Immigration Challenges Quotas Delays and Enforcement Annual Seminar

Immigration Challenges: Quotas, Delays, and Enforcement Annual Seminar – April 10, 2008 Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd. , 17 th Floor Philadelphia, PA 19103 215. 825. 8600 317 Madison Ave. Suite 1518 New York, NY 10017 212. 796. 8840 www. klaskolaw. com

H. Ronald Klasko, Esq. n Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years. n Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two practicing lawyers to receive the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. n Ron has been chosen as one of twelve top tier immigration lawyers in the U. S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 edition selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. n Ron is a graduate of the University of Pennsylvania School of Law. Klasko, Rulon, Stock & Seltzer, LLP

Richard R. Rulon, Esq. n Rich Rulon has been practicing immigration law for more than 30 years. Rich is a member of the American Immigration Lawyers Association (AILA), is a former Chair of AILA’s Philadelphia Chapter, has served on the Board of Governors of AILA and the Immigration Reform Committee. He has also served on the Board of Trustees of the American Immigration Law Foundation (AILF) including six years as Chairman and was the recipient of AILF’s 2005 Honorary Fellow Award for lifelong service to the field of immigration and nationality law. n Rich has been a lecturer at seminars on immigration law subjects and at AILA Annual Conferences; has authored numerous articles on immigration law topics and has played and continues to play an active role in helping to shape immigration reform legislation. n Rich was selected for inclusion in The Best Lawyers in America and also as a “Pennsylvania Super Lawyer. ” n Rich is a graduate of the University of Pennsylvania Law School. Klasko, Rulon, Stock & Seltzer, LLP

William A. Stock, Esq. n William A. Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for nearly 15 years. n Bill is featured in The Chambers Global Guide, The Best Lawyers in America, and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law. n Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law. Klasko, Rulon, Stock & Seltzer, LLP

Suzanne B. Seltzer, Esq. § Suzanne B. Seltzer is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, and manages the New York office. Suzanne is well known for her representation of universities, hospitals and research institutions and their medical and research personnel in obtaining extraordinary ability and national interest waiver immigrant petitions, O-1 nonimmigrant visas, and waivers of the two-year home country residence requirement. n Suzanne is a member of the National Coalition for Access to Healthcare, Co-Chair of AILA’s NY District Director Liaison Committee, and Co-Chair of the NYC Anti-Trafficking Network’s legal subcommittee. Suzanne is a frequent speaker on immigration options available to international medical graduates and research scientists, and is the author of several articles. n Suzanne was honored with the Cornerstone Award by the Lawyers Alliance for New York in recognition of her outstanding contributions to pro bono work on behalf of non-profit agencies, and the Samuel E. Klein Pro Bono Award for her work on behalf of victims of human trafficking. n Suzanne is named in The Best Lawyers in America, Super Lawyers, and holds the highest rating of “AV” (Lexis. Nexis Martindale-Hubbell). n Suzanne obtained her JD from Georgetown University Law Center. Klasko, Rulon, Stock & Seltzer, LLP

Elise A. Fialkowski, Esq. n Elise Fialkowski has practiced immigration law for more than 14 years and is a Partner at Klasko, Rulon, Stock & Seltzer, LLP, with offices in Philadelphia and New York. Elise regularly assists U. S. and international corporate clients who seek to hire or transfer foreign employees as well as foreign individuals seeking employment in the United States as health care professionals, executives, managers, and scientists. n Elise has particular expertise in advising employers with regard to compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification and worksite enforcement issues. A member of the American Immigration Lawyers Association, Elise serves on the Executive Committee of its Philadelphia Chapter. n A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B. A. 1987), Elise received her law degree from the Villanova University School of Law (J. D. , magna cum laude, 1991). Klasko, Rulon, Stock & Seltzer, LLP

Theodore J. Murphy, Esq. n Theodore J. Murphy (Ted) serves as counsel to Klasko, Rulon, Stock & Seltzer, LLP and has been involved with immigration for the past 14 years - over a decade with ICE and the former INS. n As one of the government's most experienced attorneys, Ted represented the Agency in all matters before the Immigration Courts and Board of Immigration Appeals, handling criminal, national security, fraud and employer sanction cases. Ted has served as a Special Assistant United States Attorney and as an Adjunct Professor of Law at Temple University Beasley School of Law. n In addition, he is a veteran of the United States Army's 82 nd Airborne Division. Ted received his undergraduate degree at Georgetown University (B. A. 1983) and his Law Degree (J. D. 1994) and Masters of Law (International Law) (LL. M. 1997) from Temple University. Klasko, Rulon, Stock & Seltzer, LLP

Immigration Challenges: Quotas, Delays, and Enforcement Agenda n n n Introduction Legislative and Regulatory Update Trainees Labor Certification Update Upgrading to a Higher Preference Category Klasko, Rulon, Stock & Seltzer, LLP

Immigration Challenges: Quotas, Delays, and Enforcement Agenda (cont’d) n n n Advising the Eternal Adjustment Applicant Immigration Consequences of Criminal Activities Dealing with Government Adjudication Delays Worksite Enforcement Questions & Answers Klasko, Rulon, Stock & Seltzer, LLP

Legislative and Regulatory Update Richard R. Rulon, Esq.

Prospects for Comprehensive Immigration Reform (CIR) in 2008 n n Very unlikely Piecemeal legislation possible on enforcement and on essential and high-skilled workers Klasko, Rulon, Stock & Seltzer, LLP

Enforcement Legislation House SAVE Act being pressed in House ¨ Use of E-Verify system by all employers within 4 years of enactment ¨ Dramatically expands SSA “no match letter” program ¨ Directs increased resources to border and interior enforcement Klasko, Rulon, Stock & Seltzer, LLP

Enforcement Legislation Senate (cont’d) Bills have been introduced by Republicans to: ¨ Create mandatory minimum prison sentences for FNs caught entering the US illegally ¨ Require all employers to use electronic employment verification system and terminate workers whose work eligibility cannot be verified Klasko, Rulon, Stock & Seltzer, LLP

Enforcement Legislation (cont’d) Senate ¨ Withhold Foreign Aid for countries that deny or delay the acceptance of their nationals who have been ordered removed from the U. S. and to prohibit the issuance of visas for nationals of those countries Klasko, Rulon, Stock & Seltzer, LLP

Employment Relief Legislation House n n Rep. Smith (R-TX) introduced H. R. 5642 which would increase the numerical limitation with respect to H-1 Bs for fiscal years 2008 and 2009 Rep. Giffords (D-AZ) introduced H. R. 5630 which would increase the numerical limitation on H-1 Bs and includes new protections for U. S. workers Klasko, Rulon, Stock & Seltzer, LLP

Employment Relief Legislation House n (cont’d) Rep. Kennedy (D-RI) introduced H. R. 5634 which would exempt from numerical limitations any alien who has received a Ph. D. from an institution of higher education within the 3 -year period preceding such alien’s petition for special immigrant status Klasko, Rulon, Stock & Seltzer, LLP

Employment Relief Legislation (cont’d) Senate n No employment relief legislation introduced yet (other than the SKIL Bill which was re-introduced last year and is still pending) Klasko, Rulon, Stock & Seltzer, LLP

Employment Relief Legislation (cont’d) Prospects for passage n Not very likely unless impacted employers turn up the heat by writing, calling and meeting with their Members of Congress. Some possibility of H-1 B and H-2 B relief coupled with some version of SAVE Act making employment verification using E-Verify mandatory Klasko, Rulon, Stock & Seltzer, LLP

Prospects for CIR Legislation in 2009 Presidential Candidates n All three favor some form of CIR Congress n If both Houses remain in control of Democrats, CIR legislation is possible if actively supported by new President Klasko, Rulon, Stock & Seltzer, LLP

Significant Regulations n DHS proposes to repromulgate without change the “No Match” Regulation issued in August 2007 ¨ “No Match” letter can be used as evidence that employer “knowingly” hired an unauthorized worker if data mismatch not resolved Klasko, Rulon, Stock & Seltzer, LLP

Significant Regulations (cont’d) n New Interim OPT regulation issued 4/4/08: ¨ Students with degrees in science, technology, engineering and mathematics may apply to extend OPT by additional 17 months if their employers are participating in E-Verify ¨ Any student on OPT seeking a change of status to H -1 B will receive automatic extension of their status until H-1 B status begins on 10/1/08 or H-1 B application is denied Klasko, Rulon, Stock & Seltzer, LLP

The BAD News for 2008 n n Increased employer sanctions Expanded deportability Continuing visa backlogs Little, if any, meaningful relief for high tech and essential workers Klasko, Rulon, Stock & Seltzer, LLP

Trainees Elise A. Fialkowski, Esq.

F-1 Optional Practical Training: What is it n n All Students: 12 months OPT – “Optional” When and how to take it (Full or Part time, Pre- or Post Completion) “STEM” Students: Additional 17 months May Be Full Time After Coursework Completed Requires Recommendation of School and USCISissued Employment Authorization (EAD) Klasko, Rulon, Stock & Seltzer, LLP

F-1 Optional Practical Training: New Requirements n All Students in OPT: ¨ Unemployment during 12 months of OPT may not exceed 90 days in aggregate ¨ Must report changes in employment status and address to school for entry into SEVIS n Students in 17 -month “STEM Extension” ¨ Unemployment during 29 months of OPT may not exceed 120 days in aggregate ¨ Employer must agree to notify school of termination ¨ Student must make “validation reports” to school every 6 months for entry into SEVIS Klasko, Rulon, Stock & Seltzer, LLP

F-1 Optional Practical Training: “Cap Gap” Prevention n Covers All Students in OPT and valid F-1 status as of 4/1 whose petitions are selected in the “H-1 B lottery” if a Change of Status was requested Grants Automatic Employment Authorization during the “Cap Gap” (end of EAD to start of H-1 B) Does not require degree in STEM field or Employer Participating in E-Verify Klasko, Rulon, Stock & Seltzer, LLP

F-1 Optional Practical Training: New “STEM Extension” n n Student must be in first 12 months of OPT, may be approved for 17 months further OPT (for 29 months of OPT, or up to 35 months when eligible for “cap gap” protection) Student must have earned a bachelor’s, master’s or doctoral degree in a designated Science, Technology, Engineering or Mathematics (“STEM”) field Klasko, Rulon, Stock & Seltzer, LLP

F-1 Optional Practical Training: New “STEM Extension” (cont’d) n n n Must be based on specific job offer, in student’s specific field, with new recommendation from DSO Must apply for new EAD, but grants automatic Employment Authorization if timely filed (end of EAD to start of new EAD) Employer must be Participating in E-Verify Klasko, Rulon, Stock & Seltzer, LLP

B-1 Training Visa n n n Training not available abroad Training is to benefit foreign national’s career abroad No productive employment Source of salary--compensation abroad Limited time/prepare alien for POE Klasko, Rulon, Stock & Seltzer, LLP

J-1 Exchange Visitor n n Program sponsor/ skills list / two year return residence requirement 6/19/07 Rule Revised Intern and Trainee reqs. Intern: (1) current enrollment in post-secondary institution outside the US OR (2) Graduation w/i last 12 months from post secondary institution outside the US ¨ Trainee: (1) a degree or prof. certificate from an academic institution outside of the US plus one year of non-US work experience related to training OR (2) at least five years of non. US work experience related to training ¨ n Maximum duration: Intern 12 months / Trainee 18 months (limitation agriculture & hospitality & tourism 12 months for either category) Klasko, Rulon, Stock & Seltzer, LLP

H-3 Trainees n Formal training program required Productive employment incidental to training Training will qualify alien for position abroad n Training up to 2 years n n Klasko, Rulon, Stock & Seltzer, LLP

Klasko, Rulon, Stock & Seltzer, LLP

Labor Certification Update William A. Stock, Esq. AILA DOL Liaison Committee

Backlog Centers Are No More n n Roughly 364, 000 Cases decided between March 25, 2005 and October 31, 2007 Only about 13 cases left Philadelphia and Dallas Centers Have Been Shut Down (were 75% of DOL Labor Cert Budget) Remaining cases (and any remanded appeals) will be handled at the Chicago National Processing Center and the National Office Klasko, Rulon, Stock & Seltzer, LLP

Unresolved Backlog Center Cases n n n Lost Certifications: Must File I-140 without it, though the deadline is passed Litigation Would Be Necessary for Any Remaining “Missing” Cases Amendments and White Out Not Stamped by DOL Are Questioned by USCIS Klasko, Rulon, Stock & Seltzer, LLP

PERM Processing: Progress? n DOL will “Specialize” the Two National Processing Centers ¨ Atlanta: All PERM Labor Certifications ¨ Chicago: All H-2 B Labor Certifications n n Resources Used to Run Backlog Centers Now Allocated to PERM and H-2 B – Expect Audits and Supervised Recruitment Audit Rate: DOL will not reveal, but significantly increased ¨ As of 12/31/07, 44% of pending cases were in “Audit Review” status Klasko, Rulon, Stock & Seltzer, LLP

PERM Processing: Current Issues n n When Is “Kellogg” Language Required? Are Employer’s Names on the Posted Notice of Job Opportunity? Are Advertisements Specific Enough? When Is “Business Necessity” Required? Klasko, Rulon, Stock & Seltzer, LLP

Business Necessity n n n Explains why the Requirements are Reasonable and Necessary to Do the Job A Detailed Employer’s Statement is the Foundation Employer’s Preexisting Documents are Convincing Job Descriptions ¨ Resumes of Colleagues/Prior Employees in the Position ¨ n Outside Documentation May Be Helpful Expert Opinions ¨ Statements from Customers or Competitors ¨ DOL Publications (Occupational Outlook Handbook, etc) ¨ Klasko, Rulon, Stock & Seltzer, LLP

New Rules in 2007 n n Labor Certifications May Not Be Bought or Sold Attorney’s Fees and Other Labor Certification Costs to be Borne by the Employer “Substitution of Beneficiary” Is No More Labor Certifications Expire 180 Days After Submission Unless Filed With an I-140 ¨ USCIS: One filing within 180 days satisfies requirement ¨ Subsequent petitions can be based on expired LC Klasko, Rulon, Stock & Seltzer, LLP

PERM Processing: The Future n n n Will We See A Fee for Labor Certifications? Building Capacity for H-2 Bs, More Audits Release of Data; Possibility of Longitudinal Studies Reengineered Form in Effect January 1, 2009 LCA Adjudication Process Will Be “Employer Account” Based as of January 1, 2009 – and may take 7 days for an LCA Klasko, Rulon, Stock & Seltzer, LLP

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Upgrading to a Higher Preference Category Suzanne B. Seltzer, Esq. AILA Vermont Service Center Liaison Committee Klasko, Rulon, Stock & Seltzer, LLP

What are Preference Categories? Order in which visas are made available n 1 st Preference (Eb-1) ¨Multi-National Executives/Mgrs ¨Aliens of Extraordinary Ability ¨Outstanding Researcher Klasko, Rulon, Stock & Seltzer, LLP

What are Preference Categories? (cont’d) Order in which visas are made available n 2 nd Preference (Eb-2) ¨Advanced Degree Professionals ¨Bachelors + 5 years Experience ¨National Interest Waivers ¨Aliens of Exceptional Ability Klasko, Rulon, Stock & Seltzer, LLP

What are Preference Categories? (cont’d) Order in which visas are made available n 3 rd Preference (Eb-3) ¨Skilled Workers (requiring 2 yrs + experience) ¨Professionals (bachelor’s degree) ¨“Other” workers (only 5, 000 per year) Klasko, Rulon, Stock & Seltzer, LLP

Why Upgrade? n Quotas ¨ Per Country ¨ Per Preference Category n Issued in Order in which Petition Filed (Priority Date) Klasko, Rulon, Stock & Seltzer, LLP

Where Are We Now April 2008 Visa Bulletin – Empl. Based Worldwide CHINAmainland born INDIA MEXICO PHILIPPINES 1 st C C C 2 nd C 01 DEC 03 C C 3 rd 01 JUL 05 08 FEB 03 01 OCT 01 01 JUL 05 Other Workers 01 MAR 02 01 MAR 02 Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? n Eb-3 to Eb-2 ¨PERM Context n Bachelors + 5 years n Master’s Degree or Higher n Exceptional Ability Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-3 to Eb-2 ¨National Interest Waiver n “Waives” the Requirement of Job Offer n Must Either Have ¨ Advanced Degree ¨ Exceptional Ability Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-3 to Eb-2 ¨National Interest Waiver n NYSDOT Criteria ¨ Substantial Intrinsic Merit ¨ National in Scope ¨ Substantially Better Than Others Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-2 to Eb-1 ¨Extraordinary n Self-Petition n Regulatory Criteria n Support Letters Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-2 to Eb-1 ¨Outstanding Researcher n Employer Sponsored ¨ University/Institution of Higher Ed ¨ Private Employer § At least 3 full time researchers § “Documented Accomplishments” ¨ Tenure Track or “Permanent” Offer Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-2 to Eb-1 ¨Outstanding Researcher n Three years experience n Recognized Internationally n Regulatory Criteria n Support Letters Klasko, Rulon, Stock & Seltzer, LLP

How to Upgrade? (cont’d) n Eb-2 to Eb-1 ¨Multinational Executive/Mgr n Employer Sponsored ¨ Qualifying Rel. between US and foreign entity ¨ At least One Year “Doing Business” n One Year in Last Three Mgr or Exec n One Year Abroad as Mgr or Exec Klasko, Rulon, Stock & Seltzer, LLP

What if I Can’t Upgrade n Valid Non-Immigrant Status ¨ Extending H beyond 6 years Buy back time n Start LPR process one year in advance n ¨ Exploring other NIV n Eternal Adjustment Applicant Klasko, Rulon, Stock & Seltzer, LLP

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Advising the Eternal Adjustment Applicant H. Ronald Klasko, Esq.

Maintenance of Nonimmigrant Status after Filing Adjustment n n n H-1 B, H-4, L-1, L-2 O and E F-1, H-3 and other temporary statuses Klasko, Rulon, Stock & Seltzer, LLP

Travel n n n Travel by nonimmigrant other than H-1 B, H -4, L-1, L-2 Travel by H-1 B, H-4, L-1, L-2 Travel using advance parole Travel after advance parole filed q Travel after advance parole approved q Timing for advance parole extensions q Issues with multiple advance parole documents q Klasko, Rulon, Stock & Seltzer, LLP

Extensions of H-1 B or L-1 Status n n n Advice regarding extension of H or L versus obtaining EAD Length of extension Extension of H or L status by parolee Klasko, Rulon, Stock & Seltzer, LLP

Employment during Adjustment Pendency n n n Travel with parole and work without EAD Impact of working without authorization after filing adjustment Timing of extension of EAD Klasko, Rulon, Stock & Seltzer, LLP

Spouses n n n Issues of H-4 working with EAD Issues of L-2 working with EAD Issues of H-4/L-2 where principal entered on parole Following to join after quota retrogression Status of H-4/L-2 where principal works without authorization Klasko, Rulon, Stock & Seltzer, LLP

Children n Protecting age if child outside the US Child over 21 when adjustment filed for principal Impact of quota retrogression on concurrent adjustment for child Klasko, Rulon, Stock & Seltzer, LLP

Questions ? Klasko, Rulon, Stock & Seltzer, LLP

Immigration Consequences of Criminal Activities Theodore J. Murphy, Esq.

Introduction § When Do We Care About Crimes? § What Crimes Do We Care About? § Arrests, Convictions, Pleas, Diversions § Avoiding Immigration Consequences Klasko, Rulon, Stock & Seltzer, LLP

Immigration Consequences – When Criminal Activity Matters n ADMISSIBILITY: Eligibility to get a visa and enter the United States and Adjustment of status n DEPORTABILITY: Causing loss of status and subjecting one to possible deportation n NATURALIZATION: Certain Crimes prevent a showing of “Good Moral Character” Klasko, Rulon, Stock & Seltzer, LLP

What Criminal Activity has Immigration Consequences? § § Commission of the crime Arrests Diversions Convictions Klasko, Rulon, Stock & Seltzer, LLP

ARRESTS GENERALLY § A mere arrest can have a negative impact § Any arrest must always be admitted in all immigration contexts § Arrests will appear in computerized records if person was fingerprinted § No distinction between misdemeanor or felony Klasko, Rulon, Stock & Seltzer, LLP

What is a “conviction”? § A “conviction” means either: § a judge or jury found the individual guilty; OR § a pre-trial diversion program in which the alien entered a plea of guilty/no contest as part of the diversion program. § Conviction still exists even if just fine or probation, no jail § Misdemeanor or felony distinction is unimportant Klasko, Rulon, Stock & Seltzer, LLP

Severity of Crimes n Less Problematic – traffic citations, minors with alcohol, DUI n More Problematic – minor theft, simple assault, marijuana n Most Problematic - selling drugs, guns, slavery, violent crimes, racketeering, perjury, fraud, tax evasion, theft, alien smuggling, etc. Klasko, Rulon, Stock & Seltzer, LLP

Domestic Offenses n Most domestic offenses, including spousal abuse, child abuse or neglect, stalking, violation of protective orders, can result in deportation n Domestic partners, fiancé/es, former spouses included in spousal abuse n This includes convictions for misdemeanors and violating civil protection orders! Klasko, Rulon, Stock & Seltzer, LLP

Preventing Immigration Consequences n Early Involvement of Immigration Counsel with Criminal Counsel n Formal or Informal Diversion Programs n Plea or Sentencing Agreements to Avoid Immigration Consequences Klasko, Rulon, Stock & Seltzer, LLP

So What Happens After Convictions? § § § Loss of status Ineligibility for future immigration benefits Visa delays because of fingerprint checks Detention Deportation Klasko, Rulon, Stock & Seltzer, LLP

After a Conviction, Can Anything Be Done? § Generally, convictions cannot be “expunged” or erased for immigration purposes § Some waivers are available in limited circumstances § Purpose for post conviction action: deportability vs. mere hassle § Certified copies of court papers Klasko, Rulon, Stock & Seltzer, LLP

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H. Ronald Klasko, Esq. Theodore J. Murphy, Esq. Dealing with Government Adjudication Delays

Options for Dealing with Delayed Cases n n Do Nothing – wait and hope Make inquiries Seek Congressional assistance Litigation Klasko, Rulon, Stock & Seltzer, LLP

Causes of Delay n n n n Processing backlogs RFEs: delay in responding Inadmissibility issues Investigations Motions to Reopen or Reconsider Government errors Priority date retrogression Klasko, Rulon, Stock & Seltzer, LLP

Causes of Delay (cont’d) n Clearances ¨ Technology Alert List ¨ Criminal clearances ¨ Security clearances ¨ Name check clearances Klasko, Rulon, Stock & Seltzer, LLP

Administrative Mechanisms for Addressing Delays n USCIS ¨ Premium Processing ¨ Service Center inquiries ¨ Interim EAD n n DOL inquiries DOS inquiries: ¨ Consulates ¨ Visa Office n AILA inquiry mechanisms Klasko, Rulon, Stock & Seltzer, LLP

Federal Court Litigation: Pre-litigation Issues and Concerns n n n n Expense Time involvement Retaliation? When to file? Actions to take before filing Where to file? How long will it take? What are the chances of success? Klasko, Rulon, Stock & Seltzer, LLP

Federal Court Litigation: Legal Framework n What is the law? ¨ Mandamus ¨ Administrative Procedure Act n Complaint ¨ Who are the parties? ¨ What relief is requested? Klasko, Rulon, Stock & Seltzer, LLP

Types of Applications n I-129/I-140 ¨ Employer as plaintiff n I-485 ¨ Memo re: name check delays (2 -4 -08) 180 days from request to FBI n Adjudicate if approvable and quota current n Klasko, Rulon, Stock & Seltzer, LLP

Types of Applications n N-400 ¨ No 180 -day limit on name check delays n (cont’d) New FBI targeted timeframes ¨ If interviewed n Can choose to have federal court decide 120 days after interview n USCIS policy to withhold interview until name checks clear ¨ If not interviewed n Option to file mandamus in federal court Klasko, Rulon, Stock & Seltzer, LLP

Federal Court Litigation: Responses of the Government n Possibility of “expedite” ¨ Officially ¨ Unofficially n Motion to Dismiss Klasko, Rulon, Stock & Seltzer, LLP

Federal Court Litigation: Role of the Judge No precedent: judge is critical n Active judges/passive judges n Range of orders n Klasko, Rulon, Stock & Seltzer, LLP

Klasko, Rulon, Stock & Seltzer, LLP

Worksite Enforcement discussion leader Elise A. Fialkowski, Esq.

Overview - Brave New World for Employers n n n New government enforcement priorities and techniques; Penalties for non-compliance, including criminal liability; Impact of State and local laws; Social security no-match letters; Choosing whether to participate in voluntary government programs (E-Verify, IMAGE). Klasko, Rulon, Stock & Seltzer, LLP

ICE Enforcement Strategy n n n Recent ICE enforcement initiatives—audit v. raid Increased civil fines coupled with criminal penalties ICE has the authority to use wiretaps ICE has the authority to establish and operate undercover investigations ICE utilizes confidential informants ICE coordinates with IRS, DOL and other agencies Klasko, Rulon, Stock & Seltzer, LLP

Impact of State and Local Laws n As of December 31, 2007, at least 1562 pieces of legislation related to immigrants had been introduced among the 50 state legislatures – of the 240 that became law – 29 effect employment in approximately 20 states. n Companies that knowingly hire illegal workers may face: Possible loss of business licenses – Arizona, Tennessee, West Virginia ¨ Possible loss of government grants and contracts – Arkansas, Colorado, Delaware, Georgia, Idaho, Iowa, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas ¨ n Some states require E-Verify while Illinois prohibits it. Klasko, Rulon, Stock & Seltzer, LLP

“No-Match” Regulations n n DHS/ICE issued regulations on August 15, 2007 to be effective September 14, 2007—constructive knowledge receipt of Social Security no match letter or Written notice from DHS Prior to effective date, the U. S. D. C. for the Northern District of California enjoined the implementation On March 21, 2008 - DHS Supplemental Proposed Rule On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance Klasko, Rulon, Stock & Seltzer, LLP

Social Security “No Match” Regulation n “Reasonable steps” to rebut constructive knowledge presumption (“safe harbor”) q Within 30 days: employer check/correct records and inform SSA/DHS q Within 90 days: if employer records correct, request employee confirmation n n If employee corrects record, employer correct and inform SSA If employee states employer records correct, employee must resolve discrepancy with SSA within 90 days Klasko, Rulon, Stock & Seltzer, LLP

Social Security “No Match” Regulation q If unresolved after 90 days, new I-9 must be completed by the 93 rd day. q Employer cannot accept the following: q Any document referenced in written notice q Any document with disputed social security or alien number q Any receipt for replacement of such document q Employee must present a document with a photograph q If not, terminate Klasko, Rulon, Stock & Seltzer, LLP (cont’d)

Choosing Whether to Participate in Voluntary Government Programs n E-Verify ¨ Checks social security number against national databases-SSA & DHS ¨ New photo screening tool ¨ Voluntary program (at least on federal level at this time) ¨ Requires Employer to agree to MOU with DHS and SSA w/significant obligations Klasko, Rulon, Stock & Seltzer, LLP

E-Verify Memorandum Of Understanding n Main Employer Responsibilities Post notices ¨ Agree to visits by ICE and/or designees ¨ Attach results to Form I-9 and retain for same time as form ¨ Rebuttable presumption of compliance if confirmation is obtained ¨ Notify DHS if continues to employ following non-confirmation (civil penalties $500 -$1, 000 for failure to notify) ¨ If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274 A(a)(1)(A) is created ¨ Klasko, Rulon, Stock & Seltzer, LLP

General Guidelines for E-Verify n n n Not a substitute for I-9 compliance Does not provide protection against worksite enforcement Cannot be used to pre-screen Can only be used to verify eligibility of newly hired employees Queries must be conducted within 3 days after hire You can leave the E-Verify program only after 30 days notice Klasko, Rulon, Stock & Seltzer, LLP

Guidelines for E-Verify n What you need: (cont’d) ¨ Information from Section 1 and 2 from the Form I-9 Employees name n Date of Birth n Social Security Number n Citizenship Status employee attest to n A# or I-94 # if applicable n Expiration dates for identification and eligibility documents ¨ Identification document provided from List “B” must contain a photograph n Klasko, Rulon, Stock & Seltzer, LLP

Results n Confirmation – GREEN LIGHT ¨ Record the case verification number of Form I -9 or attach printout of result screen. ¨ This ends the process - Obligation to re-verify remains for time limited authorizations. n Final Non-Confirmation – RED LIGHT ¨ Record the case verification number of Form I -9 or attach printout of result screen Klasko, Rulon, Stock & Seltzer, LLP

Results (cont’d) n Tentative Non-Confirmation – YELLOW LIGHT ¨ System cannot perform immediate match ¨ NOT grounds for termination ¨ Follow up steps: Double check input date to ensure no errors (if errors are found run SSA query again) 2. Record case verification number 3. Inform employee of tentative non-confirmation 1. Klasko, Rulon, Stock & Seltzer, LLP

Results (cont’d) Inform employee he/she has the right to contest non -confirmation with SSA or DHS 5. If employee does not contest – YOU MUST TERMINATE EMPLOYMENT 6. If employee contests –must provide with a referral letter to SSA or refer to contact DHS. Employee has 8 Federal Working Days to resolve discrepancy with SSA/DHS (unless SSA/DHS extends) 7. On the date that is 10 Federal Working Days after the date of the referral you must query the system again. 4. Klasko, Rulon, Stock & Seltzer, LLP

Advantages of Using E-Verify n n n Rebuttable presumption of compliance if confirmation is obtained—Swift Allows employer to query system re validity of documentation For employers with higher percentage of undocumented workers or greater use of fraudulent documents, saves time/training by identifying unauthorized workers prior to nomatch Klasko, Rulon, Stock & Seltzer, LLP

Disadvantages of Using E-Verify n n n n Significant problems with underlying databases Potential waiver of 4 th Amendment protections Limited to new hires No safe harbor from worksite enforcement SSA may not extend 8 -day resolution period No formal appeals process Continued employment after final non-confirmation results in rebuttable presumption of violation Klasko, Rulon, Stock & Seltzer, LLP

Disadvantages of Using E-Verify (cont’d) n n n Penalty of $500 to $1000 for each failure to notify of continued employment after final non-confirmation Insufficient protection from discrimination claims Value/impact of new photo tool questionable 30 day notification period to withdraw Issue as to whether system can handle increased volume Add’l HR and company time for process in addition to I -9 Klasko, Rulon, Stock & Seltzer, LLP

IMAGE-Choosing Whether to participate in Voluntary Government Program n ICE Mutual Agreement between Government and Employers (“IMAGE”) (www. ice. gov/partner/opaimage) n I-9 audit by ICE n Verify social security numbers of existing workforce n ICE training and education n Commit to ICE “best practices” n Establish “tip line” to ICE n Does not ensure against raid, investigation, fine or criminal action Klasko, Rulon, Stock & Seltzer, LLP

Klasko, Rulon, Stock & Seltzer, LLP

Speaker Contact Information n H. Ronald Klasko, Esq. n William A. Stock, Esq. q q Tele: 215. 825. 8607 q Fax: 215. 825. 8699 q n Tele: 215. 825. 8608 E-mail: rklasko@klaskolaw. com q E-mail: wstock@klaskolaw. com Richard R. Rulon, Esq. n Suzanne B. Seltzer, Esq. q Tele: 215. 825. 8612 q Tele: 212. 796. 8846 q Fax: 215. 825. 8699 q Fax: 212. 297. 1799 q E-mail: rrulon@klaskolaw. com q E-mail: sseltzer@klaskolaw. com cont’d… Klasko, Rulon, Stock & Seltzer, LLP

Speaker Contact Information n Elise A. Fialkowski, Esq. q q Fax: 215. 825. 8699 q n Tele: 215. 825. 8647 E-mail: efialkowski@klaskolaw. com Theodore J. Murphy, Esq. q Tele: 215. 825. 8646 q Fax: 215. 825. 8699 q E-mail: tmurphy@klaskolaw. com Visit us online at www. klaskolaw. com Klasko, Rulon, Stock & Seltzer, LLP