Consider doing an internal Form I-9 audit or an external audit performed a representative of our office! Immigration and Customs Enforcement (”ICE”) announced on July 1st, 2009 that it will send audit letters to 652 businesses throughout the U.S. to determine whether they are complying with employment verification laws and regulations.

The ICE News Release states: “Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.”

The 652 businesses being presented with a Notice of Inspection. Apparently, an I-9 audit may have been selected for inspection as a result of leads and information obtained through other investigative means. ICE further states: “Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.” The ICE Release can be viewed at http://www.ice.gov/pi/nr/0907/090701washington.htm

Our office is in the process of assisting several employers with these audits and it appears that, for many, the receipt of information from the U.S. Social Security Administration or the State Department of Labor may be the genesis of the investigation.

For more information on the I-9 Audits, the Employment Verification Process or prearing a response to a Notice of Investigation from ICE, please visit the ICE website at www.ice.gov or contact our offices at www.visaserve.com. You can also call us at 201-670-0006 (x107).

The United States is a nation of immigrants. We continue to maintain a dominant position among the nations in the world because of the hard work of skilled and unskilled foreign national workers who continue to bring their unique skills and talents. Immigration to the United States provides an opportunity for the exchange of cultures and traditions and allows us to be competitive with the other dominant countries of the world. By favoring highly-skilled workers in the immigration process, the U.S. is able to remain on the cutting-edge of the worldwide brain drain. Highly-skilled professional and specialty occupation workers that come to our shores (researchers, scientists, doctors, engineers, teachers, etc.) continue to build important economic infrastructure that strengthens our tax base and revitalizes our floundering social systems. Restrictive immigration policies should be directed at hardened criminals and pronounced terrorists and those seeking to do harm to our nation. The immigration lawyers on the Visaserve Team at Nachman & Associates, P.C. provide prompt and personal immigration law services to and from the U.S. and “work hard each day to save the world one person at a time”. Visit us on the web at www.visaserve.com or call us at 201-670-0006 (x100).

Naturalization: Are You Eligible and Should You Apply?

Presented by: Victoria Donoghue, Esq.

Rights of Citizenship

• Ability to petition for the permanent residence of parents, children and spouse with no backlog
• Ability to bestow USC on child born abroad
• USC cannot be placed in removal proceedings
• Right to vote, hold office, and serve on juries
• Right to live abroad indefinitely

Liabilities of Citizenship

• May lose citizenship in native country
• Could highlight a ground for removal
• May lose property owned in home country

Eligibility for NATZ by Application

• Must be LPR
• Must be at least 18 years old
• Must be a resident continuously for 5 years subsequent
to LPR status (3 years if married to USC)
• Must have resided for at least 3 months in the state in which the petition is filed
• Must be physically present in the US for at least ½ of the 5 yrs
• Must reside continuously within the US from the date the application is filed up to the time of admission to CITZ
• Must not be absent from the US for a continuous period of more than one year during the period for which continuous residence is required
• Must be a person of good moral character for 5 yrs
prior to filing
• Must be attached to the principles of the US Constitution
• Must be willing to bear arms for the US
• Must not be otherwise barred (subversive, communist, etc)
• Must be able to satisfy the Civics and English language requirement

Continuity of Residence

• An absence of < 6 months does not break the alien’s continuity of residence for NATZ purposes
• An absence of 6 months or more but < 1 year breaks the continuity of the alien’s residence for NATZ purposes absent a reasonable explanation (like an oversees assignment with a US employer)
• An absence of 1 yr or more automatically breaks the continuity of the alien’s residence for NATZ purposes, unless the alien takes steps prior to the expiration of the yr to preserve the continuity of residence
Avoiding a break in the continuity of residence
• The result of a break in the continuity of the alien’s residence is that the alien must start all over again to accumulate the 5 yrs upon returning to the US
• Ways to avoid a break:
– Return to the US every 6 months or every yr if there is a reasonable explanation for the absence
– Apply for extended absence benefits (N-470) to preserve continuity of residence. Note: Unless the alien is a government employee, he still must be actually physically present in the US for at least ½ of the 5 year period

N-470 Eligibility Requirements

• Alien must be physically present and residing in the US as a LPR for an uninterrupted period of one yr prior to the absence
• Must be employed abroad by the US gov’t, a US research institute, a US corporation or mjty owned subsidiary, or an international organization
• Must request extended absence benefits before the alien has been absent from the US for one year
• The absence must be in furtherance of overseas employment

Reentry Permit

• Alien can also request an I-131 request for a reentry permit along with the N-470
• The purpose of the reentry permit is to maintain lawful permanent residence status. If the client wants to make sure to maintain continuous residence for NATZ purposes, he/she must also file an N-470.

Good Moral Character (GMC)

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”

People who are NOT of GMC

• Habitual drunkards
• Certain individuals are inadmissible under 212(a)(2)
• One who’s income is derived principally from gambling
• One who has given false testimony to obtain a benefit under the INA
• One who is convicted of an aggravated felony
• One who has committed genocide or torture
• One who has been imprisoned (after a conviction) during the “statutory period” for an aggregated period of 180 days or more
• One who has voted unlawfully or made a false claim to USC

Grounds of Inadmissibility Under INA § 212 (a)(2)

• Conviction or admission to the essential elements of crimes of moral turpitude (CIMT)
• Conviction or admission to the essential elements of controlled substance violations
• Multiple criminal violations
• Trafficking in controlled substance
• Prostitution and commercialized vice
• Smugglers of aliens
• Practicing polygamists

THESE ARE ALSO GROUNDS OF REMOVAL!

What is a CIMT?

• Not defined in the act- no exhaustive list
• Conduct which is inherently base, vile, depraved or contrary to accepted rules of morality
• Felonies and Misdemeanor
• Criminal statute must be examined

Exceptions to CIMT

• Petty Offense
• Juvenile Offenders
• Purely Political Crimes

Nonstatutory/Discretionary GMC Grounds

• Nonsupport of dependents
• Homosexuality- But cannot be only basis for
baring NATZ
• Adultery tending to destroy an existing marriage
• Knowing & willful failure to register with selective service between 18-26 within statutory period
• Drunk driving
• Other bad acts showing poor moral character

Civics & English Language Requirement

• NATZ applicant must demonstrate:
– An elementary level reading, writing and understanding of English
– A knowledge and understanding of the fundamentals of US history & government

Proof of Civics & English Knowledge

• All NATZ applicants must pass an examination. At the examination, the CIS examiner will do 3 things:
– Go over the NATZ application in detail, questioning about any problems such as an arrest
– Gauge the alien’s ability to understand and respond to questions (alien will be asked to write a sentence).
– Test the alien’s knowledge of US gov’t & history through the use of standard questions on the subject
• If the alien does not pass, a second examination will be scheduled within 90 days

Exceptions to English Language Requirement

• Persons over 50 and living in the US for 20 yrs subsequent to becoming a LPR
• Persons over 55 and living in the US for 15 years subsequent to becoming a LPR
• Special consideration in determining the knowledge requirements to persons over 65 with 20 yrs as a LPR (a test of 10 questions in the person’s native language where only 6 need to be correct)
• Physically/developmentally disabled or mentally impaired including:
• Individuals with Alzheimers, Parkenson’s Disease, senile dementia or a related disability

Disability Waivers

• Must establish a physical or developmental disability or mental impairment
• A medical doctor, osteopath, or clinical psychologist “experienced in diagnosing” these disabilities must complete an N-648 to be filed with NATZ application
• Even with a disability waiver the applicant still must meet the moral character, residence, and other NATZ requirements
• However, the oath can be waived if the person is unable to understand or communicate the meaning of it.

Designated Representative

• A representative of a person who is developmentally or physically disabled or suffering from mental impairment can complete the N-400 exam (including the oath) by attesting orally and submitting documentation that the applicant qualifies for NATZ
• Representative may be a legal guardian, surrogate, USC spouse, parent or adult sibling
• An MD, osteopathic doctor, or clinical psychologist must provide an evaluation attesting to the impairment and the ability to take the oath

Redesigned NATZ Exam

• In the past, the NATZ testing process and test content varied in each USCIS district office
• CIS revised the process to ensure uniformity
• CIS began administering the new test in October 2008
• Applicants will still have 3 chances to read & write a sentence. However, the study material will include a civics-based vocabulary list
• Sentences will focus on civics and history instead of broad range of subjects
• Civics questions will be drawn from a new list of questions

Adjudications of N-648

• CIS will look for:
– A complete description of the medical diagnosis
– An explanation of how the disability affects the applicant and prevents him from learning or demonstrating knowledge of English/Civics
– The MD’s conclusion with a focus on the nexus between the disability and the applicant’s ability to learn or demonstrate knowledge of English/Civics
– CIS may request documentation if the interview raises questions about the extent of the disability

CIS MAY NOT SECOND GUESS THE MD

Reasonable Accommodations

• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver
• Section 504 of the Rehabilitation Act of 1973 requires the CIS make reasonable accommodations/modifications to make it possible for NATZ applicants to get through the process
• This is the case regardless of whether the applicant has applied for a disability waiver

GMC Review

• An individual must be of good moral character for the requisite 5 yrs (or 3 yrs if married to a USC) prior to filing a NATZ application and up to the time of admission as a USC. This is called the “statutory period.”
• However, some criminal activity serves as an absolute bar to NATZ even if in occurred before the statutory period.

Absolute Bars to NATZ

• Aggravated felony convictions that occurred after 11/29/1990 render the person ineligible to establish GMC even when the conviction was before the statutory period
• Convictions for murder, even before 11/29/1990, render the person permanently ineligible to establish GMC

THESE ARE ALSO GROUNDS FOR REMOVAL

Definition of Aggravated Felony

• Murder, rape, or sexual abuse of a minor
• Trafficking in a controlled substance
• Trafficking in firearms or explosive material
• Money laundering
• Crimes of violence w/ an imprisonment term of > 1 yr
• A theft offense w/ an imprisonment term of > 1 yr
• Crimes related to prostitution & child pornography
• Offenses related to national security
• Fraud offenses
• Offenses related to bribery, counterfeiting or forgery
• Perjury

Deportation

• If an individual with a conviction applies for naturalization, and he or she is removable under §237(a) on the basis of that conviction, the NATZ unit may (and usually will) issue a Notice to Appear (NTA), commencing removal proceedings against the individual

ALWAYS MAKE SURE THAT A CLIENT HAS NOT COMMITTED A CRIME SUBJECTING HIM/HER TO DEPORTATION BEFORE FILING A NATZ PETITION

Exceptions to the Normal NATZ

Requirements

• Veterans/Military Service during hostilities
– If a person served in US Armed Forces during hostilities and continues to be in Armed Forces or was honorable discharged- he/she need not be a LPR to naturalize.
– Physical presence and residency requirements inapplicable
– 9/11/2001 to present is a period of hostilities for NATZ purposes
• Veterans/Military Service (not during hostilities)
– If a person served in the Armed Forces for a period aggregating one year (and separated honorably) and if NATZ application is filed during the service or within 6 months after separation, physical presence & residency requirements are inapplicable. No need to be a LPR.
– If person files after 6 months, he/she must be LPR
to naturalize
• Spouses of USC’s- eligible for NATZ 3 yrs after obtaining LPR status (instead of 5)
• Spouses (in LPR status) of USC’s who are assigned abroad by their qualifying US employer (next slide)
are exempt from continuous residence and physical presence requirements. They are permitted to naturalize prior to accompanying their USC spouses abroad
• Must be physically present in US at time of naturalization
• The USC spouse assigned abroad MUST be working for:
– The US government
– An American Research Institute
– A US firm engaged in the development of foreign trade or commerce
– A public international organization that the US is a member of
• Battered Spouses- a victim of domestic abuse perpetrated by a USC spouse is eligible for NATZ after he/she has resided continuously in the US for a period of at least 3 years
• No requirement that the abused spouse be living with the abuser in marital union
• Must have obtained LPR status based on a battered spouse filing, or through AOS or cancellation of removal
• Abusive spouse need not be alive at the time of filing a NATZ petition

Questions?

Please feel free to contact our office if you still have questions:

Victoria_donoghue@visaserve.com
201-670-0006 ext. 101

http://www.visaserve.com

Thank you.

As our economy continues in its downward spiral, company mergers, acquisitions and restructurings (“transactions”) are likely to continue. In general, since a merger, acquisition or restructuring is a “corporate transaction”, the immigration issues often get left in the dust. For this reason, it is important that immigration repercussions that arise from a merger, acquisition or restructuring are considered and that Business Immigration Counsel is brought into the “deal” or arrangement at the appropriate time – earlier rather then later. This is especially the case since Business Immigration Counsel may be able to save money for the parties to the transaction.

Immigration regulations closely tie the employer’s identity, location and ownership structure; any change from the merger/acquisition may immediately invalidate an alien employee’s non-immigrant visa. The loss of non-immigrant visa validity could immediately affect an employee’s work status in the U.S. For example, if a transaction is undertaken and the successor party fails to amend the H-1B petition and/or the underlying Labor Condition Application (the “LCA”) then the H-1B nonimmigrant may be out of status. The U.S. Department of Homeland Security, Citizenship and Immigration Service (“CIS”) has made it clear that there is no “grace period” and that once an H-1B non-immigrant is no longer employed with the H-1B sponsor then the individual is deemed to be out-of-status.

It is for this very reason that Business Immigration Counsel advise employers who are involved in a transaction to be sure to annotate the Public Access File (“PAF”) prior to the transaction so that the successor organization clearly assumes the liabilities of the H-1B nonimmigrants. This “assumption” can be added to the PAF prior to the closing of the transaction and this way there is no requirement that there be amendments to the H-1B be submitted. However, amendments to H-1Bs may be desired by H-1B employees if they will be traveling outside the U.S.

Depending upon an individual’s progress in the green card process, Immigrant Visa Petitions may also be affected. A determination will need to be made as to whether or not the new company owner would be considered to be a “successor-in-interest”. If the organization’s new owner has assumed all of the past owner’s liabilities, then the new owner may qualify as a “successor-in-interest”. If the new company is a “successor-in-interest” then the green card process can be continued by the successor organization. Hence, the new employer would continue with the green card process on behalf of the foreign national employee without having to start the green card process/labor certification/PERM from the beginning.

The third and one of the most important issues with which a business owner or transferor should be concerned is the Form I-9. A “successor-in-interest” can assume the I-9 liabilities of the organization. Failure to comply with I-9 requirements may result in serious sanctions. Therefore, before a transaction is undertaken, an examination of the Forms I-9 of the organization should be conducted through either an audit or a review. If the successor organization does not assume the Forms I-9 of the prior organization then new I-9s can be done for each of the organization’s employees. Such Forms I-9 should be prepared for all employees to avoid any allegation of an unfair immigration-related employment practice such as document abuse or discrimination on the basis of citizenship or nationality.

Immigration repercussions should be considered early on in any transaction. Initially, an analysis of the immigration status of all of the organization’s alien employees and a determination of the form of the corporate change on their status should be considered. Following this analysis, filings of any applications necessary to maintain the employees’ status can be appropriately considered.

In an ongoing attempt to keep HR professionals up-to-date with business immigration law rules and regulations, our office continues to forge strategic alliances with various professional organizations that are able to obtain and provide important information to their members.

When traditional immigration approaches do not work, our knowledgeable and skilled legal team offers many visa options to meet immigration goals. Please feel free to contact us at any of our several office locations, and speak to a member of our staff in one of the 15 languages spoken, English, Spanish, French, Japanese, Korean, Slovak, Czech, Polish, Tagalog, Hindi, Tamil, Italian, Russian, Chinese, and German.

To meet a growing demand for Canadian Immigration Law Services, Nachman & Associates formed a Canadian Division in 2005. Managed by licensed Canadian legal staff and with offices in Montreal and Toronto, as well as New York and New Jersey, our Canadian Division attorneys are in the unique position to assist with cross-border issues.

Nachman & Associates, P.C. is also proud to announce the 2007 formation of a Global Immigration Division to assist clients with immigration services to countries such as the UK, China, New Zealand, Australia, and more. Our Global Division staff is fully equipped to assist with international transfers to and from the United States. If you, or any member of your staff, are interested in receiving more information about with regard to changes in the corporate structure or in connection with a merger or acquisition or layoff or termination. please contact us at 201-670-0006 (x100) or at info@visaserve.com. Feel free to visit us on the web at www.visaserve.com.

There are three potential “hot spots” for audits and investigations for the government related to the immigration and nationality laws. The first has to do with the documentation that the employer is required to maintain in connection with the H-1B nonimmigrant professional and specialty and occupation worker visa. The second area of potential audit concerns the employer’s obligations under the Immigration Reform and Control Act of 1986 (“IRCA”) [Pub. L. No. 99-603, 100 Stat. 3359] (known to HR Professionals as the “I-9 Process”). The third, and one more recent, area of audit surrounds the new Labor Certification Application Program called “Permanent Electronic Review Management” (“PERM”). Each of the foregoing government programs anticipates compliance through “audit”. Even a rudimentary understanding of the complex documentary requirements for each of these programs can help and employer to avoid potential liability.

First, the U.S. Department of Labor (“DOL”) regulations that govern the maintenance of professional and specialty foreign national worker require an organization to develop and produce certain documents concerning the wages and the working conditions of an H-1B nonimmigrant. These documents are referred to as the Public Access File (“PAF”). The PAF documents are required to be maintained at the H-1B worksite immediately after the employer files the Labor Condition Application (“LCA”) with the DOL. The employer is well-situated to ensure they maintain PAF documents and be sure that they continue to pay the H-1B nonimmigrant the specified wage on the LCA. Under the American Competitiveness and Workplace Improvement Act (“ACWIA”), an H-1B nonimmigrant must be offered the same company benefits as those offered to “similarly situated” non-H-1B employees in the organization.

DOL audits can arise as a result of a complaint by a disgruntled employee or as a result of a randomly conducted investigation. Upon a DOL audit (normally undertaken by the Wage and Hour Division) an employer may be found not to be in compliance with (1) paying the H-1B nonimmigrant the specified wage (which pursuant to the H-1B Reform Act of 2004 became effective on March 8, 2005 must be 100% of the federally mandated prevailing wage); and/or (2) maintaining PAF documents; and/or (3) providing the H-1B nonimmigrant with the same benefits as those provided to all other “similarly situated” non-H-1B employees. Any failure to comply with DOL requirements can result in an employer being liable to pay back wages to an H-1B employee, debarment from the use of the H-1B program and/or other potential civil and/or criminal liabilities. Also, if the employer is a government contractor, the failure to comply may result in the debarment from the government contacts.

A second potential audit area for audit and investigation of an employer concerns employment verification and employer sanction law (referred to as the “Immigration Reform and Control Act of 1986” or “IRCA”). As every HR Professional knows, IRCA is an integral aspect of every hire. Under IRCA, every employer is required to properly verify the eligibility of an employee to work in the U.S. on the Form I-9. The I-9 Form is a deceptively simple document. The I-9 Form is only one page in length but it continues to raise issues about proper preparation and retention.

Since the U.S. Department of Homeland Security’s (“DHS”) absorption of the Legacy-INS, the Immigration and Customs Enforcement Division (“ICE”) has been charged with worksite inspections and audits of I-9 documents. The “good news” for employers is that the number of I-9 inspections has been on the decline. The “bad news” for employers is that ICE Officers are not inclined to be lenient and educate employers about their responsibilities but are more likely to impose sanctions.

Given the present focus on “security” and “identity” in the workplace, it is likely that ICE Officials will be more active in their investigations in the future. ICE is not required to wait for a specific lead. The investigative authorities of the DHS have implemented a “General Administrative Plan” (the “Plan”). The Plan identifies employers from a national database and it targets specific industries that have developed a reputation for hiring unauthorized workers (e.g., restaurant, meat-packing, commercial cleaning, textile and garment). The Plan also provides for “random” audits. For example, due to national security concerns, great efforts continue to be placed on identifying those individuals who have access to the nation’s “critical infrastructures” such as airports, wastewater facilities, and highways.

Finally, the third area of interest for employers from an audit perspective is the new PERM process for Labor Certifications Applications (the “Green Card”). After pending for over two (2) years, in December 2004, the PERM regulations became “Final” and on March 28th, 2005, the old Labor Certification Application process was replaced by PERM. While PERM promises faster green card processing, the application process is much more complex. The DOL seems to be sending a message that it is easier to audit the employer as opposed to processing an Application.

The new PERM process requires an employer to obtain a Prevailing Wage Determination (the “PWD”) from the State Workforce Agency (the “SWA”) (e.g. The NJDOL, Alien Labor Certification Unit) in the State where the position has been offered. The PWD area of the law is constantly evolving. Once the PWD is obtained, an employer must undertake a rigid “recruitment process”. Recruitment consists of placing a job order with the SWA and placing two (2) Sunday advertisements in an appropriate newspaper. The recruitment process needs to be completed within six (6) months of the filing of the PERM Application.

PERM requires meticulous preparation and a thorough understanding of the Regulations. The PERM process is analogous to the administrative process that surrounds the filing of a U.S. tax return. When the return is filed, the filer makes representations, declarations, and attestations about annual income and expenses. The filer does not submit evidence about annual income and expenses. Such information is only provided if the Internal Revenue Service (“IRS”) sends the filer a notice for an audit. The PERM program is similar. A PERM Application is filed by making attestations on the new DOL Form 9089. The Form 9089 is submitted to the DOL. DOL can either certify the Form without receiving documentation, or DOL can send out an audit letter.

The new PERM Regulations state that the DOL can request an audit of any pending Labor Certification Application for cause or in the DOL’s discretion. In the event that a prospective employer is noticed for an audit, the employer will receive an audit letter that lists the documents that will have to be submitted. The audit letter shall set a date that is thirty (30) days from the date of the letter for submission of the additional documents and shall advise the employer that the Labor Certification Application will be denied if the information is not received in a timely manner. If the employer does not respond, the PERM Labor Certification Application will be denied.

It appears clearly to be the case that immigration-related programs that are undertaken by employers may be subject to either directed and/or random government audits from the DHS and/or the DOL. Failure to adequately comply with government regulations can result in penalties. The employer’s familiarity with the intricacies of the auditing and compliance are likely to save a considerable amount of both time and money.

David H. Nachman, Esq. is the Managing Attorney at Nachman & Associates, P.C. with offices located in Ridgewood, New Jersey, New York City and Canada (and having corresponding offices in Ohio, Netherlands Antilles and California). David Nachman received his BS from Georgetown University and his JD from Case Western Reserve University where he also received a Master’s Degree in Business Administration. Nachman & Associates, P.C. provided counsel throughout the U.S. on a full array of immigration law issues. Visit us at www.VISASERVE.com .com.