Travel Advisory: Delays Due to Icelandic Volcano Eruption (04/17/2010)

If you or someone you know is stranded in the United States because of the airport closures in Europe due to the Icelandic volcano eruption and is about to exceed their authorized stay as a direct result of these closures, there are two avenues for relief:

If the traveler is at the airport and traveling under the Visa Waiver Program (VWP) and unable to depart timely, as a result of airport closures or flight delays/cancellations, travelers should:

1. Contact the U.S. Customs and Border Protection (CBP) office at the airport or;

2. Contact the U.S. Citizenship and Immigration Services (USCIS) office.

Both agencies have provided staff with guidance on the applicable legal authorities under the VWP in circumstances such as these.

If persons are traveling under a visa, they should contact the nearest USCIS office and follow the instructions at the link called “USCIS – Extend My Stay”.

While this link recommends initiating the process 45 days in advance, USCIS is providing guidance on how to handle these cases over this weekend.

Travelers should continue to contact their airline for information about flight schedules, delays and cancellations. If airlines have questions about the situation, they can contact their Regional Carrier Liaison Group (RCLG). The Miami RCLG can be reached at (305) 874-5444.

Executive Summary April 15, 2010
Listening Session – Impact of H-1B Memo on the Healthcare Industy
Background.

On March 26, 2010, the Office of Public Engagement (OPE) hosted a listening session with medical
professionals and legal practitioners who represent medical professionals. The purpose of the session was
to understand the implications of the January 8, 2010 H-1B memo, which provides guidance on
determining if a valid employer-employee relationship exists, on the healthcare industry. The session
presented stakeholders with an opportunity to explain the potential effect of the memo on the industry and
to inform the Agency of suggestions to revise or clarify existing guidance.
Principal Themes
• Structure of Physician Employment
The stakeholder community stressed the necessity of H-1B status for physicians. They explained that
many physicians first enter as J-1 visa holders to work in underserved areas and then must convert to H-
1B status. Many physicians who are required to work in underserved areas may be the only medical
provider in the area. Moreover, some states have laws that prohibit hospitals from being direct employers
of the physician. Therefore many physicians may be self-employed and unable to qualify for H-1B status
pursuant to the memo. Stakeholders claim that this reliance on the H-1B and the impact of the memo
adversely affects U.S. health care.
The stakeholders further explained that the general structure of physician employment is through a
physicians group who is the responsible party and who exercise control of the employee/physician. The
physicians group operates much the same as a staffing company. However, the stakeholders expressed
that physicians work more independently and are often not being supervised by groups that employ them.
This scenario is the dominant model. The stakeholders asserted that, under the existing guidance, the
physician cannot be supervised by the “end client”. However, in this scenario, the hospital is the “end
client” and does exercise some control over the physicians’ employment.
• Staffing Model
The stakeholder community expressed concern with the impact that the guidance poses on the staffing
model that is used to place health care professionals in the United States. Stakeholders reiterated that
several large states, including Texas and California, have laws which prohibit a hospital from being a
direct employer. Additionally, the existing staff model also allows the industry to address the challenge
of placing physicians and other medical professionals in underserved areas. For example, stakeholders
indicated that many emergency rooms outsource to staffing companies who provide physicians and can
meet the immediate needs of a hospital.
Many stakeholders also emphasize that, under the current model, staffing companies control the
employment of healthcare personnel but do not handle day to day supervision. They argue that the nature of the business makes on site supervision extremely difficult. Examples of this include: a physician who rotates between several different facilities during his or her residency; a home health care aide where no
one is present on site to supervise the clinical duties; and a group practice where the staffing company
exercises some level of control but also does not provide on site supervision.
Stakeholders stated that if the “right to control” is required, this contradicts the current regulations.
However, if the right to control is not the primary requirement, the memo needs to provide greater
specificity that this is only one of the elements considered in determining the employer-employee
relationship. Stakeholders proposed that other elements of control be considered including: who pays
malpractice insurance; whether or not the IRS legally recognizes the relationship as a valid employeremployee
relationship; and who controls hiring/firing. It was also suggested that the memo, as currently
written, invites adjudicators to make ad hoc decisions on level of control which leads to inconsistency in
adjudications.
• Individual Professions
Stakeholders asserted that different professions have different levels of inherent control, such as doctors
and lawyers. These individuals are employed within “individual professions” which require that they
exercise independent ethical judgment. Stakeholders suggested that perhaps the memo needs to outline
additional control factors that define the employer-employee relationship. This clarification would include
such elements as whether or not the employee is within a licensed profession that is controlled by certain
ethics rules.

The USCIS introduced a 16-minute video on the naturalization process including the eligibility requirements, application process, preliminary steps, interview, English tests and U.S. history and government test (civics).

The video includes two simulated interviews.

Kudos to the USCIS for this important and user-friendly resource.

YOU CAN VIEW THE VIDEO BY PASTING THIS LINK INTO YOUR BROWSER:

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=76574bbe6cb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d6369ddf801b3210VgnVCM100000b92ca60aRCRD

NEW USCIS BROCHURE: Immigration Options for Victims of Crimes
M-779 (2/10)

Immigration Options for Victims of Crimes: Information for Law Enforcement, Healthcare Providers, and Others; Violence Against Women Act; U Nonimmigrant Status; T Nonimmigrant Status

READ IT HERE AT:

http://drop.io/uscism779

Creative Solutions to Complex Problems

When traditional immigration approaches do not work, we analyze a candidate’s resume and determine if they may qualify for various nonimmigrant or temporary work permits or permanent immigrant visa transfer options such as outstanding researcher classification, TN under NAFTA or E-3 classification for Australia. Now that the H-1B nonimmigrant visa has become more difficult to obtain, we work closely with our clients who are seeking to transfer highly-skilled foreign national workers to the U.S. to determine if there are other nonimmigrant options for such transfers. No matter what the situation, our attorneys work hard to provide a variety of visa options to support their needs.

Contact Us

Our staff of immigration law professionals are sensitive to the needs of our clients and the members of their families. Many members of our staff are themselves foreign born and have family and/or friends who have gone through the immigration process. As a result, our staff of business immigration law professionals have a personal and unique approach to processing visas and for dealing with our foreign national clientele. Our legal team can clearly explain how to process temporary and permanent work permits in the U.S. The PERM Labor Certification Process is time-consuming and complex and our staff of business immigration law professionals can clearly explain the process in Spanish, French, Japanese, Korean, Tamil, Hindi, Slovak, Czech, Russian, Chinese, German and English.

To schedule a consultation, please feel free to contact Nachman & Associates by e-mail at info@visaserve.com or call us at 1-201-670-0006 (x100).

Legislation is on a fast track in the State of New Jersey Assembly would increase the level of criminality of practicing law without a license in New Jersey and create a civil cause of action for victimized clients. The bill, A-1050, backed by the State Bar Association and with no vocal opponents, would upgrade the unauthorized practice of law to a third-degree crime, punishable by a prison term of between three and five years and a $15,000 fine.

The Assembly Judiciary Committee voted 6-0 on March 8th to recommend passage of the bill, aimed largely at notaries public that offer legal services to Hispanic immigrants. In some Latin American and Caribbean countries, the term “notario” or “notario publico” signifies an attorney.

The civil-action provision would allow a court to award damages in an amount of $1,000 or three times the value of all costs incurred by the victim as a result of the criminal activity, whichever is greater, along with counsel fees and costs.

DHS Inspector General Report Exposes Abuses in State & Local Immigration Enforcement

FOR IMMEDIATE RELEASE: Wednesday, April 1, 2010

DHS Inspector General Report Exposes Abuses in State & Local Immigration Enforcement. AILA Calls upon Secretary Napolitano and Congress to End the 287(g) Program

WASHINGTON, DC – Today the Department of Homeland Security Office of Inspector General issued a comprehensive report confirming civil rights abuses in a federal program that “deputizes” state and local law enforcement agencies to enforce immigration law. The Inspector General tells of local officers arresting individuals who have committed no offense – including even victims – for the sole purpose of identifying whether they have lawful immigration status.

“Nothing is more debilitating to American values than abuses committed by local police who are the very essence of law enforcement and protection of our communities,” said Bernie Wolfsdorf, President of the American Immigration Lawyers Association (AILA). In one case, a supervisor recounted how a state highway patrol officer transported an accident victim to a jail to determine the victim’s immigration status. The officer did not take him to a hospital. The victim was not even brought to the jail to be charged with a state crime. The sole -and improper–purpose of the officer’s actions was to determine whether the victim was deportable. “Abuses like this severely undermine communities’ faith in those charged with protecting us and keeping our streets, communities, and businesses safe.”

“Many think demagogues like Sheriff Joe Arpaio of Arizona are the exception to the rule, but we now know that such abuses are happening elsewhere and with the permission of the federal government,” said Wolfsdorf. The Inspector General found that, under this deputizing program, some local police have launched operations with the aim of detaining individuals for minor offenses and violations of local ordinances so they could identify unauthorized immigrants. Police apprehended immigrants even when they had no prior arrests on state or local charges. The federal report confirms what community groups have known for years: that officers arrest individuals for minor offenses, such as fishing without a license or driving with broken taillight, as a pretext to initiate deportation proceedings.

Under section 287(g) of the Immigration and Nationality Act, state and local law enforcement agencies, acting under federal supervision, may assume federal immigration enforcement powers. This delegation of immigration enforcement power must be executed through formal written Memoranda of Agreement between the federal government and the local authority. The memoranda require state and local officers to abide by federal civil rights laws. The Inspector General found widespread lack of adequate training, guidance, monitoring or oversight. “The federal government has failed in its duty to train and supervise local officers. This program has turned local police into agents of fear within law-abiding communities,” said Wolfsdorf. “Immigration lawyers hear reports everyday that immigrants are afraid to talk to the police and to report crimes. Through this program the federal government is undermining the ability of local authorities to ensure all Americans’ safety and security.” The report also noted that Immigrations and Customs Enforcement (ICE) failed to provide accurate information about the program to Congress and the public. AILA urges Secretary Napolitano to terminate immediately the entire 287(g) program and calls upon Congress to end its funding.

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

U.S. Department of Homeland Security (”DHS”), Citizenship and Immigration Services (”CIS”) began to accept H-1B cap petitions for employment for the Fiscal Year 2010-2011. As is always the case, the next several weeks will be highly scrutinized by H-1B employers, H-1B employees and U.S. immigration lawyers. We firmly believe that the H-1B usage will afford a glimpse about the U.S. economy for some months to come.

The CIS will begin to digest and adjudicate H-1B filings. The CIS will report on its website the number of H-1B visas that have been submitted and an analysis will be undertaken to determine what amount of the H-1B cap will have been met during the first several days of filing.

Many of the H-1B cases will have been filed by way of the premium processing procedure available. As in the past, the CIS will in-take cases, count them toward the cap and begin to adjudicate the cases.

As many are aware, if the H-1B quotas for bachelor’s level and advanced-degree cases are not reached within the first several days of submission, the CIS will continue to in-take cases until the quotas have been met.

If CIS reaches the 65,000 for bachelors or equivalent cases or 20,000 for U.S. masters during the first five business days of the H-1B in-take process, then the CIS is required to perform a lottery. The lottery is designed to select H-1B cases to meet the quotas. If the 20,000 quota for U.S. master’s degee filings are not met then the CIS will continue to accept such cases until sufficient numbers are received to exhaust the exemption. If more than 20,000 advanced-degree exemption-eligible cases are received during the initial five days but the standard cap has not been reached, the additional cases over and above the 20,000 are adjudicated as bachelor’s or equivalent cases under the cap.

For more information about H-1B nonimmigrant visa preparation and filing, please visit us on the web at http://www.visaserve.com or you can e-mail us at info@visaserve.com.

We continue to remind our clients and friends of the Firm that some H-1B filings are exempt from the cap. Also, we continue to remind our clients that a detailed analysis should be undertaken with regard to whether or not a potential employee qualifies for the H-1B nonimmigrant visa classification or if that person may be able to qualify for another or a different nonimmigrant visa that would allow him or her to work in the U.S.