Eli Kantor to meet with Congressmen

On April 10,2008, as part of the American Immigration Lawyers Day of Action, Eli Kantor will be meeting with Congressman Xavier Becerra and Congresswomen Lucille Royball in order to lobby them to enact Comprehensive Immigration Reform.

Immigration to Appeal Injunction on No-Match Letters

Immigration has announced that in addition to modifying the rule re: Mismatch letters, they will also file an appeal to the 9th Circuit Court of Appeals to seek to overturn the injunction enjoining Immigration from enforcing their new rules re: Mismatch letters. It appears to be determined to use mismatch letters as a weapon to coerce employers to fire all employees whose social security numbers don't match or face prosecution.

7 Days left to file your H-1B Visa Application

The countdown to March 31st, the day to file your H-1B visa application is approaching. Although Immigration has indicated that they will accept all applications received through April 7th to participate in the H-1B lottery, it is still strongly recommend to file on April 1st.

Congress proposes bill to increase H-1B visas

Congress has proposed a bill that would increase the number of available H-1B visas from the current 65,000 cap to 195,000.

Immigration announces new rules for H-1B visas

USCIS has issued new rules regarding the procedures for filing H-1B visas. The rules would prohibit employers from filing multiple H-1B petitions for the same employee in order to ensure a fair and orderly distribution of available H-1B visas. Also, since it is anticipated that the 65,000 visa cap will be reached on the first day - April 1st, Immigration will accept H-1B visa petitions for the first 5 business days thru Monday, April 7th, and then conduct a lottery to determine which ones to accept.

New Proposed Rule Re: No-Match Letters

The DHS released today a Supplemental Proposed Rulemaking for the No-Match Rule previously issued on August 15,2007. This rulemaking addresses three issues cited in a decision of the U.S. District Court for the Northern District of California enjoining the August 2007 No-Match Rule.This supplemental proposed rulemaking provides a more detailed analysis of how DHS developed the No-Match policy and will supposedly help responsible employers ensure that they are not employing unauthorized workers. The underlying purpose of the proposed new rule is to avoid the parts of the old rule that the Court found to be objectionable, so as to create a new rule that would not be subject to an injunction.

Get Ready to File H-1B Visa Application by April 1st

On April 1, 2008, the DHS will start to accept applications for H-1B visas. Since Congress has only allocated 65,000 visas, it is strongly recommended that you file on April 1st, because last year all of the visas were used up on the first day.

Illegal Reentry to the US - now the #1 crime prosecuted by the US Attorney

The LA Times reported that the #1 crime now being prosecuted by the US Attorney's office in Los Angeles is illegal reentry of an alien who was previously ordered deported. This is due to a policy shift in the priorities of the US Attorney's office. The program is expected to be expanded to the entire Southwest region.

Emilio Gonzalez to resign as head of DHS

Emilio Gonzalez announced that he will resign as head of the DHS in order to spend more time with his family. The DHS is currently facing massive processing delays. Hopefully, the Bush administration will promptly appoint a replacement, who will process the massive backlog in an efficient and fair manner, but don't hold your breath.

Bill Gates Lobbys Congress for more H-1B Visas

Bill Gates testified before Congress urging them to expand the 65,000 quota for H-1B visas so that the US could maintain its competitive edge in the Computer industry.

Computer Industry Pushes Congress for More H-1B visas

With the April 1st date for the filing of H-1B visas fast approaching, Computer Industry leaders are lobbying Congress to increase the 65,000 visa cap, which was filled on the first day to apply last year. However, with unemployment up and an economic recesssion looming, in an election year, the chances for any positive immigration legislation are extremely slim. At this time, Congress is looking at Enfocement Only legislation.

Both Parties Push Immigration Crackdown

As the election year heats up, both political parties, Democrats and Republicans are pushing for a crackdown on illegal immigration. Although the proposals are impractical and mostly symbolic, they play well with voters in an election year. With unemployment numbers going up and the fears of a looming recession, illegal immigrants make a convenient scapegoat for the nation's economic woes. Therefore, Congress is proposing to increase fines on aliens caught crossing the border illegally, putting more money into the border fence with Mexico, and threatening to withhold federal funds to Police Departments in cities that don't question immigrants legal status.

ATTENTION SMALL BUSINESS OWNERS: Immigration recently announced that a revised Employment Eligibility Verification Form I-9 will be required effective on December 26 .2007. The new Form I-9 has significant changes that remove five documents for proof of both identity and employment authorization. Employers must use the amended Form I-9 (Rev. 06/05/07) for all employees hired on or after November 7, 2007. Employers who fail to use the new form after December 26.2007 may be subject to penalties by Immigration and Customs Enforcement (ICE). Note, employers only need to complete the new version of Form I-9 for new employees. They do not need to complete new forms for existing employees. However, they must use the new I-9 Form when their employees require re-verification.This is all part of ICE's new aggressive workplace enforcement strategy, which has included a huge upsurge in workplace raids by ICE in response to growing political pressure. They are aggressively enforcing laws that are already on the books, which prohibit an employer from "knowingly" employing an unauthorized alien. Consequently, employers need to get ready now, so that they will be prepared when Immigration knocks on the door. Here are seven secrets to surviving an Immigration Audit: #1 Do An Internal I-9 Audit Now. Don't wait for Immigration to raid your workplace or to send you a letter demanding to inspect your I-9 Forms within 72 hours to first review them. Do it now. Compare your payroll with your I-9 forms and make sure that you have an I-9 Form for all employees. Make sure that they all have been filled out correctly and completely and that you have started to use the new revised I-9 Form (Rev. (06/05/07).#2 Centralize the I-9 Process. Train 1 or 2 employees in the technical process of filling out I-9 forms. Then have them always be in charge of completing the I-9's , instead of random supervisors, who may or may not be familiar with the process. #3 Do Not Put the I-9's in the Employee's Personnel file. Keep the I-9 forms in a separate file. You don't want to have to turn over your employee's personnel files to Immigration, since they contain privileged information. (You can put a copy of the I-9 in the employee's personnel file, if you want, but keep the originals separate.) #4 Always Examine the Original Documents - Not Copies. It is critical that you examine the original document, "green card", drivers license or social security card, not a copy. Make sure that you are using the revised list of approved documents, effective December 26, 2007.#5 Copy the Front and Back of All Documents that were Examined, and Attach to the I-9. Although employers are not legally required to make a photocopy of the documents that they examined, doing so, demonstrates the employer's good faith, and if questioned, the employer can point to what documents they relied upon, even if they ultimately prove to be fraudulent. #6 Establish a Written Policy that Fraud in the Employment Application Process, Will be Grounds for Termination. By doing so, the employer will clearly have the right to terminate an employee if it later discovers that he submitted fraudulent documents to obtain employment. #7 If you Receive a Social Security Mismatch Letter, Contact Your Attorney First, Before Responding. The Social Security Administration is sending thousands of Social Security Mismatch Letters to Employers, informing them that there is a "mismatch" in the names and social security numbers of some of the employer's employees. Although a Federal Court Judge has issued a preliminary injunction preventing ICE from sending letters together with the SSA, there may be serious legal consequences for the employer. Therefore, immediately contact experienced legal counsel before responding.

Employers Beware: Fines For Immigration Violations To Increase Exponentially

EMPLOYERS BEWARE:
FINES FOR IMMIGRATION VIOLATIONS TO INCREASE EXPONENTIALLY


On February 22, 2008, Attorney General Michael B. Mukasey announced higher civil fines against employers who violate federal immigration laws. The new rule will become effective as of March 27, 2008.

Under the Immigration and Nationality Act, employers may be fined for knowingly employing unauthorized aliens, for failing to comply with the requirements relating to employment eligibility verification forms, for wrongful discrimination on the basis of nationality or citizenship, and for immigration-related document fraud.

Under the new rule, these fines will increase by as much as $5,000 per alien. For example, the minimum penalty for knowingly employing unauthorized aliens will increase from $275 to $375. The maximum penalty for a first violation will increase from $2,200 to $3,200. The penalty for multiple violations will increase from $11,000 to $16,000.

Now that the civil fines will be increased dramatically, it is more crucial than ever for employers to protect themselves from Immigration Audits. The following list contains seven secrets to surviving an Immigration Audit:

#1 Do An Internal I-9 Audit Now. Don't wait for Immigration to raid your workplace or to send you a letter demanding to inspect your I-9 Forms within 72 hours to first review them. Do it now. Compare your payroll with your I-9 forms and make sure that you have an I-9 Form for all employees. Make sure that they all have been filled out correctly and completely and that you have started to use the new revised I-9 Form (Rev. (06/05/07).

#2 Centralize the I-9 Process. Train 1 or 2 employees in the technical process of filling out I-9 forms. Then have them always be in charge of completing the I-9's , instead of random supervisors, who may or may not be familiar with the process.

#3 Do Not Put the I-9's in the Employee's Personnel file. Keep the I-9 forms in a separate file. You don't want to have to turn over your employee's personnel files to Immigration, since they contain privileged information. (You can put a copy of the I-9 in the employee's personnel file, if you want, but keep the originals separate.)

#4 Always Examine the Original Documents - Not Copies. It is critical that you examine the original document, "green card", drivers license or social security card, not a copy. Make sure that you are using the revised list of approved documents, effective December 26, 2007.

#5 Copy the Front and Back of All Documents that were Examined, and Attach to the I-9. Although employers are not legally required to make a photocopy of the documents that they examined, doing so, demonstrates the employer's good faith, and if questioned, the employer can point to what documents they relied upon, even if they ultimately prove to be fraudulent.

#6 Establish a Written Policy that Fraud in the Employment Application Process, Will be Grounds for Termination. By doing so, the employer will clearly have the right to terminate an employee if it later discovers that he submitted fraudulent documents to obtain employment.

#7 If you Receive a Social Security Mismatch Letter, Contact Your Attorney First, Before Responding. The Social Security Administration is sending thousands of Social Security Mismatch Letters to Employers, informing them that there is a "mismatch" in the names and social security numbers of some of the employer's employees. Although a Federal Court Judge has issued a preliminary injunction preventing ICE from sending letters together with the SSA, there may be serious legal consequences for the employer. Therefore, immediately contact experienced legal counsel before responding.

Sponsor Your Employees For H-1B Visas By April 1, 2008!

SPONSOR YOUR EMPLOYEES FOR H-1B VISAS BY APRIL 1, 2008!, Feb. 28, 2008
By Eli M. Kantor

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Fiscal Year, which begins on October 1. Applications for the upcoming Fiscal Year are accepted beginning on the preceding April 1 (or the first working day after that date).

All employers who are thinking about filing for an H-1B visa, for fiscal year 2009, must do so as early as April 1, 2008; otherwise, they are taking the chance that the quota will run out for 2009. In 2007, The U.S. Citizenship and Immigration Services ("USCIS") received approximately 120,000 petitions, and the quota of 65,000 petitions (which were randomly selected) was filled on the first date filing was permitted, April 1.

In addition to the 65,000 quota, there is a separate allocation of 20,000 additional H-1B visas for those with a Masters degree or higher, earned at a U.S. university. For the fiscal year 2007, this allocation was filled approximately four weeks after the first permissible date of filing.

The H-1B is the most frequently obtained temporary work visa under the non-immigrant visa category in the United States under the Immigration & Nationality Act, section 101(a)(15)(H), and is available for full-time employment.

The H-1B classification is for "specialty occupations" only, which requires theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum.

If the occupation requires a license to perform the duties of the job, the alien must have that license prior to the approval of the H-1B petition. H-1B work-authorization is strictly limited to employment by the sponsoring employer.

Only "new employment" is covered under the 65,000 H-1B quota. Someone who has received an H-1B within the last six years and applies for another H-1B with a different employer is not subject to the quota. H-1B extensions as well as H-1B petitions by institutions of higher education or related or affiliated nonprofit entities, or nonprofit research organizations, or governmental research organizations are also not counted against the quota.

Below is a list of common errors that cause an H-1B petition to be rejected:

1. Incorrect fees: It is suggested to submit fees in separate checks. This lessens the likelihood of unintentional math errors when calculating the total fees due.

2. Inconsistent and incorrect answers on form I-129 and supplements. Double check the petition for consistency.

3. If your worker is or has been a J-1 worker, note that Part C, #4 of I-129 H-1B Data collection Supplement does not refer to all Js with a waiver of 2 year foreign residency rule (212e). Do not check "yes" unless your worker is a doctor who has been granted a Conrade 30 waiver to work in a medically underserved area.

So, if you're an employer looking to sponsor an employee for an H-1B visa, do not delay! Contact experienced legal counsel immediately, since it takes several weeks to translate transcripts and have an equivalency evaluation for college and work experience and to prepare all necessary forms.

File the petition by April 1, 2008, and file it correctly. Incorrect applications will not be accepted, and this may prevent or slow down the process of obtaining the H-1B process considerably.