On July 31, 2008, Robert Menendez (D-NJ), introduced in Congress S. 3414 that was referred to Senate Committee. This Bill would recapture all employment and family-based green cards lost between 1992 and 2007 and would protect employment-based and family-based visas from being lost in the future.

This bill is basically identical to the recapture bill that passed mark-up on 8/1/08 in the House (HR 5882).

The Senate bill additionally proposes to extend the Conrad State 30 Physician Programs to June 1, 21013 (5 years) that provides each of the 50 states with 30 J-1 physician waivers each fiscal year; extend the E-Verify program for the electronic employment verification of new employees (formerly known as the Basic Pilot Program); extend the non-minister R-1 program to 10/01/2011 and requires DHS to issue final regulations to reduce fraud by 2010; requires DHS to provide payment to SSA so that E-Verify doesn’t interfere with services provided to seniors, people with disabilities and survivors. Lastly, it requires the GAO to report to Congress on the cases of Erroneous Tentative Non-confirmations when using E-Verify, how they are resolved and the effect that it has on employers, individuals and federal agencies.

Co-sponsors of the bill include: Senators Patty Murray (D-WA), Ted Kennedy (D-MA) and Maria Cantwell (WA).

These are very positive signs that the candle is lit to push forward piecemeal comprehensive immigration legislation with both chambers now engaged in the process.

For more information on the bills:
Read this from Washington Watch

The U.S. Immigration and Customs Enforcement (ICE) has announced the launch of a pilot program, Schedule Departure, which began this week in five cities.  The program ask fugitive aliens who have no criminal history and pose no threat to the community, the chance to come forward and turn themselves in, avoiding being detained, while they coordinate their removal with ICE.

Many naysayers to the announcement have said that this is another strange step in a drawn out process of how the U.S. deals with immigration.  And how they offer no true incentive for simply turning yourself in.

For more information on the ICE’s announcement:
Read this announcement from ICE
And this statement on the ‘strange’ announcement

It was earlier this year that the U.S. Court of Appeals for the Ninth Circuit held that the U.S. border officials DO NOT need “reasonable suspicion” in order to search information that is stored on electronic devices carried by travelers entering the United States.  These devices include, but are not limited to, a laptop computer, flash memory drive, external hard drive, mobile phone and handheld device.

The decision to allow border officials to conduct the searches is only legally binding on ports of entry under the jurisdiction of the Ninth Circuit (which includes California, among other western states), recent reports have indicated that many travelers are being asked to boot up their laptop computers so border officials can search through the hard drives on the computer.  Travelers also now must recognize that border officials may exercise their discretion to conduct searches at any U.S. port of entry, land or sea.

Some travelers have reported that their mobile phones, Blackberry’s and other handheld devices have also been searched – some just briefly looked at, but in some cases, officers have retained the device for several hours and download the content on the device.

The U.S. Department of Homeland Security claims that searches and seizures of electronic devices are justified by security concerns and in order to fight child pornography.  However, many business leaders, legal scholars and civil libertarians contend that these searches violate the Fourth Amendment and constitute a violation of travelers’ privacy rights.

For more information on laptop and other handheld device searches by border officials:
Read this article from Border & Customs Patrol

Both of these bills passed the sub-committee “mark-up” stage in the House Subcommittee last week – a 7:2 vote for H.R. 5924, and 8:1 for H.R. 5882.

This is an important first step forward that will be revisited by Congress following the 5-week “August Recess”. HR 5882 could recapture close to 500,000 green-cards that were lost due to bureaucratic delays for all employment-based categories which would moreover make them current. Family based categories would move forward considerably. HR 5924 would provide 20,000 green-cards per year to RNs and PTs, exempting from the quota dependent family members. We link to the bills below as well as information concerning how a bill becomes a law.

Make sure to sign up for our 8/13/08 teleconference on “Pending Legislation and Retrogression: Strategies and Solutions”. Sign up here!

• HR 5882
• HR 5924
• How a Bill becomes a Law

What will your company do if:

• The government notifies your company that it is to produce all of its I-9 forms and related documents for audit?
• The government notifies your company that it is to produce all of its H-1B public access files and related documents for audit?
• Your company receives a Social Security No-Match Letter?
• Your company is merging with or acquiring another company?

There is no need for panic if you have consulted with experienced legal counsel which has resulted in a strategy for responding to these events.  It is more important than ever to have such a strategy in place.

Increased government investigations and enforcement are driven by several factors.  A poor economy resulting in layoffs in the labor market always produces increased investigations and enforcement to protect the American labor market from the adverse effects of foreign labor.  Political pressure for more enforcement always increases in a poor economy.  The resulting press leads to demands from the public for increased enforcement against illegal immigration.  Finally, in an election year all politicians want to prove to the voters how tough they are on illegal immigration and protecting jobs for Americans.

I-9 Compliance:  Since 1986 the law has required that all new employees must present documents that prove their identification and right to work in the United States, and the company and the employee must complete a Form I-9.  Paperwork violations (mistakes or failure to complete the I-9) can very quickly escalate to fines of several thousands of dollars.  The fines for knowingly hiring or continuing to employ unauthorized workers are more severe.  Finally, a pattern or practice of knowingly hiring or continuing to employ unauthorized workers can lead to criminal charges.  In attempting to comply with the I-9 laws, the employer must guard against violating the anti-discrimination laws which could result in fines and back-pay.

H-1B Compliance:  Employers of H-1B professional workers are required to prepare and post an LCA (Labor Condition Application) regarding prevailing wages, etc.  In addition, such employers are required to keep a public access file containing actual and prevailing wage information, etc.  Failure to do so can result in civil monetary penalties, back wages and being prevented from using the H-1B program for at least 1 year.

Social Security No-Match Letters:  A Social Security No-Match Letter is a notice that the records of the Social Security office do not match with the information being reported by the employer to Social Security.  While the letter states that the letter, by itself, is not a basis for the employer to take any adverse action against the employee, the immigration enforcement authorities take the position that a failure to reasonably follow up could constitute constructive knowledge of an employee’s unauthorized status.  Handling such letters can be a very delicate situation.

Mergers and Acquisition Compliance:  Merger and acquisition transactions give rise to significant compliance issues for the acquiring or successor company.  In addition, the immigration status of the acquired employees may be affected by the transaction.

E-Verify:  E-Verify is an Internet-based system coordinated by the immigration and social security authorities which allows for electronic verification of the employment authorization of new employees.  Subject to some exceptions, it is still voluntary.  Federal contractors must use the system as must employers of certain F-1 students extending their optional practical training.  In addition, a growing number of states are requiring E-Verify.

As one can see from the preceding material, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing.  In order to effectively deal with these issues and avoid the very severe consequences for noncompliance, employers must develop a strategy and be prepared.  The most effective way to prepare is to develop a comprehensive compliance program customized to the employer’s specific needs.

Immigration Solutions provides telephonic and onsite I-9 training, consulting and document auditing, as well as employer compliance education and comprehensive program development. If you would like more information from us on this, please do not hesitate to contact us directly.

For more information on our services:
Read over our services
And read one of our past articles on Employer Compliance

Article Contributed By Thomas J. Joy, Esq.

To mention some good news for once, the Senate has just voted to pass the PEPFAR bill.  The President’s Emergency Plan for AIDS Relief bill was voted to pass with an 80-16 vote, and will repeal a 20-year policy banning HIV-positive immigrants and nonimmigrants from entering the U.S.  There are only 12 countries worldwide that have an anti-HIV/AIDS policy.

With the current immigration law, public health experts at the Health and Human Services Department make the decision on whether or not to grant a person with a communicable disease entrance into the United States.  This applies to any disease except HIV/AIDS, which is the only medical condition that has standard inadmissibility policy behind it.

Therefore, HIV-positive individuals are NOT eligible to become permanent residents.  This also applies to legal immigrants who become infected with HIV after arriving in the U.S.

Senators John Kerry (D-MA) and Gordon Smith (R-OR) spearheaded the effort to include the HIV immigration and travel ban as a provision to the PEPFAR bill.  In addition, the U.S. will commit $48 billion over the next five years to help foreign countries combat HIV/AIDS, malaria, and tuberculosis.

Senator Biden, who managed the bill, said that the bill would probably avoid a conference with the House and be sent to the President’s desk.

To read more details of the bill:
Read this from the United States Senate

Compete America, the largest coalition for employers for immigration reform, are asking Congress for the following:  To exempt students in STEM occupations from employment quotas; to abolish per country limitations, and to recapture employment based numbers from previous years. In a letter to Congress dated July 17, 2008, Compete America is asking for Congress to support three bills that will make necessary adjustments to the employment-based green card system.  The measures are H.R. 6039, H.R. 5921 and H.R. 5882, which should be enacted without delay, according to the letter.

The following is taken directly from the letter:

“America’s scientific and technological leadership is at a crossroads.  To remain the world leader in innovation, U.S. employers must have access to much-needed and sought-after highly educated talent – including scientists, researchers, teachers and medical professionals.  Foreign-born professionals make great contributions to the U.S. economy and create good, high-paying jobs for all Americans.U.S. employers rely on EB green cards to keep foreign-born talent living, working and innovating in America.  Yet, despite the critical importance of these visas, Congress has failed to address the well documented backlogs in the EB green card system that leave some foreign-born, highly educated professionals waiting over six to 10 years to receive a permanent resident visa.   

The three bills will address many shortcomings in the EB green card system. For example:  

• H.R. 6039, by exempting highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit, would help U.S. employers retain these talented individuals in the U.S. workforce.  For example, foreign nationals comprise half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities. 

• H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per country limits on EB green cards.

• H.R. 5882 will help to reduce visa backlogs by “recapturing” EB green cards from prior years that went unused due to government processing delays and making them available immediately to those who meet the requirements.”

For more information on the inquiry to Congress:
Read the letter from Compete America 

After an applicant passes the NCLEX-RN exam through the California Board of Nursing, a letter is sent to the applicant stating that a Social Security Number (SSN) is required before a permanent license is issued.

The letter from the California Board of Nursing also states that the SSN must be provided within a 3-year window or the applicant’s file will be considered abandoned and destroyed.

In the present climate of retrogression, many nurses are realizing that their 3-year window of opportunity to provide their SSN is approaching.  This is due to the fact that one simply cannot obtain a SSN under present immigration conditions.

We are grateful to Janet Smith, RN, BSN, NCLEX Coordinator/Adevia Health, for researching this urgent matter and sharing the information with us.  We know that our readership will find it as valuable as we have.

With a massive backlog in naturalization applications, and an estimated wait that is likely to take 15 to 18 months to attain citizenship, the U.S. Citizenship and Immigration Services are taking some unique tactics to help tackle the backlog of cases.

USCIS has begun an academy in Dallas that recruits and trains hundreds of new employees who will help tackle the agency’s backlog of cases.  For six week, men and women study topics such as logics, ethics, legal decision-making, discretion, immigration history and trends.  Thereafter, they will join the USCIS as adjudication officers, and begin the laborious process of overseeing naturalization applications.

USCIS reports that about 1.4 million people applied for naturalization in the fiscal year ending Sept. 30, 2007, almost double the number of petitions filed the previous year.  The core reason for the massive influx was because of a planned fee increase that took effect last summer and the upcoming presidential elections.

For more information on the new academy:

Read this article from the Mexia Daily News