Attempted terrorist attack on Northwest Air

The below link is from the TSA about travel in the wake of the attempted terrorist attack on Northwest Air over the holiday. Also, we wish to remind everyone that terrorist acts are exactly that . . . "terroristic". Please do not let restrictionist propaganda confuse "legal" immigration to the U.S. with the selfish, dehumanizing and malicious acts of the radical terrorists "out there".



LINK: http://www.tsa.gov/press/happenings/dec25_guidance.shtm

USCIS Reaches FY 2010 H-1B Cap

"U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. USCIS is hereby notifying the public that Dec. 21, 2009 is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010." USCIS, Dec. 22, 2009

Canadians seeking to place inquiry with US CIS

Earlier this month, U.S. Citizenship and Immigration Services (USCIS) announced the creation of a general inquiry e-mail box for customers in Canada. Currently Canadians cannot access the National Customer Service Center through the 1-800 number to ask about general immigration questions, so this e-mail box is good news for Canadians. Canadian customers may now inquire about general immigration information at USCIS.Canada@dhs.gov in addition to obtaining immigration information on the USCIS website (http://www.uscis.gov). The creation of this mailbox signifies a major step in USCIS’ outreach to Canadians since the dissolution of the Immigration and Naturalization Services (INS) Ottawa office in 2003.

To Read More, Click Here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=589250e99e975210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

Comprehensive Immigration Reform for America's Security and Prosperity" to be Introduced December 15 on Capitol Hill!

Immigration Reform is on its way!


http://blogs.suntimes.com/sweet/2009/12/rep_luis_gutierrez_renewing_pu.html

Will an accurate Census Report or and inaccurate Census Report bode better for proposed U.S. immigration reform?

http://www.tdn.com/articles/2009/12/06/breaking_news/doc4b1bf21ea00205537671
97.txt

Something to think about. This is an interesting and touchy issue!

EMPLOYERS NEED TO KNOW ABOUT THE DIFFERENT TYPES OF USCIS SITE VISITS.

At a November 19, 2009, program put on by the Department of Homeland Security, titled "2009 Government and Employers: Working Together to Ensure a Legal Workforce," Ronald Atkinson, Chief of Staff of USCIS' Fraud Detection and National Security (FDNS) office, explained the three types of site visits that are currently being conducted:

1. Risk Assessment Program fraud study. Applicable to any type of benefit program, including family and employment-based, this study is part of a joint program between USCIS and ICE. Applications and petitions are chosen at random, usually on a post-approval basis, for visits to help in designing profiles of potential fraud.

2. Targeted site visits. These visits take place where fraud is suspected, and consist of a visit to ask questions. Advance notice, including notice to counsel, is supposed to be provided.

3. Administrative site visits. These relate to religious worker and H-1B petitions. They generally are conducted by contractors who know nothing of immigration law. Religious worker visits are performed under the regulations for that category. For H-1B site visits, the contractors have been equipped with a set of specific questions, and all employers/beneficiaries should be asked pretty much the same questions, primarily reaching the issues of whether there's really an employer there, whether the employer knows it filed the petition, and whether the beneficiary is doing the work and receiving the wage indicated on the petition. H-1B visits are done on a post-adjudication basis, and are randomly selected. Each employer should receive only one such visit, but may receive different visits for different sites.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement priorities—specifically focusing on dangerous criminal aliens and employers who cultivate illegal workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy, ICE identified form I-9 audits as the most important administrative tool in building criminal cases and bringing employers into compliance with the law.



Should anyone receive an inspection notice, it is imperative that you contact an immigration attorney immediately to verify compliance.
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

BEWARE STRANGERS (FROM ICE) BEARING GIFTS FOR THE THANKSGIVING HOLIDAY.

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton today announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure—alerting business owners that ICE will audit their
hiring records to determine compliance with employment eligibility verification laws.

“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by
cultivating illegal workplaces,” said Assistant Secretary Morton. “We are increasing criminal and
civil enforcement of immigration-related employment laws and imposing smart, tough employer
sanctions to even the playing field for employers who play by the rules.”

The 1,000 businesses served with audit notices this week were selected for inspection as a result of
investigative leads and intelligence and because of the business’ connection to public safety and
national security—for example, privately owned critical infrastructure and key resources. The names
and locations of the businesses will not be released at this time due to the ongoing, law enforcement
sensitive nature of these audits.

Audits involve a comprehensive review of Form I-9s, which employers are required to complete and
retain for each individual hired in the United States. I-9 forms require employers to review and
record each individual’s identity and work eligibility document(s) and determine whether the
document(s) reasonably appear to be genuine and related to that specific individual.

Protecting employment opportunities for the nation’s lawful workforce and targeting employers who
knowingly employ an illegal workforce are major ICE priorities, for which ICE employs all
available civil and administrative tools, including audits. Audits may result in civil penalties and lay
the groundwork for criminal prosecution of employers who knowingly violate the law.

In April, DHS issued updated worksite enforcement guidance emphasizing ICE’s major enforcement
priorities—specifically focusing on dangerous criminal aliens and employers who cultivate illegal
workplaces by breaking the country’s laws and knowingly hiring illegal workers. In this strategy,
ICE identified form I-9 audits as the most important administrative tool in building criminal cases
and bringing employers into compliance with the law.

Should anyone receive an inspection notice, it is imperative that you contact an immigration attorney immediately to verify compliance. We believe that ICE has picked this week specifically because many people will be away on vacation and they will take company’s by surprise. BE PREPARED, BE READY, AND BE VIGILANT. THE ICE MEN COMETH!

ICE workplace audits

On 11/19/09, ICE Assistant Secretary John Morton announced the issuance of Notices of Inspection (NOIs) to 1,000 employers associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws. AILA Doc. No. 09111966.

Immigration Reform in the U.S.

This article (see link below) discusses the recognition for the need for Immigration Reform in the U.S. by none other than Janet Napolitano, the Head of the U.S. Department of Homeland Security. We hope that this initiative will take shape in Early-2010 but any sooner would certainly be welcome.
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/11/14/MNO91AK714.DTL&t
ype=politicshttp://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/11/14/MNO9
1AK714.DTL&type=politics
Nachman & Associates, P.C. is a Global Business Immigration Law Office located in NJ, NY and Canada. We handle nonimmigrant (temporary) work visas and PERM Labor Certification Application cases for businesses of all sizes. We also handle family-based immigration law matters including marriage to a foreign national cases. We can also assist with Removal and other immigration law proceedings.
We can be contacted for a consultation at 201-670-0006 (x100) or by e-mail at info@visaserve.com. Please feel free to visit us on the web at www.visaserve.com.

Don’t Be Caught Off-Guard: CIS H-1B Site Visits are in Full Swing.

For the past few months, the U.S. Department of Homeland Security, Citizenship and Immigration Services ("CIS") has conducted an investigation program aimed at visiting H-1B petitioner worksites throughout the U.S. These site visits began as part of the CIS’ goal to decrease the number of H-1B violations and instances of fraud reported by the H-1B Benefit Fraud & Compliance Assessment from CIS’ Office of Fraud Detection and National Security (“FDNS”), published this past September. According to the FDNS’ findings, as many as one in five H-1B applications were affected by either fraud or “technical violations” of the H-1B program.
Why should employers care? Any employer who sponsored a foreign national worker for an H-1B visa can be subject to an unannounced site visit. What this means is that an investigator can randomly show up at a worksite and demand to see a copy of the H-1B petition, interview the person who represented the company in connection with the H-1B as well as the H-1B employee or other employees presently on site. Any inconsistencies found can mean big trouble for employers.
FDNS has indicated that it does not need a subpoena in order to complete the site visit because USCIS regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However other sources say that employers are not required to give in to the investigators’ demands without a subpoena. What to do? Our office recommends that you always comply as much as possible with any investigative agency that shows up at your door. CIS has indicated that attorneys can be present during an inspection, but the investigator is not likely going to come back another day if the attorney is not available on the day of the unscheduled visit. Attorneys may be present via telephone in these circumstances.
Some common questions that have been raised by employers include: “how are companies selected to be investigated,” “if I am visited, should I be concerned,” “what type of violations are the investigators looking for,” and “how can I prepare for a site visit from a CIS/FDNS investigator?”
To address these issues in order, firstly any employer who has filed an H-1B petition can be subject to a site visit. While CIS claims the employers are chosen at random, close to 40,000 employers’ names have been selected for site visits. Some factors that may have been taken into consideration when selecting these 40,000 employers include: companies with less than 15 employees; companies with less than $10 million in sales; companies less than 10 years old; accounting, HR, business analyst, sales and advertising positions; and petitions where the beneficiary merely had a bachelor’s degree, not an advanced degree.
If your company is visited and your records are in order, you have nothing to worry about. Generally speaking employers are aware of inconsistencies before any investigative agency may catch wind of it. That being said, if the investigators uncover any inconsistencies or instances of fraud, the case may be referred to U.S. Immigration and Customs Enforcement (ICE), or the Department of Labor (DOL) for further investigation depending on the offense. This could mean there will be monetary, and if egregious offenses, possible criminal penalties for the employer.
The objective of the unannounced on-site visits is clear: to detect fraud and abuses of the visa program. According to USCIS, the offenses range from technical violations to outright fraud, with the most common violation being the non- payment of a prevailing wage to the H-1B beneficiary. More specifically, the investigators may be looking for the following types of violations: job location not listed on the H-1B petition and/or LCA; H-1B worker not receiving the required wage; fraudulent H-1B documents or H-1B worker credentials; non-existent business or office location; job duties significantly different from those listed on H-1B petition/LCA; misrepresentation of H-1B status by the H-1B worker (e.g., had been terminated from previous H-1B position prior to new employer H-1B being filed); and H-1B worker paid the $1500 ACWIA fee.
How can you prepare yourself and your company for a possible site visit? Step one is to ensure that you have Public Access Files (PAF) for each H-1B worker, and that the PAF documents are accurate and up to date. In general, it is a good idea to review and audit your H-1B/LCA records to make sure everything is in order and all information is readily available. Designate a specific individual at each H-1B worker location to meet the investigator should he/she arrive. Prepare a quick list of facts about the company and also a listing of H-1B workers, work locations, title and salary information so you don’t need to search frantically for this information while the investigator is there. If you are not sure what a PAF is, or if you’d like to have your documents reviewed by legal counsel, you may contact our office at the number or e-mail below.
About Nachman & Associates, P.C.
The Business and Corporate Immigration Attorneys at our Firm have focused their practice, for over a decade and a half, on assisting companies that employ highly-skilled foreign nationals in visa applications. We serve our clients' business objectives. A natural extension of that service is counsel that helps the client to avoid the disruption and expense of ICE audits, recent CIS actions and the consequences of being found to be out of compliance with any number of regulations related to immigration and employment.
Our Business Immigration Attorneys can organize and conduct a review of records, assist in establishing procedures to reduce exposure to liability, and participate in training of managers to comply with the numerous requirements imposed by the US Department of Homeland Security.
Contact us for more information: Website: http://www.visaserve.com
Phone: 201-670-0006
E-mail: info@visaserve.com

USCIS Update: Temporary Acceptance of H-1B Petitions Without Department of Labor Certified Labor Condition Applications (LCAs)

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is announcing a 120-day period in which it will temporarily accept H-1B petitions filed without Labor Condition Applications (LCAs) that have been certified by the Department of Labor (DOL).
USCIS has received requests from the public to accept H-1B petition filings that include LCAs that have been filed with DOL but that DOL has not yet certified. Processing delays arising from DOL’s recently implemented “iCERT” system have resulted in increased processing times (beyond 7 days) for certain LCA certifications. Affected employers and beneficiaries have reported being negatively impacted by DOL’s increased processing times which currently delays their ability to file H-1B petitions with USCIS. DOL expects that the current increase in LCA processing times is temporary.
As a public accommodation, USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010. However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.
Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.

CIS to Temporarily Accept H-1B Filing Absent Certified LCA

On November 11, 2009, USCIS released a November 5, 2009, announcement indicating that it will temporarily accept H-1B petitions filed without Labor Condition Applications that have been certified by the Department of Labor.

USCIS Launches Informational Video on the SAVE Program

On November 6, 2009, CIS posted an informational video on its website that provides an overview of the agency's Systematic Alien Verification for Entitlements (SAVE) program. The new video describes the immigration status verification process and explains how federal, state, and local benefit-granting agencies can apply to participate in the program.

Issues at US Consulates abroad when visa processing.

One of the most frustrating aspects of immigration practice is when the U.S. Consulate Office places a Visa Application under so-called "Administrative Review". There could be any number of reasons that a case falls under Administrative Review. For example, a case may present issues and the Officer feels that the Application/Petition needs to be sent back to CIS for clarification.This process is called a "Notice of Intent to Revoke".
Another reason may be because the area of occupational endeavor of the visa applicant is listed on the Technical Alert List ("TAL"). Another reason for the "hold" may be that the applicant is from a country that is recognized for condoning the acts of terrorism. As a result, the case may be sent to the U.S. Department of State ("DOS") for an Advisory Opinion. Such Advisory Opinions are termed "Visa Eagles" or "Visa Donkeys." Often these cases can take many months to process.
Lately, our offices have been called upon to assist individuals who have received Application denials or information requests at U.S. Consulate Offices abroad. The way that these matters are handled depends upon several factors including (but not limited to): (1) the Nationality of the Applicant; (2) the Consulate where the Application was made; (3) the nature of the visa classification requested; (4) the cue for Advisory Opinions at the DOS.
If you or any member of your staff requires assistance with Consulate Processing at the U.S. Consulate abroad or in connection with any post-9/11 registration immigration program (see below), please feel free to contact us at info@visaserve.com.

H-1B visa applications lowest since 2003:

"More than six months after the federal government began accepting petitions for work visas popular with Silicon Valley companies, thousands of spots remain open, a reflection of the nation's high unemployment and the political pressure to hire citizens, experts say."
Mercury News, Nov. 1, 2009.

Nachman & Associates, P.C. - Domestic and International Business Immigration Law Events.

TOKYO, JAPAN: U.S. Business Immigration Law Seminar.

Topics To Be Discussed by David Nachman, Esq, and David Sindell, Esq. at this FREE Seminar will include, but not be limited to: U.S. Business Immigration and Nationality Law and Family-based Immigration Options. Investor Visas, H-1B Visas, Intracompany Transferees.

This FREE event is being Co-Sponsored by: Nachman & Associates, P.C. (The VISASERVE TEAM) and The Sindell Law Offices.

DATE: September 30th, 2009
TIME: 2:00 pm - 5:00 pm (4:00 pm - 5:00 pm Q&A)
LOCATION: ANA Intercontinental Hotel Tokyo - RUMINASU Room, 1-12-33 Akasaka Minato-ku Tokyo, Japan

Send an e-mail to info@visaserve.com to register for this event.


RESTAURANTS IN THE U.S: Establishing a U.S. Restaurant - Seminar in Japan.

At this FREE seminar David Nachman, Esq. and David Sindell, Esq. will spend some time discussing formal and informal legal and non-legal issues involved in launching a restaurant business in the U.S. The Seminar will include how to hire staff, register the business and will also provide some practical pointers about how to run a restaurant business in the United States.

DATE: October 1st, 2009
TIME: 2:00 pm-4:00 pm
LOCATION: Tokyo, Japan TBA

Send an e-mail to info@visaserve.com to register for this event.


BANGKOK, THAILAND: U.S. Business and Marriage Immigration Law Seminar.

David Nachman, Esq. and David Sindell, Esq. will be conducting the 2nd in an ongoing series of Seminars in Bangkok, Thailand. Topics to be Discussed at this Seminar will Include: U.S.
Business Immigration and Nationality Laws and Family-based Immigration Options. Investor Visas, H- 1B Visas, Intracompany Transferees.

This Event is being Co-Sponsored by: Nachman & Associates, P.C. (The VISASERVE Team) and The Sindell Law Offices.

DATE: October 5th, 2009
TIME: 9:30 am - 12:30 pm
LOCATION: Nari Hotel, Ayudhya Room, Bangkok, Thailand

Send an e-mail to info@visaserve.com to register for this event.


WALK FOR THE CAUSE: Avon Walk to End Breast Cancer in New York City.

THE VISASERVE TEAM will be among the thousands of people dedicating their weekend to walking as part of the Avon Walk for Breast Cancer. Together, we'll spend countless hours, fundraising, and preparing for the event. We are very excited about being a part of this event as we know it will make a real difference to the millions of people affected by breast cancer. We have raised 1/2 of the money we have pledged to raise . . . We can always use your
support!

DATE: October 10th and 11th, 2009
LOCATION: New York City

Click Here to Donate or to Join the VISASERVE Team . . . - http://rs6.net/tn.jsp?t=w54cn4cab.0.0.lpglyxn6.0&ts=S0407&p=http%3A%2F%2Finfo.avonfoundation.org%2Fsite%2FTR%2FWalk%2FNewYork%3Fpx%3D4927214%26pg%3Dpersonal%26fr_id%3D1850


EMPLOYMENT VERIFICATION UPDATE: E-Verify/I-9 Training for Employers.

This Program will discuss topics such as: updates to the Form I-9, CIS' E-Verify Program, ICE's IMAGE Program, How to Handle Social Security No Match Issues, Anti-Discrimination Provisions of IRCA, and Helpful Tips for Employers.

The Event is being Hosted by: The Employer's Association of New Jersey ("EANJ").

DATE: October 19th, 2009
TIME: 9:00 am - 12:00 pm
LOCATION: Jewish Family Services of Atlantic & Cape May Counties, 607 North Jerome Avenue Margate, NJ

Send an e-mail to info@visaserve.com to register for this event.


E-VERIFY AND ICE UPDATE: E-Verify, I-9's, Social Security No-Match, Nationality Discrimination and the Dynamic Employment Verification Landscape.

At this Seminar David Nachman, Esq. and Victoria Donoghue, Esq. (and Representatives of The Department of Homeland Security) will discuss topics such as: updates to the Form I-9, CIS' E-Verify Program, ICE's IMAGE Program, How to Handle Social Security No Match Issues, Anti-Discrimination Provisions of IRCA, and Helpful Tips for Employers.

This Event is being Hosted by: Garden State Council - Society of Human Resources
Management.

DATE: October 26th, 2009
TIME: 8:00 am - 9:00 am
LOCATION: Ocean Place Resort and Spa, Long Branch, New Jersey

Send an e-mail to info@visaserve.com to register for this event.


IMMIGRATION COMPLIANCE FOR EMPLOYERS: Compliance and Visa Seminar for Japanese Companies.

This Event is being co-sponsored by: Sindell Law Offices and QUICK USA. David Nachman, Esq.
will be discussing I-9 Forms and compliance issues.

DATE: October 28th, 2009
TIME: 1:30 pm - 4:30 pm
LOCATION: The Nippon Club, New York City

Send an e-mail to info@visaserve.com to register for this event.

District Court Upholds Mandatory E-Verify Rule for Federal Contractors and Attorneys Seek Emergency Injunction on Federal Contractor E-Verify Rule.

This is a reminder for federal contractors and subcontractors that effective September 8th, 2009, they will be required to use the E-Verify system to verify their employees' eligibility to work in the United States if their contract includes a Federal Acquisition Regulation ("FAR") E-Verify Clause. In July, the U.S. Department of Homeland Security ("DHS") Secretary Janet Napolitano strengthened employment eligibility verification by announcing the Administration's support for the regulation that will award federal contracts only to employers who use E-Verify to verify employee work authorization.

In late August, The United States District Court for the District of Maryland, Southern Division, granted Defendants' cross- motion for summary judgment in Chamber of Commerce of the USA v. Napolitano, a case challenging the mandatory E-Verify rule for federal contractors.

On September 1st, 2009, Counsel in Chamber of Commerce of the U.S.A. et. al. v. Napolitano (S.D.MD, August 26, 2009) sought an emergency injunction seeking yet another delay against the district court's decision regarding the implementation of the Federal Contractor E-Verify Rule.

More Information About E-Verify and Federal Contractors Obligations:

Under these new guidelines, Employment Eligibility Verification will extend the use of the E-Verify system to covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act Funds. Applicable federal contracts awarded and solicitations issued after September 8th, 2009 will include a clause requiring government contractors to use the E-Verify system.

Companies awarded a contract with the E-Verify clause on or after September 8th will be required to enroll in E-Verify within 30 days of the contract award date. E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not (and existing employees directly working on these contracts) are legally authorized to work in the United States.

More than 145,000 participating employers at nearly 550,000 worksites nationwide currently use E-Verify to electronically verify their workers' employment eligibility. Since October 1st, 2008, more than 7.6 million employment verification queries have been run through the E-Verify system and approximately 97 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

More information on the program is available on the "E-Verify" Web site link (www.dhs.gov/e-verify) and support is available by calling toll free (888) 464-4218.

ICE NEWS-Krispy Kreme fined after I-9 audit

CINCINNATI - U.S. Immigration and Customs Enforcement (ICE) and the Butler County Sheriff's Office announced today a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws.
ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff's Office which revealed the company had employed dozens of illegal aliens at one of their doughnut factories in Cincinnati.
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.
"Employers have a responsibility to hire men and women who are authorized to work in the United States and fines are an important component of ensuring their compliance," said Brian Moskowitz, special agent in charge of the ICE Office of Investigations in Michigan and Ohio. "ICE will use the legal tools at its disposal to address those who neglect or falter in their corporate responsibilities."
The audit also revealed violations to the Immigration and Nationality Act. In September 2007, ICE issued a notice of Intent to Fine. The fine was settled Friday.
As part of the settlement, the company has taken measures to revise its immigration compliance program, and has agreed to begin implementing new procedures to prevent future violations of federal immigration laws.
In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. Last week, ICE announced as part of this initiative, 652 businesses around the country would be audited to determine their compliance.
As we have informed our clients in the past and on an ongoing basis, the implementation and use of an immigration compliance plan is of great assistance in negotiating and mitigation of fines with ICE. It is my guess that the fine of $40,000 was very low because the company took an aggressive approach to compliance and showed good faith to ICE in implementing this plan. Stay tuned for more stories as I-9 audits become more commonplace.

652 businesses nationwide being served with audit notices.

U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations.

Immigration Reform!

Is it a false start (again) or are we really off to the races? Senator Schumer seems to have announced the starting point of this year's immigration reform debate. In an article in the Washington Post, Senator Schumer has outlined what he sees as the template for immigration reform. Spencer Hsu, of Washington Post reports that Schumer sees immigration reform:
"requiring that an estimated 12 million illegal immigrants register with the government and "submit to a rigorous process to convert to legal status" or face immediate deportation. [The][l]egislation must also create mechanisms to attract high-skilled immigrants, control the flow of low-skilled immigrants and protect native-born workers."
Senator Schumer is calling for a National ID card (something to displease everyone):
"Schumer's proposal for a national 'biometric' identification system to verify work documents -- based on fingerprints, iris scans or digital photographs -- stems from a key weakness of past immigration overhaul efforts . . . " and omits a temporary worker visa program.
These issues were key points for the overall package of immigration reform that were discussed in a meeting at the White House between President Obama and numerous key Senators and Congressman the other day. We will continue to keep our readership apprised of any new developments in the immigration reform arena. For more information, please feel free to e-mail us at info@visaserve.co m. You can also call us at 201- 670-0006 (x107).

Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

U.S. Citizenship and Immigration Services (USCIS) announced today that the Employment Eligibility Verification form I-9 (Rev. 02/02/09) currently on the USCIS Web site will continue to be valid for use beyond June 30, 2009.
USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.
USCIS will update Form I-9 when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

H-1B visas are still available!

As of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

FREE BUSINESS IMMIGRATION LAW PROGRAM:

Employment Verification Overview and Update Workshop with the Government Sponsored by: U.S. Department of Justice, Nachman & Associates, P.C., Compensation Solutions and the FDU Paralegal Studies Program Where: Fairleigh Dickinson University, Teaneck NJ Campus, Rutherford Room When: April 24, 2009, 10am – 4pm (FREE lunch included). Topics to be discussed:Overview of Employment Verification Procedures;History of the Immigration Reform and Control Act; Hired! Work Authorized? – Completing the I-9 Form; Recent Updates and Changes to the I-9 Form and M-274; Mistakes That Can Really Cost Employers; I-9 Audits and Government Investigations; Social Security Mismatch Issues; USCIS' E-Verify Program;ICE's IMAGE Program; Anti-Discrimination Provisions Speakers:Richard Crespo., U.S. Dept. of Justice, Office of Special Counsel; Victoria Donoghue, Esq. , Nachman & Associates, P.C.; Corrado Gigante, U.S. Equal Employment Opportunity Commission; David H. Nachman, Esq., Nachman & Associates, P.C.; Alan Janda, U.S. Immigration and Customs Enforcement; Cornelius Wyatt, U.S. Citizenship and Immigration Services Contact Nachman & Associates for more information and to register: info@visaserve.com or 201-670-0006 x 110 or x107

On February 9, 2009, the US Department of Labor held a “Public Briefing on Using the Redesigned Labor Certification Forms” in Baltimore, Maryland.

The purpose of the briefing was to educate stakeholders on the use of the redesigned ETA 9035 (LCA) and ETA 9089 (PERM). At the briefing, the DOL emphasized that the changes made to the forms are simply changes in the way data is collected; they do not constitute changes in policy.

The DOL announced that there will now be a new OFLC Visa portal know as iCERT System for both LCAs and PERM applications. On April 15, 2009, OFLC will begin receiving new LCA forms for processing through iCERT; on July 1 the same will be true for the new PERM form. In the case of both forms, there will be a 30 day transition period after the “go live” date; during this time employers can still file using the old system, and can get ready for the new system by creating new iCERT accounts and subaccounts and eliminating old T cases (in the case of PERM).

The biggest advantage of the new system is that it will permit users to track the status of applications across visa programs through a single visa account. It will also “pre-populate” certain aspects of the forms related to information on the particular employer and foreign national, thereby saving time.

Numerous changes were made to both forms. These changes can be reviewed in the attached material provided by the DOL at the briefing. Below is a list of a few highlights with respect to each form:

PERM Form

1) The space for the foreign worker’s name has now been moved to the top of the form. Completing this field will pre-populate other parts of the form.
2) Additional work location options have been added and there is “open space” to elaborate on the work location.
3) Space has been added so that the employer can explain the business necessity for a particular job requirement.

LCA Form

1) It will take up to 7 days to receive a response; LCAs will no longer be approved instantaneously. This change was made so that the DOL would be more likely to detect fraudulent submissions.

Economic Downturn: Immigration Issues for Layoffs, Terminations, Mergers, Acquisitions, Restructurings and How These Impact Foreign National Workers.

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.

FREE Live Webinar

FREE Live WebinarWhere: Link here - Register anytime . . .

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Date: February 26, 2009Time: 12:00 pm - 1:00 pm
Topics Discussed: H-1B’s: Practical Advice for EmployersDescription:This program will provide information for employers regarding H-1B visas including what to do if there are gaps in employment eligibility, extending Employment Authorization Documents under the OPT STEM Program, and alternatives to the H-1B visa. There are many nuances in the preparation and filing of the H-1B nonimmigrant process that need to be observed or it can be a minefield for the unsuspecting employer.

Speaker: Victoria A. Donoghue, Esq., Nachman & Associates, P.C.For more information, please contact Nachman & Associates, P.C. at info@visaserve.com or 201-670-0006 ext. 110.

How to Win the War When Working With Wal-Mart:

Americans across the country are familiar with Wal-Mart for their “roll-back” prices and friendly service. What most people don’t know is that, after their immigration scandals in 2001 and 2003, Wal-Mart has lead the country in enforcing employer compliance with requirements of the Immigration Reform and Control Act of 1986 (“IRCA”). Since paying a record-setting $11 million to the United States Department of Homeland Security, Immigration and Customs Enforcement Division (“ICE”), Wal-Mart has become the reluctant leader in employer compliance programs. As anyone trying to sign a contract with Wal-Mart will tell you, it’s no walk in the park to meet their strict demands, but it is the way of the future for employment verification procedures.
By way of history, in 2001, 100 illegal immigrant janitors were arrested at Wal-Mart stores in Pennsylvania, Ohio, Missouri and New York, and an additional 245 were arrested in October 2003 at 60 stores across 21 states. The allegation that Wal-Mart knew the janitors were illegal was denied by Wal-Mart’s top executives; nevertheless they admitted that they should have been keeping a more watchful eye over what their sub-contractors were doing. In a statement from Washington, federal officials announced that 12 janitorial contractors that worked for Wal-Mart had agreed to forfeit $4 million to the government and to plead guilty to criminal charges of employing illegal immigrants. The workers came from nearly 20 countries, including Mexico, Brazil, the Czech Republic, China, Poland and Russia.
As part of the $11 million settlement, Wal-Mart was permanently barred from hiring illegal immigrants and was ordered to establish a mechanism to make sure that its contractors "are taking reasonable steps to comply with immigration laws" within 18 months from the settlement date. Wal-Mart has since pledged to train all of its store managers to avoid “knowingly hiring” or “continuing to employ” illegal immigrant workers. Wal-Mart also agreed to continue cooperating with federal officials investigating its contractors. It’s no surprise that the regulations Wal-Mart has since built into their sub-contractor agreements are very rigid.

If you’re unfortunate enough to have seen the addendums to the Wal-Mart contracts, you are aware that there are stipulations which require all sub-contractors and sub-sub-contractors to follow the ICE “10 Best Practices for Employers”, which is a component of ICE’s IMAGE (“Ice Mutual Agreement between Government and Employers”) Program. Such practices include registering with the E-Verify Program, conducting training programs for all staff related to I-9 compliance, annual internal and third party I-9 audits, implementing an internal tip line, and full cooperation with government officials from the Department of Homeland Security. Not only are these required for the general contractor, but also for all sub-contractors and sub-sub-contractors. Needless to say, it has become burdensome for many small employers who wish to partner with a company such as Wal-Mart.

Nachman & Associates, P.C. is a Global Immigration Law Firm that has successfully helped companies become compliant with the regulations pushed down by Wal-Mart. In fact, other large employers such as Verizon have also been adopting the Wal-Mart compliance plan and requiring it for their own contractors, sub-contractors and sub-sub-contractors. In this era of compliance, it is important that employers can not only be in compliance with the law (as it will most likely only get tougher on violators), but also be able to handle the demands of both the government and large corporations who are pushing down these mandates. As Managing Attorney David H. Nachman says, “when we look into the crystal ball, we can see what’s coming down the pike and it means that employers need to be more vigilant.”

Mr. Nachman and his staff have been training employers about proper employment verification procedures for over a decade and most recently, pursuant to a federal training grant from the US Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), the Nachman & Associates team has been traveling across the tri-state area, and across the country via webinar, to help employers overcome the confusion in this “age of enforcement.” To contact Nachman & Associates for more information on compliance programs or to attend or schedule free training on employment verification procedures, anti-discrimination, E-Verify and IMAGE, please feel free to visit their website www.visaserve.com.

IMMIGRATION-RELATED AUDITS: WHAT EMPLOYERS NEED TO KNOW.

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 in Canada (and having corresponding offices in the 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. and the world on a full array of immigration law issues. Visit us at http://www.visaservecom%20.com/ .
E-mail to us with any questions at info@visaserve.com