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| "Immigration Status", Volume 4, Number 4, Mach, 2010 |
3/7/2010 |
“Immigration Status” – Volume 4, Number 4, March 2010
Welcome to Alice M. Yardum-Hunter’s Immigration Status, a bimonthly newsletter that covers select, timely immigration law and procedural issues with each publication.
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TABLE OF CONTENTS
1. Announcements
2. Employers Beware: Worksite Enforcement to Increase, Reiterates Top ICE Official; ICE Also Announces Alternatives to Detention
3. I-9 Compliance: Steps Employers Can Take to Avoid Liability
4. Certain H-1B Employers and Their Workers Face New Hurdles and More Reasons to Anticipate DHS Compliance Site Visits
5. Visas for Entrepreneurs — Current Considerations
6. More Relief for Haitians?
7. Test the Waters? “Extraordinary Ability” Employment-Based Visas Can Be Approved in 15 Calendar Days
8. Family-Based Adjustment of Status and Naturalization Applications Moving Quickly
9. How To…
1. Announcements
1. Upcoming Speaking Engagement: On March 23, 2010, the Australian American Association will host a Tax & Immigration Law Seminar Update at the Ramada Plaza Hotel, 8585 Santa Monica Blvd., West Hollywood, CA, from 8:30 am – 10:00 am. It is open to all, but you must RSVP to Dan.Levek@aaanyc.org to attend the event.
2. Alice Yardum-Hunter has been honored again for the seventh year in a row with the “Super Lawyers” designation by Los Angeles Magazine and Law & Politics. The designation is based on a survey of 65,000 attorneys in the Southern California area who are asked to name the best lawyers in a variety of specialties based not on reputation, but on their personal experience of the attorney’s quality of work. The winners are vetted by a Blue Ribbon panel of attorneys, as well as checks of malpractice claim records, and disciplinary actions by the State Bar of California. Winners are reserved for those within the top 5% attorneys in the practice of law generally. In the immigration practice for 2010, there are fewer than 20 winners among approximately 1,000 attorneys. This is within the top 2% of attorneys in the immigration law practice in Southern California.
3. January Archived Speaking Engagement Materials Available – Ms. Yardum-Hunter spoke at the three Professionals in Human Resources and at a continuing legal education seminar at the law firm of Ervin, Cohen & Jessup in January. Topics covered included H-1s, I-9, TN, Workplace Enforcement, DOL Audits, CIS Site Visits, Permanent Labor Certifications, O-1, Employment Based and Family Based permanent petitions, as well as introduction to the panoply of other permanent immigrant and temporary nonimmigrant visas.
2. Employers Beware: Worksite Enforcement to Increase, Reiterates Top ICE Official; ICE Also Announces Alternatives to Detention
At a recent public leadership forum held in Washington, DC, Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement (ICE), John Morton, outlined his priorities and vision for the United States’ second largest enforcement agency. Those priorities, he said, include: (1) preventing terrorism and protecting our national security; (2) securing the borders and protecting against transnational crime; and (3) ensuring that our immigration laws are enforced by removing criminal aliens, executing final orders of removal, and continuing worksite enforcement with a focus on employers. Morton also discussed his plans for detention reform.
Worksite Enforcement. ICE already has stepped up its campaign of targeting employers who fail to comply with the hiring and paperwork requirements of federal law, abandoning the previous Administration’s enforcement efforts aimed at undocumented workers. In November alone, ICE announced that 1,000 companies had been served with a Notice of Inspection and an Administrative Subpoena and that more would follow. Mr. Morton stated that the agency will be increasing worksite visits and aggressively pursuing civil and criminal prosecutions against employers who knowingly hire undocumented workers. Given ICE’s overall goal of creating a culture of employer compliance, Morton all but guaranteed an increase in the imposition of fines.
Detention Reform. Mr. Morton expressed commitment to an aggressive overhaul of the current detention system to reflect the diversity of those detained. He mapped out a plan to change the administration of detention facilities, improve conditions at facilities (including access to medical care), and modify the facilities themselves. Make no mistake. ICE is committed to continue grand-scale detention. But, ICE also is exploring alternatives to detention where it has discretion. A pilot alternative detention program is expected to be launched later this month, which may include ankle bracelets and intensive supervision for individuals who might otherwise be detained. Stay tuned.
3. I-9 Compliance: Steps Employers Can Take to Avoid Liability
With worksite enforcement a priority for ICE, employers need to take heed: even employers that have not been accused of knowingly employing undocumented workers can expect site visits and can be held liable for clerical violations and subject to steep civil fines. Well-intentioned employers often find inadvertent paperwork errors or technical violations during their internal audits; some seemingly harmless errors and omissions are actually considered substantive violations that carry significant fines. For example, the failure of an employer to ensure that an individual employee checks the Form I-9’s box for “citizen,” “lawful permanent resident,” or “authorized to work until a specified date” is a substantive violation. An employer’s failure to provide the date of hire in the attestation portion of the I-9, while a technical violation, is still actionable even if other parts of the form are dated.
Audit I-9s. Human resource personnel and others involved in the I-9 process should consider auditing their actual I-9 files as well as their compliance procedures. Updating and/or appropriately correcting technical violations on previously completed I-9 forms may be necessary. Re-verifying certain employees also may be required. While such remedial actions may not shield an employer from liability and fines, the amount of such fines will be mitigated by a number of factors, including the employer’s good faith, the seriousness of the violation, and the employer’s previous violations.
Develop a Compliance Plan. Employers also may want to consider developing an immigration compliance plan that sets forth procedures for implementing and monitoring the verification of an employee’s authorization to work in the United States. Such a plan should include appropriate employee training, reporting obligations, as well as safeguards to ensure that whatever plan is implemented does not run afoul of U.S. anti-discrimination laws. In addition to good business practice, I-9 compliance also may impact a company’s ability to compete for contract work. Some major corporations are requiring immigration compliance provisions and certified audits in their vendor contracts; a company with a history of immigration law violations may jeopardize its ability to win such contracts. I-9 compliance is also an issue when an employer is involved in corporate re-structuring and where I-9 liabilities of an acquired corporation are assumed. This could mean serious violations and fines.
This area of immigration compliance can be confusing and complex, and can have unintended legal consequences. Employers are wise to take preventive measures and to consult with an attorney before embarking upon this alone.
4. Certain H-1B Employers and Their Workers Face New Hurdles and More Reasons to Anticipate DHS Compliance Site Visits
In a recent guidance memo, U.S. Citizenship and Immigration Services (USCIS) has appreciably altered its definition of what constitutes a valid employer-employee relationship as it relates to H-1B workers and imposes new rules on the types of activities in which H-1B workers can engage. The memo will have a significant impact on certain new H-1B petitions and certain extensions.
Under the new rules, workers who are placed at third-party worksites will no longer qualify for H-1B visas as employees. Nor will independent contractors, such as sales representatives. And, agents as petitioners will not be able to qualify as H-1B employers. The memo also departs from long-standing precedent to conclude that persons with a substantial interest in a petitioning company, in most cases, cannot qualify as a beneficiary of an H-1B visa. This means that co-owners of a business may not be able to obtain an H-1B. The guidance memo also requires that the petitioner establish that the employer-employee relationship exists throughout the requested H-1B validity period.
Although USCIS advises that it will review a number of factors to determine whether a valid employer-employee relationship exists, the petitioner must establish its right to control the beneficiary’s employment, including the ability to hire, fire, supervise the beneficiary, and direct his work.
These new requirements will govern extensions of previously approved H-1B petitions. Moreover, USCIS advises that the validity of the employer-employee relationship can be reviewed by USCIS during post-adjudication compliance review site visits.
Presumably USCIS announced these changes to give affected employers and employees some notice before the filing of new H-1B petitions for the next fiscal year begins. In just a few short weeks, on April 1st, employers will be able to file new H-1B petitions for their professional employees who will commence work on October 1, 2010.
Employers should take the time now to review whether they are maintaining valid employer-employee relationships as well as identify new hires in their workforce who will require a first-time H-1B visa. A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance, especially in light of the Department of Homeland Security’s (DHS) stepped-up H-1B site visit enforcement efforts. (In the fall of 2009, DHS officials began compliance review visits to 25,000 H-1B petitioner-employers.) DHS now has another reason to conduct such compliance site visits.
5. Visas for Entrepreneurs — Current Considerations
Over the last couple years, the immigrant investor program (also called the EB-5 program) has gained popularity and media attention as a viable option for those of means to obtain lawful resident status. Even those traditionally less-well-off financially have considered the program in light of ever growing immigrant visa backlogs and the devaluation of the dollar (which means fewer and fewer euros and yen are needed to meet the $1 million investment requirement (or $500,000 in certain cases)). Nevertheless, various issues have deterred would-be eligible applicants from applying for an investor green card including the uncertainly of USCIS interpretations of program requirements, and, more recently, USCIS’ fixation on the source and chain of custody of funds used for the investment.
U.S. law requires that the funds used for investment in an American enterprise be legitimate. But, in the EB-5 context, proving legitimacy is not always so straightforward. For example, gift or inheritance capital may have been omitted from tax records and may be hard to trace; other funds, especially when commingled with old money, may be difficult to segregate and hard to document. Another deterrent for EB-5 applicants is the requirement that once becoming permanent residents, immigrant investors become subject to U.S. taxation on their worldwide income.
In light of these and other issues, potential immigrant investors may want to consider E-2 treaty investor classification instead. E-2 nonimmigrant status resembles green card status in many ways. E-2 nonimmigrants may remain in the United States indefinitely (with appropriate extensions), are not required to maintain ties abroad, can be engaged in self-employment if in furtherance of the investment, and their spouses can obtain work authorization.
Who is eligible for E-2 status? Treaty investor status is available to certain nationals where a treaty of Freedom, Commerce and Navigation exists between the U.S. and the country of the applicant’s nationality. (Certain bilateral investment treaties also may confer eligibility.) For an eligible individual to qualify for E-2 visa status, he or she must meet a number of requirements, including issues governing ownership and control of the investment, the individual’s duties associated with the investment, and the investment itself (it must be active and “at risk”). Significantly, however, there is no specific amount of capital that must be invested in a business; instead, the rules require that the investment be substantial and “proportional” to the overall capitalization of the enterprise. In practical terms, this means that an investment for a small business can be as little as $100,000, or even less, depending on the particular business and its location. E-2 nonimmigrant status may be worth considering for would-be EB-5 investors who are eligible.
6. More Relief for Haitians?
Shortly after the January 12, 2010 earthquake that devastated much of Port-au-Prince, DHS suspended deportations of Haitians and extended temporary protected status (TPS) to tens of thousands of undocumented Haitians already in the United States. TPS is granted by DHS to individuals already in the U.S. who are nationals of countries subject to environmental disaster, armed conflict or other extraordinary and temporary conditions. Beneficiaries are granted employment authorization and a stay of removal while in TPS status. DHS also put into place new procedures to accommodate the thousands of Haitian orphans waiting to finalize their adoptions. And, just recently, 200 critically injured children were given humanitarian visas to enter the United States for medical treatment. USCIS also has stated that it would take additional steps to assist Haitian foreign nationals during the crisis, and, where appropriate, would work to issue favorable adjudications for applications for change or extension of nonimmigrant status, grant an additional period for advance parole, and authorize nonimmigrant students’ requests for off-campus employment and work authorization, among other measures.
But, what about the immediate relatives of Haitian U.S. citizens and lawful permanent residents who are still in Haiti? There are thousands of Haitians who could be eligible for immediate relief as close relatives of U.S. citizens or lawful permanent residents. The majority of these close family members eventually will be allowed to obtain green cards and immigrate to the United States but many face years of waiting due to extensive visa backlogs. One option discussed during the weeks immediately after the catastrophe is the acceleration of the cases already approved. Another option could include offering humanitarian “parole” to those who have a future basis to become lawful permanent residents. These individuals could live and work in the United States while they waited here for their visas to become available, rather than in Haiti. In addition, they could send money back to Haiti, an important source of foreign remittances and aid. Such an option would help alleviate the crisis in Haiti.
Although much aid has been sent to Haiti from a myriad of countries and individuals, numerous obstacles impede delivering it. Moreover, there continues to be concern that if the situation in Haiti destabilizes further, a mass exodus will occur. Federal officials repeatedly have stated that they want to prevent desperate Haitians from risking the dangerous journey to the United States on small boats bound to Florida, and DHS Secretary Janet Napolitano cautioned that Haitians who arrived to the U.S. after January 12, 2010 will not be eligible for TPS and will be repatriated to Haiti. Carving out additional immediate relief for Haitian nationals not only makes sense but is the right thing to do.
7. Test the Waters? “Extraordinary Ability” Employment-Based Visas Can Be Approved in 15 Calendar Days
Some highly skilled professionals, even those who hold long-term, nonimmigrant visa status (G-4 international workers, O extraordinary ability nonimmigrants, E treaty trader and investors) and who are not currently seeking a job change, may want to consider exploring their green card options by applying for an extraordinary ability immigrant visa. While this visa category is reserved for those foreign nationals with top credentials, visa are immediately available – there is no backlog for any country – and individuals can self-petition – they do not need an offer of employment. Moreover, under rules that were issued in June, these cases can be processed under “premium processing.” In other words, for an additional $1,000 filing fee, USCIS will adjudicate the case within 15 calendar days. This category clearly is not available to everyone. But, eligible foreign nationals can complete this first step in the two-step green card process and find out if obtaining a green card this way is a viable option.
8. Family-Based Adjustment of Status and Naturalization Applications Moving Quickly
According to USCIS processing times, generally naturalization cases are taking only five months from application to interview; adjustment of status cases for immediate relatives are taking from about five to eight months. Practice in the Los Angeles area is even faster. This is a tremendous improvement in processing times for these types of cases; in the past, naturalization applications had been taking up to two years. With filing fees likely to increase in the near future according to USCIS and the current quick turnaround, now may be the best time for eligible individuals to file.
9. How to:
Check processing times or the status of a particular immigration case
Report your change of address to CIS
File your change of address electronically
Schedule a consultation with Ms. Yardum-Hunter
Until May, Happy Immigrating!
Sincerely,
Alice M. Yardum-Hunter
Certified Specialist, Immigration & Nationality Law
State Bar of California, Bd. of Legal Specialization
16055 Ventura Blvd., Suite 902
Encino, CA 91436
Telephone: (818) 609-1953
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