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All public and private Colorado employers are now required to the complete the specific Colorado Affirmation form created by the Colorado Department of Labor and Employment. The new form can be used for employees hired between October 1, 2012 and October 1, 2014 and should not be used for those hired before September 6, 2012.  As with the previous version, employers are required to keep the form along with copies of the documents provided by the employee for the completion of the I-9.  The affirmation and documentation must only be kept for the duration of employment.  Stern & Curray recommends that affirmation forms and accompanying documentation be purged when the employment relationship ends.

U.S. Citizenship and Immigration Services is working on several revisions to Form I-9, including expansion of the form to two pages, expansion of the instructions to six pages, changes to Section 1, and a revised layout.  The new version has not yet been approved so employers should continue to use the version of the form with the expiration date of 8/31/12 until the new one is posted at www.uscis.gov/files/form/i-9.pdf.

The recently issued visa bulletin for November 2012 indicates that the EB-2 worldwide category will be current as of November 1, 2012.  The EB-2 worldwide category retrogressed in July 2012 and has remained backlogged to date.  Once the category becomes current, a visa number is guaranteed to be available for all EB-2 applicants who were not born in India or China through the end of the month.  Please check our blog frequently for updates on visa bulletin movement.

Gridlock in Congress has prevented the passage of new immigration visa opportunities for entrepreneurs, including the “start-up” visa program. On August 2, 2011, the Secretary of Homeland Security and the Director of USCIS announced a series of initiatives to make current immigration law more responsive to the needs of entrepreneurs. This initiative creates some interesting new approaches for obtaining nonimmigrant and immigrant visas for entrepreneurs and the talented professionals who they need to be successful in their enterprises.

Our firm is developing strategies for using this new initiative, in conjunction with existing immigration rules and regulations, to create a platform for obtaining appropriate visas for foreign-born entrepreneurs and the talented foreign-born individuals they seek to hire.

Please contact our firm for further information.

Unfortunately, prevailing wage determination requests to the US Department of Labor remain under suspension with no indication of when they will resume. Due to federal litigation, the Department of Labor is under a court order to reissue a large number of H-2B wage determinations. They report that they are using all their resources to comply with the court order and therefore all other prevailing wage determinations are under suspension. The American Immigration Lawyers Association is attempting to obtain information regarding what, if anything, can be done in time sensitive cases.

In a recent decision, the Board of Alien Labor Certification Appeals (BALCA) held that the required journal ad for a special handling labor certification application does not have to be a print ad. Specifically, BALCA determined that an ad placed in an electronic journal filled the requirements of 20 CFR §656.18(b) of placing an ad in a “national professional journal”.