement the Convention, the Department of State will need to accredit U.S. adoption service providers, maintain a registry of adoption cases and implement a system of receiving complaints and comments about accredited adoption service providers.

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TANF AND I-601 WAIVER

On October 31, 2007, the AAO (Administrative Appeals Office)decided an I-601 case originating from Ciudad Juarez, Mexico. The AAO considered various pieces of information in deciding whether the applicant’s qualifying relatives demonstrated sufficient hardship to waive the applicant’s ten year re-entry bar. While the waiver application contained hardship information based on the qualifying relative’s medical conditions, the AAO relied heavily on the qualifying relative’s inability to support herself financially. The AAO was particularly concerned about the qualifying relative’s reliance on TANF (Temporary Assistance for Needy Families). While it is unclear whether the AAO will rely as heavily on the acceptance of TANF in other I-601 adjudications, this case may represent a new pattern for I-601 determinations.

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H-2B Legislation Update

Currently, seasonal employers are awaiting an extension of the Returning Worker Exemption which was a primary feature of the “Save Our Small and Seasonal Business Act of 2005.” Senator Barbara Mikulski (D-MD) proposed an amendment to an Appropriations Bill which would extend a one-year exemption for returning H-2B workers not to be included in the numerical cap of 66,000 visas. This amendment was written to be made retroactive to the beginning of Fiscal Year 2008 (October 1, 2007). Final approval is pending a joint House-Senate conference on this matter.

The Save Our Small and Seasonal Business Acts of 2007 are in the process of obtaining co-sponsors to Senate version. Proposing a five-year extension of the returning worker exemption has 35 co-sponsors and 40 are needed. The House Bill version proposes a permanent H-2B returning worker exemption and has 98 co-sponsors out of 100 needed.

While Senator Mikulski’s amendment is the most promising, we do not know the fate of this provision until the Appropriations Bill comes out of a combined House and Senate conference. However, regardless of the outcome, we urge all seasonal employers and users of the H-2B visa program to contact their Senators and Representatives in Washington, D.C. to express their support for these Save Our Small and Seasonal Business Acts of 2007.

For more information on contacting Congress, please click on the link below:

http://capwiz.com/aila2/issues/alert/?alertid=10162161

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NEW I-9 FORM ANNOUNCED

USCIS announced, on November 7, 2007, that it was releasing the much-awaited revised I-9 form. Employers are required to fill out an I-9 form for all employees at the time of hire. Our firm is actively involved in working with employers and making sure their employee verification program is working correctly including the proper preparation and handling of I-9 forms. The biggest change in the new rule concerns the documents that are acceptable to prove employment eligibility. For more information, see www.uscis.gov/files/pressrelease/FormI9FS110707.pdf

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STERN SELECTED TO BEST LAWYERS IN AMERICA®

DENVER (November 9, 2007) Immigration lawyer Ken Stern of Stern & Curray LLC was selected by his peers for inclusion in 2008 edition of The Best Lawyers in America® for immigration law.

Stern has been listed in this prestigious guide for more than 10 years.

Published biennially since 1983, but now published annually, The Best Lawyers In America® is widely regarded as the preeminent referral guide to the legal profession in the United States. The Best Lawyers in America® lists are based on an exhaustive peer-review survey whereby almost two million votes are cast on the legal abilities of other lawyers in their specialties.

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YOUR IMMIGRATION POLICY IS A COMPETITIVE ASSET


To many foreign professionals, a company’s policy about assisting employees in the green card process is a more important consideration than compensation, benefits or even the specific work assignment. Accordingly, a company-specific immigration policy should be given the same attention and importance as any other employee benefit.

A superstar software engineer from India is in an interview with a potential employer. The interview is proceeding famously when the applicant asks the recruiter to explain the company’s immigration policy. The recruiter starts stammering and explaining that the company has a number of foreign professionals on staff and the recruiter is sure they are treated very well but cannot explain the company’s rules for green card sponsorship. All of the positive momentum created up to that point comes to a grinding halt and the applicant starts looking at his watch and thinking about his next interview.

To many foreign professionals, a company’s policy about assisting employees in the green card process is a more important consideration than compensation, benefits, or even the specific work assignment. Accordingly, a company-specific immigration policy should be given the same attention and importance as any other employee benefit. Companies who have not considered, and articulated a company-specific immigration policy are at a great disadvantage in recruiting highly talented non-American citizen professionals.

The first issue a company must address is whether it wants to hire foreign professionals in the first place. Having a non-citizen professional is more cumbersome than hiring a U.S. worker since it involves obtaining a proper visa that authorizes the individual to be employed in the United States. Sponsoring an individual for a green card adds additional expense, time, and effort to the employment relationship. At the same time, sponsoring an employee for a green card creates an extremely high level of loyalty and it is a rare occurrence for a foreign professional to leave the sponsoring employer during the green card process which can take anywhere from two to five years.

When I speak to employer groups, I ask people in the audience to write down a number that would reflect the amount of money the company would pay to virtually guarantee that a high-performing IT professional would remain with the company for three to five years. The average amount indicated by the participants generally exceeds the cost involved in sponsoring an employee for permanent resident status. Furthermore, the expenses involved in the process can be shared with the employee and an agreement can be legally entered into whereby the employee agrees to reimburse part of the employer’s expenses should the employee leave prematurely. Sponsoring a high-performing employee for permanent resident status is truly a win-win situation.

In addition to attracting high-performing professionals, having a well articulated company-specific immigration policy will also avoid resentment and confusion that can be caused by the inconsistent treatment of foreign professional employees. The policy will also make it clear that the sponsored individual remains an employee-at-will and the fact that the company has sponsored the individual does not create a contract for employment.

The company-specific immigration policy should address such issues as how soon the company will initiate the green card process after the commencement of employment, how the fees and costs will be allocated between the employer and the employee, and a reimbursement schedule if the employee prematurely terminates employment. A “typical” policy would involve waiting six months before starting the green card process. The employer would pay 50 percent to 100 percent of the cost and expenses involved in the process. The employee would sign an “Employee at Will” statement which would also include a graduated repayment schedule that would decrease over time. In other words, if the employee voluntarily terminated employment within the first six months the employee would reimburse the company for 100 percent of the expenses incurred, up to that point in time, on the green card process. If the employee left after one year, the employee would reimburse the company for 50 percent of its expenses, etc. Our office has a number of templates which reflect different philosophies on all of these issues.

Creating a comprehensive company-specific immigration policy avoids confusion, builds morale, creates long-term employer-employee relationships, and helps the company attract and retain highly-qualified non-citizen professional employees.

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H AND L ADJUSTMENT APPLICANTS NO LONGER NEED I-485 RECEIPT NOTICES TO TRAVEL

In a new rule effective November 1, 2007, USCIS has removed the requirement that H and L adjustment applicants must travel with their receipt notice.

An adjustment applicant needs certain documentation in order to travel once the I-485 application has been filed. Advance Parole is the most common travel document used by adjustment applicants. Adjustment applicants who are on H or L status, however, can travel without adjustment of status under certain conditions. Before the new rule, H and L adjustment applicants needed to have their I-485 receipt notice at the time they re-entered the United States. This proved to be challenging in that it has been taking USCIS a number of weeks, if not months, to issue receipt notices thereby limiting travel during this period of time. Under the new rule, if a person is maintaining H or L status he or she can travel without first obtaining the I-485 receipt notice.

The new rule will help thousands of H and L adjustment applicants who seek to travel after they have filed for adjustment of status but before they receive the receipt notice.

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