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Michigan CUPA-HR October, 2009

Reshaping Your Institution’s Immigration Program and Compliance. Michigan CUPA-HR October, 2009. With you today…. Scott F. Cooper Partner & Managing Attorney – Troy Office Fragomen, Del Rey, Bernsen & Loewy, PLLC 2301 W. Big Beaver Road, Suite 225 Troy, Michigan Main Phone 248-649-5405

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Michigan CUPA-HR October, 2009

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  1. Reshaping Your Institution’s Immigration Program and Compliance Michigan CUPA-HR October, 2009

  2. With you today… Scott F. Cooper Partner & Managing Attorney – Troy Office Fragomen, Del Rey, Bernsen & Loewy, PLLC 2301 W. Big Beaver Road, Suite 225 Troy, Michigan Main Phone 248-649-5405 Direct Dial 248-282-5703 Fax 248-649-5121 www.fragomen.com scooper@fragomen.com

  3. With you today… Lynn Shotwell Executive Director American Council on International Personnel 1101 15th Street NW Suite 750 Washington DC 20005 Main phone 202-371-6789 Direct dial: 202-683-2162 Fax 202-371-5524

  4. What we’ll cover… • The Changing Immigration Climate • New Government Initiatives • Workforce Reduction Impacts • Reshaping Your Institution’s Policies and Procedures

  5. Climate Change • The recession raises issues in hiring foreign nationals • Agency priorities change from national security to saving US worker jobs • Durbin & Grassley, Lou Dobbs, FAIR, IEEE and the AFL-CIO • Audits and convictions related to visa fraud and noncompliance • Immigration enforcement before or as a part of comprehensive reform • State and local immigration provisions • Obama Administration focus on employers

  6. Stricter Requirements • Students and Exchange visitors • SEVIS II • Greater government scrutiny of worker petitions • Staff positions tend to be more problematic if no clear specialty degree requirement • More narrow interpretation of extraordinary ability and outstanding professor/researcher definitions or permanency of research positions which can lead to having to process more PERM labor certifications

  7. Stricter Requirements • Continued delays • Permanent residence case processing • PERM processing delays and audits • Visa quota backlogs for those born in China or India, or for bachelor level professional positions. • Visa issuance due to security checks affects travel • New consular forms and procedures; higher refusal rates • Growth in costs related to sponsoring students, exchange visitors and temporary workers • Increased SEVIS program fees, government filing fees

  8. Enforcement Initiatives • Greater DOS and ICE SEVIS enforcement • Out-of-status students find it difficult to be reinstated • ICE detaining students based on violations of SEVIS errors • Increasing I-9 audits • H-1B labor condition application compliance investigations • USCIS worker petition fraud investigations • PERM audits • Export control compliance issues in visa issuance

  9. Enforcement Initiatives • Social security no-match rule rescinded • ICE still considers receipt of a no match letter as potential constructive knowledge of unlawful status • E-Verify requirements • Federal contractor rule • States requiring E-Verify for all employers or for state contractors • Michigan House bill 4355 – all public contractors, private right of action • Oakland and MaComb County E-Verify requirements – County employees and contractors (MaComb county contracts of > $20,000)

  10. Workforce Reduction • Regulatory compliance issues: • F-1 on-campus employment which displaces a US worker • Layoffs focused on temporary visa employees • Potential H-1B worker wage complaint • National origin discrimination? • Impact of layoffs on PERM cases • US worker layoff • Potential complaint to USDOL regarding continuing H-1B worker and/or H-1B wages • Potential complaint regarding PERM in process or pending

  11. Workforce Reduction Impacts • Wage and/or benefit reduction programs • Required wage issue for H-1B, H-1B1 and E-3 workers, potential need to file new LCA with DOL and amended petition with USCIS • Impact on PERM supported permanent residence cases if wage reduction would preclude offering prevailing wage

  12. Reshaping Your Immigration Policy • Develop/Review Your Written Policy • Centralized immigration administration • Define the roles in management of advice and documentation • Prepare for greater case scrutiny • Improve case management • Prepare for agency contacts • Dedicate appropriate resources

  13. Develop/Review Your Policy • Who is authorized as a representative and signatory on immigration-related matters • For which types of positions will the institution provide visa sponsorship – faculty, staff, adjuncts, technical, joint positions with related institutions • Visa request and process • Who is authorized to initiate • Information gathering and case processing • Limitations on cost sharing

  14. Develop/Review Your Policy • Create a clear permanent residence sponsorship policy • For which positions will sponsorship be considered • Required initiation of special handling for tenure track faculty within 18 month timeframe • Minimum waiting period • Limitations on cost sharing • Labor certification costs covered by employer • Request process and justification • Policy relative to dependents • Cost sharing • Income tax consequence to employee of employer-provided immigration benefits for dependents

  15. Centralized Administration • Move from departments into a centralized office to better manage and oversee • PERM, iCERT and E-Verify system registration and management • Centralized recruitment coordination for labor certifications • Coordination of and responsibility for I-9, E-Verify and H-1B LCA compliance • Grant and research administration oversight of export control compliance

  16. Define Roles • International office • Limitations on advice • Departments • HR • Employees • General counsel • Outside counsel • Define dual representation position • Single or multiple providers • Case submission process • Government relations

  17. Prepare for Greater Scrutiny • Review job descriptions and minimum job qualifications • More careful preparation and documentation of applications and petitions • Submit all with initial filing to avoid requests for evidence • Don’t be surprised by more frequent requests for evidence • Consult with outside counsel or outsource as appropriate

  18. Improve Your Case Management • Create effective critical date and case management systems • Strategize longer term case requirements soon after hire • Due to iCERT delays, can no longer risk last minute H-1B, H-1B1 or E-3 cases. Allow 2-4 weeks to process LCA in case FEIN number has to be confirmed to DOL • Begin processing special handling labor certifications earlier to assure filing within 18 months of selection • Saves money, time and effort

  19. Are You Ready for a Visit? • ICE investigations of SEVIS managed violators • ICE or DOL I-9 audits • DOL H-1B LCA investigations • USCIS FDNS fraud investigations • US DOC export control investigation • FBI security checks or arrival confirmations

  20. Dedicate Resources • Provide sufficient training for personnel • Immigration training • I-9 & E-Verify training • Systems support • SEVIS • Critical date management • Case management • Online I-9 and E-Verify systems

  21. Questions & Answers

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