Month: January 2011

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Revised I-9 Handbook for Employers

The Handbook for Employers is a guide to help employers in the Form I-9 process. It has been updated (Rev. 1/05/11) with new information about applicable regulations, including electronic storage and retention, and processing an employee with a complicated immigration status. There are new visual aids and examples of new relevant USCIS documents. The handbook also includes expanded guidance on lawful permanent residents, exchange visitors and foreign students, and employees porting to H1-B status. You can find The Handbook for Employers, also known as the M-274, on the United States Citizenship and Immigration Services website, www.uscis.gov.

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Colorado Employment Verification Law Audits

All Colorado employers are subject to a possible employment verification law compliance audit by the Colorado Department of Labor and Employment (CDLE). Compliance audits may originate from complaints, random selection, or situations where there is reason to believe an employer has not complied. The purpose of the audits is to ensure that employers are fulfilling their obligation to adhere to the employment verification and documentation requirements specified in § 8-2-122, C.R.S. It has been reported that the CDLE is sending audit letters to two hundred employers each month.

The state employment verification laws are different and separate from federal I-9 requirements. For each new employee hired on and after January 1, 2007, Colorado employers must complete affirmation forms and retain copies of the employee’s Form I-9 identity and employment authorization documents. A sample affirmation form may be found at www.colorado.gov/cdle/evr.

The CDLE reportedly wants to educate companies about the state’s employment verification laws. However, companies should also be reminded that the law includes fines of up to five thousand dollars for the first offense and up to twenty-five thousand dollars for subsequent offenses for an employer who, with reckless disregard, fails to submit the required documentation when requested by the CDLE.

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New Export Control Attestation Requirement on I-129

Employers should be aware of the new requirement to complete an export control attestation under penalty of perjury when filing for certain non-immigrant visas for employee beneficiaries. The Commerce Department has suspended the requirement to answer this question on the I-129 until February 20, 2011. In order to accurately complete the new attestation on Form I-129, used for H, L, and O visa status applications, a company must certify that it has reviewed the applicable regulations and either an export license is not required or an export license is required and will be obtained before any controlled technology and data will transfer to the foreign national.

Export classifications and licensing determinations can be complicated and employers do not want to make a misrepresentation on Form I-129. Employers should work closely with an attorney who has expertise in export control law to make the determination.

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H-1B Visa Availability Coming to an End

As of December 31, 2010, USCIS had accepted 57,300 cap-eligible petitions which have either been approved or are still pending.

The H-1B cap is 65,000 H-1B numbers. Up to 6,800 visas can be set aside for applicants from Chile and Singapore. The USCIS Ombudsman has advised AILA Liaison that 6,358 H-1B numbers that were unused last year have been added to this year’s pool. Therefore, the total number of H-1Bs available for this year is 64,500. Since USCIS has accepted 57,300 cap-eligible petitions, only approximately 7,000 visa numbers were available as of the end of 2010.

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