October 2009 Newsletter

OCTOBER 2009
The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our October 2009 newsletter covering immigration topics that are of interest to our clients.

Headlines:

1. KRSS Ranked Among Top Immigration Firms – Klasko, Rulon, Stock & Seltzer, LLP has been selected as one of the top 6 business immigration law firms in the United States.
2. Congress Extends Four Immigration Programs for Three Years – On October 20, 2009, the Senate passed the conference report on the Department of Homeland Security appropriations bill (H.R. 2892), which includes a three-year extension of four key immigration programs.
3. November 2009 Visa Bulletin Reveals Only Slight Movement in EB-3, EB-2 Categories – On October 9, 2009, the Department of State issued its November 2009 visa bulletin revealing little movement across most employment-based immigration categories.
4. DHS Rescinds "No-Match" Rules – Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to "No-Match" letters.
5. U.S. Citizenship and Immigration Services Says Filing Fees May Rise – Alejandro Mayorkas, the new director of U.S. Citizenship and Immigration Services (USCIS), recently stated that USCIS has received a significantly lower number of applications lately and that the resulting decline in revenue could lead to higher application fees.
6. Be Prepared for Surprise Site Visits – As part of the Department of Homeland Security's stepped-up enforcement efforts, which include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services.
7. New DOL iCERT System Causes H-1B Delays – With the announcement of the implementation of a new Labor Condition Application (LCA) online system known as iCERT by the Department of Labor (DOL), there have been numerous delays in obtaining certification of LCAs.
8. Department of Labor Issues FAQ on Labor Condition Applications – The Department of Labor has issued a Frequently Asked Questions document about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E.
9. U.S. Department of State Announces the Opening of the Diversity Visa Lottery for Fiscal Year 2011 – The Department of State (DOS) recently announced that they will be accepting applications for the Diversity Visa Lottery for the Fiscal Year 2011 from October 2 until November 30, 2009.
10. USCIS Announces New Web Site Design – USCIS says its redesigned website, in English and Spanish, is more customer-centric.
11. Global Entry Program Now Available at Detroit Airport – Global Entry allows pre-screened, approved, registered travelers to use automated kiosks to receive expedited processing upon arrival.
12. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers – A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation.
13. Government Agency Links
14. Klasko News – Upcoming and recent speaking engagements, publications, and more.

1.  KRSS Ranked Among Top Immigration Firms

Klasko, Rulon, Stock & Seltzer, LLP has once again been selected as one of the top 6 business immigration law firms in the country by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners). Impressively, the firm has achieved this top ranking in Chambers Global for the past four consecutive years (2006, 2007, 2008, and 2009). Moreover, Chambers Global has again selected Chairman H. Ronald Klasko (Ron) as one of the top 15 immigration attorneys in the country and named William Stock (Bill) among the leading 30 immigration attorneys in the US. KRSS is particularly proud of the top firm and lawyer ratings as Chambers Global bases its rankings solely on reviews and interviews by clients and other attorneys.

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2.  Congress Extends Four Immigration Programs for Three Years

On October 20, 2009, the Senate passed the conference report on the Department of Homeland Security appropriations bill (H.R. 2892). The final conference report includes a three-year extension of four key immigration programs:

• the E-Verify program;
• the EB-5 immigrant investor regional center program;
• the non-minister special immigrant religious worker program; and
• the Conrad State 30 program for certain J-1 foreign doctors.

The final three-year compromise emerged after a very contentious internal debate and a nearly successful effort by some members of Congress to eliminate all immigration "extender" provisions from the bill.

The conference version of the bill will now go to President Obama for signature. The President is expected to sign the bill before October 31, when the four programs are currently scheduled to expire.

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3.  November 2009 Visa Bulletin Reveals Only Slight Movement in EB-3, EB-2 Categories

On October 9, 2009, the Department of State issued its November 2009 visa bulletin. The new visa bulletin reveals little movement across employment-based immigration categories. The cut-off dates in the Professional/Skilled Workers category remain stalled at June 1, 2002 for Worldwide and the Philippines, while there will be slight advances for China (June 1, 2002), India (April 22, 2001) and Mexico (June 1, 2002). In the third preference "Other Workers" subcategory, all chargeability areas except for India remain stalled at June 1, 2001, but the cut-off date for India advances a week to April 22, 2001.

The employment-based first preference (EB-1) category will remain current for all nationalities. Cut-off dates in the EB-2 category will remain stalled at January 22, 2005 for India, while they will advance slightly for China (April 1, 2005). The EB-2 category will remain current for all other countries.

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4.  DHS Rescinds "No-Match" Rules

Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the "No-Match" rules it promulgated in 2007 and 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of "No-Match" letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number provided for a W-2 earnings report does not match SSA records. DHS proposed to rescind the No-Match rules on August 19, 2009, and is issuing a final rule without change.

Implementation of the 2007 final No-Match rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is "designed to help the business community develop and implement hiring and employment verification best practices."

DHS said that "[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter." The agency said that a No-Match letter is "reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA."

DHS also noted that "unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place." The agency said it focuses criminal and civil enforcement efforts against "the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud; and employers in the nation's critical infrastructure sites, including airports, seaports and power plants." You can read more about DHS' about-face on the No-Match rules here.

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5.  U.S. Citizenship and Immigration Services Says Filing Fees May Rise

According to Alejandro Mayorkas, the new director of U.S. Citizenship and Immigration Services (USCIS), USCIS has received a significantly lower number of applications lately, and the resulting decline in revenue could lead to higher application fees. At a press conference in Albuquerque, New Mexico, on September 24, 2009, Mr. Mayorkas announced that the agency is projecting a $118 million budget shortfall and has asked for Congress' help. According to Mr. Mayorkas, "The potential fee increase is not something that is taken lightly. We understand very well its impact upon the community. In my personal view, it would be something of [a] last resort."

Mary Giovagnoli, director of the Immigration Policy Center, pointed out that an increase in fees could result in even fewer applicants for immigration benefits: "Congress has been really reluctant to revisit this whole idea that we shouldn't be trying to finance our immigration system basically solely on the backs of applicants. I think the agency and the applicants are both kind of caught between a rock and [a] hard place."

Although filing fee increases were imposed just two years ago, USCIS collected hundreds of millions of dollars less than expected -- at least in part because the economic downturn has resulted in fewer and fewer employers filing petitions on behalf of foreign national employees.

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6.  Be Prepared for Surprise Site Visits

As part of the Department of Homeland Security's stepped-up enforcement efforts, which include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services. FDNS inspectors often use a script of questions and ask to speak with an employer representative and any foreign workers. Besides assisting in the adjudication of petitions, FDNS is also using what it learns to add fraud indicators to its database so it can better detect potential fraud in future adjudications.

Klasko, Rulon, Stock & Seltzer, LLP has issued a detailed alert on preparing for immigration-related worksite inspections. To be prepared for site visits, we recommend employers develop and implement robust compliance policies, audit I-9s and H-1B public access files, and plan in advance how to respond when immigration agents visit. We also recommend designating an immigration compliance officer who should be trained to take the lead during an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from upper management to receptionists. Contact one of the firm's attorneys for help in preparing your company for potential onsite FDNS inspections.

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7.  New DOL iCERT System Causes H-1B Delays

As we predicted in our blog post announcing the implementation of a new Labor Condition Application (LCA) online system known as iCERT by the Department of Labor (DOL), there have been numerous delays in obtaining certification of LCAs. These delays have had a tremendous impact on employers, as they are required to obtain a certified LCA as a precondition to filing an H-1B nonimmigrant worker petition with USCIS.

The iCERT system became effective on June 30, 2009, replacing the previous web-based system. While it was known that iCERT would eliminate same-day LCA approvals, the DOL originally anticipated that it could take up to seven business days to certify the LCA. However, since its implementation, the iCERT system has experienced a number of technical glitches that have resulted in delays in obtaining certified LCAs beyond the seven day period.

Part of the reason for these glitches is that employer data from the old LCA system did not transfer to the new iCERT system. As a result, the most prevalent problem of the new system is the denial of LCAs when the DOL cannot verify the employer's Federal Employment Identification Number (FEIN). This occurs even on LCAs filed by employers who regularly submitted applications on the old system with no issues. Moreover, these denials occur even when the correct FEIN was entered on the LCA. Because the iCERT database is not integrated with the IRS database or the old LCA system, there is no way for the DOL to certify the FEIN.

Upon the receipt of an LCA denial notification from the DOL, employers are instructed to provide the DOL with proof of the FEIN number through a specified email address. Acceptable proof of the FEIN can include IRS documentation assigning the FEIN, preprinted tax coupons or tax returns with a preprinted label listing the FEIN, bank documents listing the FEIN, and any other government documents indicating the FEIN. Once the employer locates this documentation and sends it to the DOL, it is taking up to ten additional business days to resolve the FEIN problem.

The FEIN resolution does not result in an LCA approval. Once the employer receives confirmation from the DOL that the FEIN issue has been resolved, they can then resubmit the LCA through the iCERT system. This resubmission is, once again, subject to the seven day processing time.

Additionally, DOL recently let users know that the iCert system was storing some FEIN records incorrectly, leading to erroneous LCA denials. Particularly, where a user entered in a FEIN that began with a zero ("0"), the iCERT system would store the FEIN incorrectly by dropping some digits and inserting errant digits. Unless caught, this problem would lead to LCAs being populated with the incorrect FEIN and subsequently being denied. 

The DOL is attempting to resolve these FEIN issues. They have recently issued guidance to employers noting that they are integrating iCERT with the PERM database. It is hoped that the FEINs submitted by employers in connection with PERM applications will be transferred to the iCERT system, thereby reducing the number of FEIN non-confirmations. However, until the issues are fully resolved, these delays can have very serious implications for employers and employees alike. Employers are urged to locate acceptable tax documents that verify their company's FEIN and have them available if and when they are requested by the DOL. Another effective way of avoiding delays is to implement a tickler system to identify expiring H-1Bs within the company's workforce. As H-1B extensions can be filed as much as six months in advance of the requested start date, employers can avoid last minute delays and possible breaks in the employee's work authorized status by identifying the applications that need to be filed in advance.

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8.  Department of Labor Issues FAQ on Labor Condition Applications

The Department of Labor (DOL) recently issued a Frequently Asked Questions (FAQ) document about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E. Topics discussed in the FAQ include how to correct an invalid federal employer identification number after denial of a labor condition application (LCA) on that ground; filing on behalf of a new company created through a merger, acquisition, or sale; what contact information to enter for employer point of contact; how to enter a prevailing wage survey on the new LCA; and how to withdraw an LCA after receiving certification via the iCERT Portal.

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9.  U.S. Department of State Announces the Opening of the Diversity Visa Lottery for Fiscal Year 2011

The Department of State has announced that it will be accepting applications for the Diversity Visa Lottery for the Fiscal Year 2011 from October 2 until November 30, 2009.

The congressionally-mandated Diversity Immigrant Visa Program makes available 50,000 diversity visas annually to persons satisfying the strict eligibility requirements from countries with low rates of immigration to the United States. Foreign nationals must enter the lottery by submitting an electronic application on the State Department's website. Winners are drawn from a random selection of all entries, and those who are selected are notified by mail between May and July of the next year.

Immigration regulations require that every diversity visa entrant must have at least a high school education or its equivalent or have, within the past five years, two years of work experience in an occupation requiring at least two years' training or experience.

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10.  USCIS Announces New Web Site Design

On September 22, 2009, USCIS unveiled its new, more customer-centric web site design, which is available in Spanish and English. According to USCIS, the revamped site will provide users with a "one-stop shop for immigration services and information."

The new "Where to Start" tool, located on the top left of the homepage, allows for direct navigation to information. By clicking on the first drop-down menu, users have the opportunity to choose who they are from a number of options. After selecting who they are, clicking on the second drop-down menu allows them to select what they want to do. According to USCIS, the "Where to Start" tool will take users to the information they want without having to search the entire site. Applicants for citizenship may also follow the progress of their cases online, and receive notifications via e-mail or text messages when their application status changes.

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11.  Global Entry Program Now Available at Detroit Airport

Global Entry, U.S. Customs and Border Protection's (CBP) new clearance system for international air passengers, is now open at Detroit Metropolitan International Airport.

The Global Entry program allows pre-screened, approved, registered travelers (including U.S. citizens, lawful permanent residents of the U.S., and citizens of certain other countries) to use automated kiosks to receive expedited CBP processing upon arrival from international travel.

Global Entry participation is voluntary. Participants must possess a machine-readable U.S. passport or permanent resident card, pay a non-refundable $100 application fee, submit an online application, and complete an interview at a CBP enrollment center.

"Detroit is a major international gateway, especially for flights from Asia and Europe, as well as a hub airport for Delta, the world's largest airline," said airport authority CEO Lester Robinson. "We treasure our international passengers and this added convenience provided by [CBP] is one more customer service we can highlight when marketing our airport and our region."

Global Entry is now available at Miami, Atlanta, Los Angeles, Chicago, Sea-Tac, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan and Fort Lauderdale, as well as Detroit.

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12.  Missouri Plant Pays $450K Fine for Hiring Undocumented Workers

A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by U.S. immigration and Customs Enforcement (ICE). George's Processing, Inc. paid the fine on September 11, 2009, as part of a settlement agreement.

ICE said it will use the funds to promote future law enforcement programs and activities in worksite enforcement. During a May 2007 enforcement action at the George's plant in Cassville, Missouri, ICE agents administratively arrested 136 undocumented workers from Mexico and Guatemala. Twenty-eight of those workers were criminally prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company's hiring personnel subsequently were convicted of harboring undocumented workers and inducing them to remain in the United States.

George's Processing, Inc., headquartered in Springdale, Arkansas, employs 4,000 workers at its three poultry processing facilities in Arkansas, Missouri, and Virginia.

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13.  Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

• USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp
• Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
• Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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14.  Klasko News

Webinar: H-1B Site Visits

KRSS hosted a free webinar entitled "Responding to Post-Filing Visits: Handling Follow-Up Interviews on H-1B Petitions" on Wednesday, October 28, 2009. Panelists Bill Stock and Kate Kalmykov discussed what to expect when "Immigration" comes knocking at your door. Topics covered included:

• USCIS's authority to conduct site visits;
• Diagnosing who is visiting: private investigators, USCIS FDNS officers, or ICE agents;
• Information on what employers can expect to be asked during these site visits;
• Best practices for H-1B compliance and successful site visits;
• Practical strategies for training personnel on how to best respond to a site visit;
• The right to counsel; and
• Benefits of being proactive: Internal H-1B audits.

In Academia

This fall semester, Bill is leading a course on immigration law for upper-year law students at Villanova University School of Law. Bill's course provides students with an overview of immigration law, from temporary and permanent visas to exclusion and deportation procedures, in addition to exploring the interaction of immigration law with the federal courts and the U.S. Constitution. Bill has served as a Lecturer in Law at Villanova since 1999.

Upcoming Speaking Engagements

Ron has been invited to speak at the NAFSA Region III Annual Conference in Addison, Texas later this month (10/26-29). NAFSA is the professional association of international educators. If you would like to see Ron speak at the NAFSA conference, don't miss these presentations at the Region III conference:

• "Tough Economic Times: Impact on Foreign Students, Employees and Universities"
• "Myths of Extraordinary, Outstanding and Merely Exceptional," and
• "Advising Issues for Healthcare Institutions."

While in the Lone Star State, Ron will also be speaking on immigration-related topics at the University of Texas Southwestern Medical Center, Health Science Center in Dallas, and the M.D. Anderson Cancer Center in Houston.

Bill and Elise will join forces for a presentation on business immigration at the Business Lawyers Institute, a CLE program held by the Pennsylvania Bar Institute (PBI) in Philadelphia on November 5. If you would like to read the article prepared in connection with their presentation, "The New Age of Worksite Enforcement," contact Elise at efialkowski@klaskolaw.com.

On November 7, Ron will attend the AILA Texas Chapter's Fall Conference in Puerto Vallarta, Mexico, where he will serve as one of two panelists for a presentation entitled, "EB-5 Investments: A Win for the U.S. Economy, U.S. Workers and Investors. So, What's the Problem?"

Recent Speaking Engagements

On October 22, Suzanne Seltzer (Suzanne) headed to the campus of Dartmouth University in Hanover, New Hampshire to address students and scholars there on the visa options available to them in the post-Dartmouth world. Suzanne provided information on H-1Bs and other nonimmigrant visas available for research, clinical and corporate work; pathways to permanent residency; and J-1 waivers. To view the PowerPoint used for this presentation, click here.

This month, Ron and Bill both spoke at local universities discussing different visa options and possible routes to permanent residency available to university students, scholars, and researchers. Bill was at Temple University on October 21, while Ron addressed foreign students, scholars, and researchers at the University of Pennsylvania on October 22.

On October 19, Ron traveled to San Francisco to speak at two different conferences of the American Immigration Lawyers Association (AILA). First, Ron attended the AILA EB-5 Investors Conference, where he was invited to share his expertise on the EB-5 program by delivering a presentation entitled "Advanced Issues in Representing Individual Investors." Afterwards, Ron discussed "Options for the Wealthy Client" at the AILA Northern California Chapter's fall CLE conference. For information on either of these presentations, contact Ron at rklasko@klaskolaw.com.

Ron recently traveled to Clearwater, Florida to serve as a panelist at the AILA Central Florida Chapter's Annual Conference on October 16. He and his co-panelists addressed fellow immigration lawyers on how to advise clients in light of the challenges posed by the current economic climate.

On October 7, Suzanne participated in a training for volunteers with the New York City Immigrant Advocacy Initiative (NYCIAI). The New York City Immigrant Advocacy Initiative is a collaborative effort between the City Bar Justice Center and the New York Chapter of the American Immigration Lawyers Association. Its aim is to address the many legal, educational, and services issues faced by New York City's immigrant population through regular immigration clinics. During the training, Suzanne provided tips on screening for potential survivors of trafficking, domestic violence and other crimes in order to determine eligibility for immigration relief through T and U visas and the Violence Against Women Act. Suzanne provided an overview of these visas, and touched on the ethical issues that could arise in the representation of a client in this area and how to identify and resolve those issues.

On October 5, Ron met with MBA students at the University of Pennsylvania's prestigious Wharton School to discuss their visa and permanent residence options. Ron spoke on employment options for F-1 students; the H-1B quota and other hurdles associated with this visa status; treaty (E) visas; extraordinary ability visas; trainee (H-3) visas; and other topics. The PowerPoint from this presentation and relevant articles are available here for your viewing.

On October 2, Bill served on the faculty of AILA's first Advanced Business Immigration Workshop program at the AILA Fall CLE Conference in Pittsburgh, Pennsylvania. As part of this event, Bill educated experienced business immigration lawyers about cutting-edge practice issues involving the labor certification process.

On September 14, Ron took part in the EB-5 Stakeholders Conference in Washington, DC. Ron served as co-chair of this meeting, where USCIS answered important questions about the EB-5 program provided by Ron in his capacity as chair of the AILA EB-5 Committee.

Recent Publications

Kate Kalmykov (Kate) penned an article for the Legal Intelligencer slated for publication later this month entitled, "Internal Immigration Agency Memorandum Made Public: Employers Prepare for Government Investigations." In this article, Kate discusses an internal Immigration and Customs Enforcement (ICE) memo that was released to the public following a Freedom of Information Act request filed by the American Immigration Lawyers Association. The memo outlines ICE's new worksite enforcement strategy and methodology. The document encourages the investigation of employers as the primary means of combating illegal immigration to the U.S. The memo encourages agents to pursue the criminal prosecution of employers who are found to employ unauthorized aliens. It also stresses that agents should actively conduct I-9 audits and impose civil fines where violations are discovered. To read Kate's article in its entirety, contact Kate at kkalmykov@klaskolaw.com for a copy.

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Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2009 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.

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Related Information:

• October 2009 Newsletter (PDF)