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.
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
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
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.
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.
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.
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.
IMPLEMENTATION OF SOCIAL SECURITY NO MATCH RULES DELAYED AGAIN
At a hearing on October 1, a Federal Court Judge in California extended a Temporary Restraining Order against the Department of Homeland Security and the Social Security Administration from implementing new rules on Social Security No-Match Letters. The judge said he needed 10 more days to prepare a decision in the case. In the meantime, the government cannot mail the 140,000 already-prepared letters warning employers that they could face fines if they continued to employ workers whose Social Security number and names do not match government records.
SS No-Match Letters Update
Judge issues Temporary Restraining Order for New No-Match Rules: A federal district judge in San Francisco blocked the government from implementing its new rules on Social Security No-Match letters that were due to go into effect on September 14th. In a suit filed by the AFL-CIO and the American Civil Liberties Union, the judge granted a request for a nationwide temporary restraining order that will be in effect until October 1, when another judge will hold a hearing to decide whether to issue a permanent injunction in the case. We will continue to monitor the situation and put updates on our website.
Social Security No-Match Regulation Broadens Definition of "Knowledge"
On September 14, 2007, a new Immigration and Customs Enforcement (ICE) regulation goes into effect that will change the way that businesses must deal with the receipt of no-match letters from the Social Security Administration (SSA) and similar letters from ICE after an I-9 audit. Since 1986, employers have been prohibited from knowingly hiring or continuing to employ unauthorized workers. The old rules make employers responsible not only for what they know (actual knowledge), but also what they should know (constructive knowledge). The new rule expands the definition of “constructive knowledge.” If an employer does not follow the new regulation’s “safe harbor” steps after the receipt of a no-match letter, ICE could use this as evidence that the employer has constructive knowledge that an employee is unauthorized to work in the U.S.
Employers that receive no-match letters must complete the following steps in order to take advantage of the “safe harbor” provision:
1) Check company records for clerical errors within 30 days upon receipt of a no-match letter and, if possible, correct the record and verify that there is a match with the relevant agencies (for SSA no-matches, employers can use the Social Security Number Verification System (SSNVS) through www.ssa.gov/employer/ssnv.htm or 1-800-772-6270). Employers should make a record of the manner, date and time of the verification.
2) If there is still a no-match, ask the employee to confirm that the employer’s records are correct within 30 days upon receipt of a no-match letter. If there is an error, then correct the record and verify that there is a match with the relevant agencies. If the records are correct, ask the employee to pursue the matter with the relevant agency. Tell the employee that he or she has 90 days to address the situation and get the matter resolved.
3) If the no-match is not resolved within 90 days after receipt of the letter, complete a new I-9 for the employee within 93 days from the receipt of the letter. However, the employer cannot accept a document with the SSN that was the subject of the no-match letter. Also, identity documents (I-9 List B) and documents used to establish both identity and eligibility for employment (I-9 List A) must contain a photograph.
4) If the no-match is not resolved and the employee’s identity and work authorization cannot be verified through the I-9 process, then the employer must take action to terminate the employee or risk liability for knowingly continuing to employ an unauthorized worker.
It is important to remember that companies should apply policies consistently to all employees with no-match issues to prevent violations of anti-discrimination laws. ICE officials have recently indicated that worksite enforcement is a top priority for the agency. The new “no-match” regulation is only one piece of their enforcement strategies. Employers can face severe civil and criminal penalties for violations, including fines and jail time.
Our firm has taken a number of steps in response to ICE’s expansion of worksite enforcement. We have created a “bundled services” approach to provide employers with a package of services to protect themselves in the new climate of ICE enforcement. We have also scheduled a special session as part of our advanced seminar on September 28, 2007 to address these issues. For more information, please use the “Contact Us” link on our website http://www.secalaw.com/.
USCIS TO TAKE OVER HUMANITARIAN PAROLE
The Government announced that USCIS will be taking over the adjudication of applications for humanitarian parole from U.S. Immigration and Customs Enforcement (ICE). Humanitarian parole is given to individuals who can show a compelling humanitarian need to enter the United States but do not qualify for any visa. These applications considered on a case-by-case basis and are granted very sparingly. The application procedures for humanitarian parole within the Department of Homeland Security will remain the same. It is unknown whether this transfer of authority will lead to more or less favorable adjudications.