The VISASERVE Team Brings the Best and the Brightest to New Jersey.

Nachman & Associates, P.C. Immigration Lawyers:

New Jersey, just like the United States as a whole, is a global marketplace for ideas, goods and services and even talent. In fact, businesses and entrepreneurs across the Garden State benefit from the migration of highly skilled foreign national workers who are in demand in competing economies around the world. Highly skilled workers allow New Jersey companies to stay competitive by bringing the best and the brightest, add value to America’s economic infrastructure and assure the future stability of U.S. financial markets. Foreign countries, recognizing the value of these workers, often write immigration laws to attract them so additional incentives are needed to bring overseas talent to New Jersey and the United States. In this exclusive interview with COMMERCE, Nachman & Associates’ Managing Attorney David Nachman discusses the value of highly skilled foreign national labor to the economy, the competition for overseas talent and the challenges posed by immigration in the post-9/11 world. The H-1B season is about to begin, why not get up to speed on H-1B nonimmigrant visa issues?

LINK HERE FOR THE FULL STORY: http://www.cianj.org/pages/commerce_magazine/commerce-magazine.php?active_link=magazine

NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)

Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

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SEVERAL IMPORTANT IMMIGRATION PROGRAMS EXTENDED:

Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012.

On October 28th, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations Bill (P.L.111-83).

The new Law extends the non-minister religious worker (section 568), the “Conrad 30″ (section 568), the EB-5 visa (section 548), and the E-Verify (section 547) programs through September 30, 2012.

The Law also includes statutory authority for CIS to complete the processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

The Citizenship and Immigration Services Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with the U.S. Citizenship and Immigration Services, and proposes changes to mitigate those problems.

EXECUTIVE SUMMARY

In August and September 2009, the Ombudsman received complaints concerning H-1B cases with incorrectly denied Labor Condition Applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). LCA processing delays and errors at DOL, when coupled with USCIS’ current
H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions. Untimely H-1B petition filings lead to problems, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. USCIS has the authority to mitigate the impact upon these customers.

To mitigate the impact of LCA processing difficulties, the Ombudsman recommends that USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

BACKGROUND

Pursuant to the Immigration and Nationality Act (INA) § 212(n)(1), USCIS may not approve an
H-1B petition without a supporting certified LCA. However, the INA does not prohibit acceptance of the petition filing without the certified LCA. The applicable regulation,

Citizenship and Immigration Services Ombudsman Recommendation from the CIS Ombudsman to the Director, USCIS
October 23, 2009, Page 2 of 2

8 C.F.R. § 214.2(h)(4)(i)(B) (2008), states that “[b]efore filing a petition for H-1B classification …, the petitioner shall obtain a certification from the Department of Labor that it has filed a [L]abor [C]ondition [A]pplication …” [emphasis added]. Further, the June 12, 2009, revision to the “Instructions for Form I-129” state, in relevant part (see p. 3), that “[t]he petition must be filed by the U.S. employer and must be filed with: 1. Evidence that a [L]abor [C]ondition [A]pplication has been filed with the U.S. Department of Labor …” [emphasis added]. However, USCIS currently requires that petitioners include a certified LCA with their H-1B petition.

Stakeholders have detailed to the Ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009.

For example, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. Both DOL and USCIS indicated to the Ombudsman that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009 through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted). The Ombudsman understands that neither DOL nor USCIS can specify the exact number of incorrect LCA denials.

In 1992, the legacy Immigration and Naturalization Service (INS) responded to LCA processing problems occurring at DOL at that time by accepting H-1B filings accompanied by evidence of an LCA filing, and subsequently issuing an RFE to obtain the later-approved LCA. This approach permitted customers to meet filing requirements, preserve legal status, and avoid employment disruptions until DOL was able to address its underlying LCA processing problems.

ANALYSIS

Despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. Any costs to USCIS such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals. USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.
Given that Form I-129 instructions say a petitioner must provide evidence that an LCA has been filed with DOL, and that USCIS has previously accommodated petitioners in nearly the same circumstances, implementing these recommendations as a temporary solution is warranted.

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1 Under 20 C.F.R. § 655.740(a)(1) (2009), DOL allows itself up to seven working days to certify LCAs.

2 A March 5, 1992, memo from INS Assistant Commissioner Lawrence Weinig stated “petitions for H-1B nonimmigrants do not have to be accompanied by an approved [L]abor [C]ondition [A]pplication. Instead, petitions for H-1B nonimmigrants must now be accompanied by a certification from the Secretary of Labor that the petitioner has filed a [L]abor [C]ondition [A]pplication with the Department of Labor …. The certification will be a copy of the original ETA 9035 filed by the petitioner with the Department of Labor with the Department of Labor’s stamp affixed to the form.” The Ombudsman understands that USCIS reaffirmed this approach as recently as 2001.

“U.S. Immigration and Customs Enforcement (ICE) has a media initiative to inform the public about the horrors and the prevalence of human trafficking, which is modern-day slavery. As part of ICE’s continued efforts, the agency has unveiled an outdoor public service announcement campaign, “Hidden in Plain Sight,” to draw the American public’s attention to the plight of human-trafficking victims in the United States. The campaign message explains that human trafficking includes those who are sexually exploited or forced to work against their will. Posters, billboards and transit shelter signs were rolled out last month bearing the slogan “Hidden in Plan Sight.” They are displayed in Atlanta, Boston, Dallas, Detroit, Los Angeles, Miami, Philadelphia, Newark, New Orleans, New York, St Paul, San Antonio, San Francisco and Tampa. The campaign’s goal is to raise public awareness about the existence of human trafficking in communities nationwide, and asks mem bers of the public to take action if they encounter possible victims.” ICE, Nov. 2, 2009.

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).

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.