Immigration 2009: Navigating Stormy Seas

1. Immigration 2009:Navigating Stormy Seas w w w . k l a s k o l a w . c o m

2. H. Ronald Klasko, Esq. • 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. • 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. • 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 and 2008 editions 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. Ron is a graduate of the University of Pennsylvania School of Law.

3. William A. Stock, Esq. • Bill 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 over 15 years. • Bill is featured inThe 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. • 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.

4. Suzanne B. Seltzer, Esq. • Suzanne 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.  • Suzanne holds several leadership positions within the immigration bar. She is the Chair, Vermont Service Center Liaison Committee; Member, U.S. Service Center Operations Committee; NAFSA Regulatory Ombudsman; co-Chair, National Coalition for Access to Healthcare, and is the past Co-Chair of AILA’s NY District Director Liaison Committee. • 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. • Suzanne is named in The Best Lawyers in America, Best Lawyers in New York, SuperLawyers, and holds the highest rating of “AV” (LexisNexis Martindale-Hubbell). • Suzanne obtained her JD from Georgetown University Law Center.

5. Elise A. Fialkowski, Esq. • Elise Fialkowski has practiced immigration law for more than 14 years and is a Partner at Klasko, Rulon, Stock & Seltzer, LLP. 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 including, for example, health care professionals, executives, managers, and scientists. • 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 (AILA), Elise serves on the Executive Committee of its Philadelphia Chapter, the AILA E-Verify Liaison Committee and the Philadelphia USCIS Liaison Committee. • Elise also has particular expertise in the university setting.  She represents a number of universities in connection with their student and intern programs and obtains work authorization and permanent residence for university employees. She also advises international students with regard to immigration options and employment following graduation as well as issues that may arise during their course of study and training. • 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).

6. Richard R. Rulon, Esq. • 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. • 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. • Rich was selected for inclusion in The Best Lawyers in Americaand also as a “Pennsylvania Super Lawyer.” • Rich is a graduate of the University of Pennsylvania Law School.

7. Immigration 2009:Navigating Stormy SeasAgenda • Introduction • Service Center Report: Traversing Inland Waters • Department of Labor Update: Temporary Programs • Department of Labor Update: Permanent Programs • Impact of Employer Cutbacks on Employers and Employees

8. Immigration 2009:Navigating Stormy SeasAgenda • Worksite Enforcement • Legislative Update: New Players, Same Game • Questions & Answers • Lunch Buffet (cont’d)

9. Service Center ReportTraversing Inland Waters Suzanne B. Seltzer, Esq. Chair, AILA's Vermont Service Center Liaison Committee Member, AILA's Service Center Operations Committee NAFAS's Region X Regulatory Ombudsman

10. Charting a New Course • Transformation • Online account based system • IIN – “Immigration Identification Number” • Move towards paperless system • Move towards consolidated information • Knowledge management

11. Charting a New Course (cont’d) • Bispecialization • 5 regional service centers • VSC/CSC – non immigrant petitions • TSC/NSC – immigrant petitions • NBC – family based petitions • Flexibility to transfer cases to center with most resources

12. Service Centers Adrift • “Pilots” following their own course • “The Plus” at TSC • 90 day AOS at NBC (so no EAD/AP) • Reliance on contractors

13. No Captain at the Helm • Transfer petitions between Service Centers – used to one standard, get another • New officers • Training issues • Increase discretion; decrease supervision • Decrease in access – NCSC • FY 2010 H-1B Cap Issues

14. Heading into the Rocks • H-1B cap exemption • “Affiliated” with • Employed “at” • L-1B • Functional manager • Specialized knowledge

15. Heading into the Rocks • Re-adjudication of established facts • Less time to respond to Requests for Evidence (RFE) • Denials without RFEs (cont’d)

16. TIDE Is Out • EDGE-AACRO database for degree equivalency • Processing time reports • Online Status

17. On the Horizon Related Issues at Department of State • Security Advisory Opinions (SAO) • Visa Mantis – Technology Alert • 4-6 weeks • No inquiry before 90 days • PRC/Indian nationals • Revised exchange visitor skills list

19. Department of Labor Update:Temporary Programs William A. Stock, Esq. AILA DOL Liaison Committee

20. Introduction • New iCERT Portal – Mandatory for LCA filing • H-1B “Dependence” • Prevailing Wage Issues • DOL Enforcement Procedures

21. The New DOL iCERT Portal for LCAs • Available April 15 for registration/filing • Mandatory for LCA Filing after 5/15 • Account-based system (like PERM) • DOL Anticipates “Analyst Review” may take up to 7 days provided in the statute

22. H-1B “Dependents Employers” Attestations • Also applies to TARP Funding Recipients and “Willful Violators;” may be expanded • Attestation 1: Recruitment of US workers and hire of any equally or better qualified US workers • Attestation 2: No layoff of US workers in the job within 90 days prior or 90 days after H-1B’s hire

23. H-1B “Dependents Employers” Attestations • Attestation 3: No placement of H-1B workers at another employer with a layoff of US workers in the job within 90 days prior or 90 days after the placement • Exempt H-1Bs: Extra attestations do not apply (except for TARP recipients) if the H-1B is paid over $60,000 or has a Master’s or higher degree (cont’d)

24. H-1B “Dependents Employers” Attestations • TARP Recipients Covered: Any receipt of government financing aid for banks under authority of the Treasury or Federal Reserve • Recipients covered until they pay money back (according to the Fed) or until Feb. 2011 • Includes many programs other than direct aid, including voluntary participation helping government purchase “toxic assets” (cont’d)

25. Prevailing Wage Issues • SWA Wage Determinations • Advantage: “Safe Harbor” • Disadvantage: Binding on employer (no alternative) • Understanding the OES and Wage Leveling • The Problem of Extensions and “Level I” Wages • Understanding Geographic Coverage • DOL Mandated survey methodology

26. DOL Enforcement Procedures • Who Enforces: Wage and Hour Division • What is Enforced: H-1B program, can also involve overtime • How Initiated: Employee Complaint, or USCIS Referral • Common Violations • “Initial Benching” after arrival • “Benching” during employment • Unauthorized Deductions • Incorrect Terminations

28. Department of Labor Update:Permanent Programs William A. Stock, Esq. AILA DOL Liaison Committee

29. Introduction • What’s New In Processing Time • Audits and Their Results • New iCERT Portal for PERM • News from BALCA

30. What’s New In Processing Times • “No Audit” Cases from August 2008 • Audited Cases from Summer 2007 • Appeals from June 2007 • BALCA Appeals: 6-12 months from time they are received by BALCA (6-12 months for DOL to forward)

31. Audits and Their Results • The Nitpicking Continues – Technical Denials Abound • Industry Focused Audits • Generic and Targeted Issues Audits • Layoffs • Requirements Related • Good Faith Recruitment Tests

32. New iCERT Portal for PERM • System Registration for LCA and PERM • More Detailed Questions on New ETA-9089 • Multiple Locations • Multiple Alternative Requirements • “Magic Language” check box • Number of employees in area for employment

33. News from BALCA • Offering Substantive Review of “Gotcha” Denials • Lack of “Magic Language” • Undated Signature • Generally Upholding Deadlines and Filing Procedures • Open to Reviewing Documentation Beyond the Audit File • Concerned with Due Process over “Efficiency”

34. Questions?

35. ImpactofEmployer Cutbackson Employers and Employees H. Ronald Klasko, Esq.

36. Termination or LayoffH-1B Employees • Employer actions • Withdraw LCA • Notify CIS • Offer return costs of transportation • Employee airfare only • Only if leaves U.S.? • Employer options and strategies

37. Termination or LayoffH-1B Employees • Consequences to Employer of Failure to Take These Actions • No “bona-fide termination” • “Benching” – continuing wage obligation (cont’d)

38. Termination or LayoffH-1B Employees • Consequences to Employee • Out of status immediately • Revocation of H-1B • Loss of portability? • Impact of severance pay • Eligibility to extend status? (cont’d)

39. Termination or LayoffH-1B Employees • TARP Recipient Employers • Must be no U.S. workers “displaced” • No layoff in “essentially equivalent job” • 90 days before or after filing H-1B petition • Same “area of employment” (cont’d)

40. Termination or LayoffOther Nonimmigrant Employees • No penalty for failure to notify CIS • No back pay issues • Employee out of status • OPT limited to 120 days of unemployment

41. Termination or LayoffLabor Certification Applications • Layoff of labor certification beneficiary • Process terminates unless possible future employment

42. Termination or LayoffLabor Certification Applications • Layoff of U.S. Workers • No impact unless termination other than for cause • Layoff of “potentially qualified” U.S. workers • Layoff in related occupation • Majority of “essential duties” • Layoff in “area of intended employment” • Layoff “within 6 months of filing” • Within 6 months before filing? • Within 6 months after filing? (cont’d)

43. Termination or LayoffLabor Certification Applications • Layoff of U.S. Workers • Employer can still proceed with labor certification, but must • Notify laid off employees of job opening • Consider their qualifications • Document notification and consideration • Notify all and consider only those interested? • Consider all and notify only potentially qualified? (cont’d)

44. Leave of AbsenceH-1B Employees • Requested by employee • No DOL/wage issues • Employee status depends on “expectation of continuing employment” • Requested by employer • Continuing wage obligation – “benching”

45. Leave of AbsenceH-1B Employees • Consequences to Employee • No regulation • Does employer/employee relationship continue to exist? • Is there an expectation of continuing employment? (cont’d)

46. Leave of AbsenceOther Nonimmigrant Employees • Notify CIS? • “Material change”? • No penalty for failure to notify • Consequences to employee same as H-1B

47. Freeze • Impact on labor certification application? • No specific rules • “Good faith recruitment” • Exceptions to hiring freeze

48. Reduction in Salary • H-1B employees • Violation if below prevailing wage • Violation if U.S. workers not reduced • No violation if above prevailing wage and U.S. workers reduced • No new LCA required • Other nonimmigrant employees • Issue of “material change”

49. Reduction in SalaryLabor Certification Applications • Can proceed if still offer prevailing wage when employee gets LPR • What if employer offers lower wage on I-140?

50. Reduction in Hours Labor Certification Applications • Can proceed if still offer full time when employee gets LPR • Issue of “good faith recruitment” for full-time position