Changes to Immigration Laws for Universities, Hospitals, and Research Institutes

1. Get Ready For Changes To Immigration LawsWhat Universities, Hospitals and Research Institutes Have To Know Klasko, Rulon, Stock and Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 www.klaskolaw.com

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 universities, hospitals, and research institutions for over 25 years. • Ron is a past 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 the recipient of the 1999 American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law. • Ron has been selected as one of the top immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Whoof Business Lawyers selected Mr. Klasko as one of the 5 most highly-regarded immigration lawyers in the world. He is a frequent author and lecturer on hospital and university-related immigration law 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. 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.

4. William A. Stock, Esq. • William A. Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP. He handles all aspects of immigration law, including assisting companies and individuals in obtaining employment- and family-based visas; resolving citizenship issues and obtaining naturalization; and defending clients in DHS and Department of Labor enforcement proceedings. • Bill is featured inThe Chambers Global Guide, The Best Lawyers in America, Pennsylvania Super Lawyers, and Who’s Who of Business Lawyers. He currently serves as Chair of the Philadelphia Chapter of AILA, is member of AILA’s National Board of Governors. He received AILA’s Joseph Minsky Award, given to a lawyer under age 35 who has made the most outstanding contributions to the field of immigration law, in 2000. • Bill is a graduate of the University of Minnesota Law School and currently is an Adjunct Faculty Member at Villanova University School of Law.

5. Suzanne B. Seltzer, Esq. • Suzanne B. Seltzer is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, and manages the New York office. She handles a wide range of business immigration matters, with an emphasis on universities, pharmaceutical companies, clinical physicians, and research scientists. • 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. • 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 obtained her JD from Georgetown University Law Center.

6. The Chambers Global: The World’s Leading Lawyers for Businessselects Klasko, Rulon, Stock and Seltzer, LLP asOne of the Six Top Immigration Firms in the US • “For many sources, the firm is the strongest in the countrywhen it comes to representing clients in the university research and medical sectors. It is also respected for its efficient handling of referrals from institutions seeking complex visa applications particularly those relating to people of extraordinary ability and national interest.” • The Lawyers: Ron Klasko is regarded as “a leading national practitioner who really does it all.” “Literally on the cutting edge” when it comes to immigration policy and legislative issues, peers find it “fascinating to see how creative he is” in this arena. The “young and brilliant” partner Bill Stock also received strong recommendation from interviewees for the quality of his practice and his expertise in J-1 visas.

7. Agenda • Legislative / Regulatory Update • PERM / Backlog Elimination Center Workshop • Options for the Best and Brightest • Travel / Security Clearance Workshop • Q & A

8. Legislative and Regulatory Update Richard R. Rulon, Esq.

9. House Legislation HR 4437, The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 Senate Legislation S. 2611, The Comprehensive Immigration Reform Act of 2006 Two Major Bills Passed

10. HR 4437: Border Protection, Antiterrorism, and Illegal Immigration Control Act(Sensenbrenner) PASSED the House December 16, 2005 • Enforcement-only legislation, does not deal with H-1B blackout, family-based/employment-based backlog or other non-immigrant reform measures. • Seeks to more stringently enforce our present immigration system. • Creates new federal felony of “unlawful presence and defines the term broadly and introduces penalties on those who support or shield illegal migrants, which could mean that employees of social service agencies and churches could face up to five years in prison for helping unauthorized foreigners.

11. HR 4437 (Continued) • Requires the creation of a new system for telephonic or electronic verification of an individual’s employment authorization and makes participation in the new program mandatory for all employers within two years of the bill’s enactment. • Verification would be required for both new employees and previously hired employees. • Revises the date upon which the basic pilot program for employment verification systems becomes mandatory to two years after the enactment of this legislation. • Significantly increases the civil penalties for hiring, recruiting, and referral violations, and would extend the definition of “recruit or refer” for purposes of triggering obligations under this title to hiring hall-type situations.

12. Title I – Border Enforcement S. 2611 Passed by Senate on May 25th 2006 • Requires DHS to submit plan within 6 months of enactment for installing US-VISIT system at every U.S. port of entry. • Requires all DHS documents giving evidence of immigration status to be machine-readable, tamper resistant, and contain biometric identification data allowing DHS to electronically verify such status.

13. S. 2611 Title I – Border Enforcement(continued) • Extends deadline (until June 1, 2009) for implementation of Western Hemisphere Travel Initiative. Authorizes Secretaries of State and Homeland Security to develop secure travel documents called “Passport Cards” for international travel across the U.S.-Mexican border, U.S.-Canada border, and travel between U.S. and a country located in the Caribbean or Bermuda. Recommends other modifications to improve cross-border travel initiatives.

14. Title II – Interior Enforcement S. 2611 • Expands the definition of “Criminal alien smuggling” to include those who “facilitate or encourage” this act. New definition also encompasses those who shield undocumented immigrants from prosecution or encourage such immigrants to stay in the U.S. Immunity from prosecution is granted to religious entities and humanitarian organizations that provide assistance to undocumented immigrants.

15. Title II – Interior Enforcement(continued) S. 2611 • Creates a new Electronic Employment Verification System (EEVS) for employers to use to evaluate the work authorization of individual employees, requiring all employers to participate, and making it illegal to hire or continue to employ an undocumented alien; EEVS replaces old I-9 system. • Imposes civil/financial penalties on employers who hire undocumented workers and/or fail to keep proper records; imposes criminal penalties for repeat violations and bars federal contracts with employer for 5 years.

16. Title II – Interior Enforcement (continued) S. 2611 • Timetable for implementation: • For new hires, all employers must participate 18 months after date that $400 million has been made available to implement EEVS. • Employers may volunteer to participate before the 18-month period. • Attestation for employers: • Employer must attest that it has verified the identity and eligibility to work by taking specific steps including examining the following: • For U.S. Citizens: U.S. passport or state-issues driver’s license. • For Aliens: LPR card or employment authorization card. • When above unavailable, DHS can authorize use of other documents. Alternative document must have photograph and tamper-resistant security feature. • Attestation for employees: • Employees must attest that they are eligible to work in the U.S. • Individuals subject to $5000 fine and/or imprisonment for 3 years for false attestation.

17. Verification Process S. 2611 • Employer must use EEVS to confirm individual’s employment eligibility no later than 3 days after date of hire. • DHS must provide (via EEVS) response to employer within 10 days. • When worker found ineligible, he/she is given notice of this and has 10 days to submit the evidence contesting ineligibility. • DHS must provide final confirmation or non-confirmation within 30 days after worker contests non-confirmation notice. If DHS fails to respond within 30 days, the worker is granted default confirmation. • Employer must terminate worker upon final non-confirmation notice, and provide to DHS any information DHS feels will assist in enforcing immigration laws.

18. Title IV – Temporary Worker Program with Labor Protections & Path to Permanent Status S. 2611 • Creates a temporary worker program (H-2C), with a potential path to legal permanent residence for 200,000 low-skilled workers per year currently outside the US. • Visa category becomes available 18 months after date that $400 million has been made available to implement EEVS (Title III).

19. Title V – Backlog Reduction S. 2611 • Immediate relatives no longer count against the family based cap of 480,000 per fiscal year, thereby adding 254,000 new visas per year to eliminate backlogs. • Recaptures unused visas from FY 2001-2005. • Creates recapture mechanism for unused visas for all years going forward. • Raises employment based cap to 450,000 for fiscal years 2007 through 2016; cap drops to 290,000 in 2017 and each fiscal year thereafter. • Creates an overall cap of 650,000 that includes spouses and children of employment –based principals thus, once the 650,000 numbers have been used by principals, spouses and children, no more visas may be issued to principals.

20. Title V – Backlog Reduction (continued) S. 2611 • Increases per country ceilings for both employment-based and family-based immigrant visas. • The new allocation of 450,000 employment-based visas is: • EB-1:15% • EB-2:15% • EB-3: 35% • EB-4 (investors): 5% • EB-5: 30% (“other workers”) • Shortage occupations, including nurses and physical therapists, exempt from worldwide and per-country numerical caps. • Creates J-Stem visa; mirrors the new F-4 visa. F-4 and J-Stem are for students pursuing advanced degrees in a STEM field. F-4 and J-Stem visa holders can adjust status and both can secure three year employment authorization documents and advance parole documents without having to renew annually.

21. H-1B Visa Provisions S. 2611 • Increases the H-1B cap from 65,000 to a more realistic 115,000 per fiscal year. • Provides for a market-based cap escalator that takes effect in fiscal year after years in which U.S. employers have an increased need for more H-1B professionals. • Creates an exemption from the overall H-1B cap for those foreign professionals who have earned a medical specialty certification through post-doctoral U.S. training and experience. • Creates an exemption from the overall H-1B cap for those foreign professionals who have earned a U.S. master’s or higher degree. • Extends current 20,000 cap exemption for those with U.S. advanced degrees to include those with advanced degrees (Master’s or higher) earned in foreign countries.

22. Employment Based (EB) Immigrant Visa Provisions S. 2611 • Streamlines the adjudication process and provides for premium processing of EB visa petitions. • Creates exemption from EB cap for foreign professionals who: • Have earned a medical specialty certification through post-doctoral U.S. training and experience and those who have earned a U.S. master’s degree or higher • Have earned a STEM master’s degree and have worked for 3 years in the U.S. • Are outstanding researchers, professors, or professionals of extraordinary ability, or who hold a national interest waiver • Will work in occupations designated by DOL as lacking sufficient U.S. worker that are able, willing and qualified to fill those positions. • Authorizes extensions of stay for L-1 visa holders if a labor certification application or immigrant visa petition have been filed and pending for more than 365 days.

23. Title VI – Work Authorization & Legalization of Undocumented Individuals S. 2611 • Provides three tier system for undocumented workers to earn a path towards citizenship.

24. Other House Passed Immigration Measures • HR 6094, the Community Protection Act of 2006, passed in House on Sept. 21-allows for indefinite detention, expands expedited removal allows for AG to designate a group as a “gang” and making association with it cause for removal. • HR 6095, Immigration Law Enforcement Act of 2006, passed in House on Sept. 21-giving state and local law enforcement option to enforce civil immigration law violations. • Neither stand alone enforcement measure has been taken up by the Senate.

25. Bills Passed Containing Immigration Related Provisions • DHS appropriations signed into law by the President on October 4, 2006 • Funding for some border fence, real and virtual • Delay of WHTI Pass card requirement June 1, 2009 • Criminalization of Border Tunneling • HR 6061 the Secure Fence Act (Senate passed this measure however President has not yet signed into law).

26. DHS Proposed Amendment to Employment Eligibility Verification (EEV) Regulation • Lowers threshold of “constructive knowledge” by adding two more examples of information available to employer indicating employee not authorized to work in U.S. • Receipt of SSA “no match” letter • Receipt of “no match” notice from DHS Employer advising that immigrant status and employment authorization documentation presented by alien in completing Form I-9 was assigned to another person or not assigned to anyone.

27. DHS Proposed Amendment to Employment Eligibility Verification (EEV) Regulation (continued) • Provides a “Safe Harbor” from DHS finding of “constructive knowledge” that employee is not authorized to work in the U.S. • The 14-Day Safe Harbor • Check records and take other action to obtain SSA verification within 14 days of receipt of “no match” letter or notice. • The 60-Day Safe Harbor • Reverify alien’s work authorization and identity in a limited I-9-like procedure completed in 3 days if discrepancy is unresolved within 60 days of receipt of “no match” letter or notice.

28. Amendment to (EEV) Regulation(cont.) • Where discrepancy referred to in “no match” letter unresolved and employee’s identity and work authorization cannot be verified employer must choose between. • Terminating employee • Continuing to employ alien and face finding of violation of 8 USC§274A-unlawful employment of aliens.

29. Gazing into the Crystal Ball – IMPACT of 2006 Elections on Immigration Legislation • Republicans Retain Control of Both Houses • Lame Duck Session: CIR legislation will not pass, but there may be efforts to attach immigration-related riders onto unrelated bills including some good (H and EB Relief) and some bad (enforcement only). • 110th Congress: future of CIR legislation will depend on which Republicans win (restrictionists or moderates) and by what overall margin. Likely result is renewed pursuit of enforcement only and unyeilding opposition to CIR, particularly as it relates to undocumented aliens.

30. Gazing into the Crystal Ball (cont.) • Republicans retain Senate and Lose House • Lame Duck Session: CIR legislation not likely to pass but there is a reasonable chance H and EB relief could pass. Republican leadership may try to pursue immigration – related enforcement only riders, but unlikely to gain passage in Senate. • 110th Congress: Pro-immigration Democrats will move into leadership positions in House so there may be sufficient support in both Houses to pass CIR along the lines of S-2611. H and EB relief should pass either as part of S-2611 or in stand alone legislation.

31. Gazing into the Crystal Ball (cont.) • Democrats Win both Houses • Lame Duck Session: Scenario similar to Split of Houses above. • 110th Congress: Immigration-related legislation including CIR will likely be more warmly received in both Houses, but because of complexity and passion it evokes, Democratic leadership in both Houses will be reluctant early on to push this issue. H and EB relief, however, should pass

32. Labor Certification UpdateFor Hospitals, Universities and Research Organizations William A. Stock, Esq.

33. Introduction • Backlog Center Cases and “Conversion” • PERM Processing Update

34. Backlog Center Processing • Pulled all “Special Handling” Cases – but delays if they requested more documents • Deadline for Completion: September 30, 2007 • Progress So Far: • Of about 360,000 pending, about 179,000 completed • Of 179,000 completions, about 80,000 withdrawals • Processing Dates • RIR: Mostly 2003 • TR: Mostly 2001

35. Backlog Center Processing(continued) • Making Sure Your Case Is At the Backlog Center • Erroneous case closures - no “45 day letter” response • “No Contact” cases - nobeccontact@phi.dflc.us • Case Disclosure system - www.pbls.doleta.gov/pbls_pds.cfm • New “Conversion” Regulation • File RIR Documentation with request to treat case as RIR • Documentation must be filed before recruitment instructions for TR are issued • “Conversion” is not a PERM filing

36. PERM Filing Where there is a Backlogged Case • “Refiling” with an “Identical” Case • Keeps priority date of backlogged case • Automatically withdraws backlogged case • Only one chance • New filing, whether identical or not • Allows changes from prior case • Does not affect backlogged case • Case receives new priority date

37. Processing Time Improvement for “Clean” Cases • 60 - 90 days for most cases • Some in 30 days or less • “Clean” Cases?

38. Relatively Few Audits • At least of cases we file • Many audits approved shortly after audit response • “Audit Triggers” do not always trigger audits

39. PERM Current Issues • The Health America Decision and What It Means • The Problem: Typos or Errors on the Form • The DOL Solution: Just Refile • The BALCA Solution: Consider the Audit File on a Motion to Reconsider

40. PERM Current Issues (continued) • Continuing PERM Bugaboos • Prevailing Wage Delays and Timing • Internal Electronic Posting Requirement • Specificity of the Advertising • “Employer Contact” Emails • Closing SWA Job Orders • Counting Days

41. PERM Policy Issues for Universities and Hospitals • Which employees will be sponsored? • Who will select the institution’s counsel? • What quality control will be in place to ensure proper filing? • How often will preemptive audits be conducted?

42. Questions ?

43. Options for the Best and Brightest Suzanne B. Seltzer, Esq.

44. How does PERM compare with petitions that don’t require a labor certification?

45. What petitions do not require a labor certification? • Aliens of Extraordinary Ability (EB-1) • Outstanding Researchers (EB-1) • Multinational Executive/Mangers (EB-1) • National Interest Waivers (EB-2) • Schedule A labor certifications (EB-2)

46. What’s the advantage of these non-labor cert petitions? • Higher preference categories • EB-1 • EB-2 • One less step in the LPR process • Concurrent filing of adjustment • Employment Authorization Document • Advance Parole

47. What’s the advantage of these non-labor cert petitions?(continued) • No advertising, no expense of advertising • More flexibility in changing positions, possible that no job offer is required • No prevailing wage requirement, except Schedule A • Self sponsored or employer sponsored • Easier to pursue more than one strategy

48. What’s the disadvantages to non-labor cert? • Not everyone is extraordinary, exceptional, or in the national interest • Subjective adjudication • How are you going to get earliest priority date

49. In these situations, is PERM ever better? • Special Handling labor cert • Occupation in high demand • i.e. - physician in shortage area • Recruitment previously done

50. O-1 May be the Solution