Immigration News

by SCwpadmin SCwpadmin 92 Comments

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.

by SCwpadmin SCwpadmin 143 Comments

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.

by SCwpadmin SCwpadmin 45 Comments

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.

by SCwpadmin SCwpadmin 56 Comments

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.

by SCwpadmin SCwpadmin 25 Comments

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/.

by SCwpadmin SCwpadmin 93 Comments

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.

by SCwpadmin SCwpadmin 64 Comments

NEW ICE NO-MATCH REGULATION

On August 10, 2007, the Department of Homeland Security released an advance copy of the much-awaited Social Security “No-Match” regulation which determines what an employer must do if it receives a no-match letter from the Social Security Administration. The rule expands the definition of “constructive knowledge” and sets forth steps an employer must take if it receives a no-match letter.

Our office is following these developments which is part of our ongoing efforts to work with employers to create a specific employee verification program that takes into account all of the Federal and State laws on employee verification.

by SCwpadmin SCwpadmin 74 Comments

GOVERNMENT STEPS UP IMMIGRATION ENFORCEMENT

The Bush Administration announced on August 10, 2007, 26 new measures which continue or expand current policies or procedures for stepping up enforcement against employers who hire undocumented workers. Many politicians and leaders have reacted to the announcement according to their respective positions on immigration law and comprehensive immigration reform. Employers should take steps to make sure their employee verification systems are in compliance with State and Federal laws.

by SCwpadmin SCwpadmin 51 Comments

DOL Creates Email Account to Catch Violators

The Department of Labor has announced that they are creating an email address for people to report violators of the provisions of the recently-published “no substitution” rule. Employers need to be aware of the fact that starting July 17th employees may not pay any part of the fees, costs and expenses incurred in connection with preparing and filing a labor certification application. An employee can pay the fees and costs for filing the I-140 and adjustment of status. Violation of this rule can have serious repercussions.

by SCwpadmin SCwpadmin 26 Comments

State Department and CIS Engineer Dramatic Reversal on Priority Dates

In the early morning of July 2, the U.S. State Department indicated that it had received sufficient applications to distribute all of the remaining visa numbers for Fiscal Year 2007, and that the July Visa Bulletin would be amended accordingly. USCIS responded by indicating that all adjustment of status applications that will be filed in July pursuant to the Visa Bulletin will be rejected and returned to the applicant. In essence, not a single application for adjustment of status will be accepted in the month of July.

The joint announcements proved to be a crushing blow to permanent resident applicants who hoped to file for adjustment of status in the month of July. Even if the numbers had retrogressed in August, allowing applicants to file for adjustment of status in July would have provided many benefits. Adjustment applicants can obtain employment authorization and advance parole for themselves and their families, and are eligible for adjustment portability.

Our firm has started a letter-writing campaign to inform our elected officials in Washington about our displeasure with these actions. We encourage employers and permanent resident applicants to send emails and letters, or make phone calls, to their elected officials to register their feelings on this subject.

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