1. Challenges: Quotas, Delays, and Enforcement
Immigration
Challenges: Quotas, Delays, and Enforcement
Annual Seminar – April 10, 2008
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York
1800 JFK Blvd., 17th Floor 317 Madison Ave. Suite 1518
Philadelphia, PA New York, NY

2. H. Ronald Klasko, Esq.
Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 25 years.
Ron is a former National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. He is a past Chair of AILA’s Department of Labor National Liaison Committee, its Task Force on H and L Visas and Business Immigration Committee. Mr. Klasko is one of only two practicing lawyers to receive the American Immigration Lawyers Association Founders Award, bestowed upon the individual who has had the most positive impact on immigration law.
Ron has been chosen as one of twelve top tier immigration lawyers in the U.S. by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 edition selected Ron as the “most highly regarded” business immigration lawyer in the world. He is a frequent author and lecturer on business-related immigration topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.
Ron is a graduate of the University of Pennsylvania School of Law.

3. Richard R. Rulon, Esq.
Rich Rulon has been practicing immigration law for more than 30 years. Rich is a member of the American Immigration Lawyers Association (AILA), is a former Chair of AILA’s Philadelphia Chapter, has served on the Board of Governors of AILA and the Immigration Reform Committee. He has also served on the Board of Trustees of the American Immigration Law Foundation (AILF) including six years as Chairman and was the recipient of AILF’s 2005 Honorary Fellow Award for lifelong service to the field of immigration and nationality law.
Rich has been a lecturer at seminars on immigration law subjects and at AILA Annual Conferences; has authored numerous articles on immigration law topics and has played and continues to play an active role in helping to shape immigration reform legislation.
Rich was selected for inclusion in The Best Lawyers in America and also as a “Pennsylvania Super Lawyer.”
Rich is a graduate of the University of Pennsylvania Law School.

4. William A. Stock, Esq.
William A. Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for nearly 15 years.
Bill is featured in The Chambers Global Guide, The Best Lawyers in America, and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, and in 2000 he received AILA’s Joseph Minsky Award, given to the lawyer under age 35 who has made the most outstanding contributions to the field of immigration law.
Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and currently is an Adjunct Faculty Member at Villanova University School of Law.

5. Suzanne B. Seltzer, Esq.
Suzanne B. Seltzer is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, and manages the New York office. Suzanne is well known for her representation of universities, hospitals and research institutions and their medical and research personnel in obtaining extraordinary ability and national interest waiver immigrant petitions, O-1 nonimmigrant visas, and waivers of the two-year home country residence requirement. 
Suzanne is a member of the National Coalition for Access to Healthcare, Co-Chair of AILA’s NY District Director Liaison Committee, and Co-Chair of the NYC Anti-Trafficking Network’s legal subcommittee. Suzanne is a frequent speaker on immigration options available to international medical graduates and research scientists, and is the author of several articles.
Suzanne was honored with the Cornerstone Award by the Lawyers Alliance for New York in recognition of her outstanding contributions to pro bono work on behalf of non-profit agencies, and the Samuel E. Klein Pro Bono Award for her work on behalf of victims of human trafficking.
Suzanne is named in The Best Lawyers in America, Super Lawyers, and holds the highest rating of “AV” (LexisNexis Martindale-Hubbell).
Suzanne obtained her JD from Georgetown University Law Center.

6. Elise A. Fialkowski, Esq.
Elise Fialkowski has practiced immigration law for more than 14 years and is a Partner at Klasko, Rulon, Stock & Seltzer, LLP, with offices in Philadelphia and New York. Elise regularly assists U.S. and international corporate clients who seek to hire or transfer foreign employees as well as foreign individuals seeking employment in the United States as health care professionals, executives, managers, and scientists.
Elise has particular expertise in advising employers with regard to compliance with the Immigration Reform and Control Act including I-9 Employment Eligibility verification and worksite enforcement issues.  A member of the American Immigration Lawyers Association, Elise serves on the Executive Committee of its Philadelphia Chapter.
A Phi Beta Kappa graduate of the University of North Carolina at Chapel Hill, (B.A.1987), Elise received her law degree from the Villanova University School of Law (J.D., magna cum laude, 1991).

7. Theodore J. Murphy, Esq.
Theodore J. Murphy (Ted) serves as counsel to Klasko, Rulon, Stock & Seltzer, LLP and has been involved with immigration for the past 14 years - over a decade with ICE and the former INS. 
As one of the government's most experienced attorneys, Ted represented the Agency in all matters before the Immigration Courts and Board of Immigration Appeals, handling criminal, national security, fraud and employer sanction cases.  Ted has served as a Special Assistant United States Attorney and as an Adjunct Professor of Law at Temple University Beasley School of Law. 
In addition, he is a veteran of the United States Army's 82nd Airborne Division. Ted received his undergraduate degree at Georgetown University (B.A. 1983) and his Law Degree (J.D. 1994) and Masters of Law (International Law) (LL.M. 1997) from Temple University.

8. Immigration Challenges: Quotas, Delays, and Enforcement Agenda
Introduction
Legislative and Regulatory Update
Trainees
Labor Certification Update
Upgrading to a Higher Preference Category

9. Immigration Challenges: Quotas, Delays, and Enforcement Agenda
(cont’d)
Advising the Eternal Adjustment Applicant
Immigration Consequences of Criminal Activities
Dealing with Government Adjudication Delays
Worksite Enforcement
Questions & Answers

10. Legislative and Regulatory Update
Richard R. Rulon, Esq.

11. Prospects for Comprehensive Immigration Reform (CIR) in 2008
Very unlikely
Piecemeal legislation possible on enforcement and on essential and high-skilled workers

12. Enforcement Legislation
House
SAVE Act being pressed in House
Use of E-Verify system by all employers within 4 years of enactment
Dramatically expands SSA “no match letter” program
Directs increased resources to border and interior enforcement

13. Enforcement Legislation
(cont’d)
Senate
Bills have been introduced by Republicans to:
Create mandatory minimum prison sentences for FNs caught entering the US illegally
Require all employers to use electronic employment verification system and terminate workers whose work eligibility cannot be verified

14. Enforcement Legislation
(cont’d)
Senate
Withhold Foreign Aid for countries that deny or delay the acceptance of their nationals who have been ordered removed from the U.S. and to prohibit the issuance of visas for nationals of those countries

15. Employment Relief Legislation
House
Rep. Smith (R-TX) introduced H.R which would increase the numerical limitation with respect to H-1Bs for fiscal years 2008 and 2009
Rep. Giffords (D-AZ) introduced H.R which would increase the numerical limitation on H-1Bs and includes new protections for U.S. workers

16. Employment Relief Legislation
(cont’d)
House
Rep. Kennedy (D-RI) introduced H.R which would exempt from numerical limitations any alien who has received a Ph.D. from an institution of higher education within the 3-year period preceding such alien’s petition for special immigrant status

17. Employment Relief Legislation
(cont’d)
Senate
No employment relief legislation introduced yet (other than the SKIL Bill which was re-introduced last year and is still pending)

18. Employment Relief Legislation
(cont’d)
Prospects for passage
Not very likely unless impacted employers turn up the heat by writing, calling and meeting with their Members of Congress. Some possibility of H-1B and H-2B relief coupled with some version of SAVE Act making employment verification using E-Verify mandatory

19. Prospects for CIR Legislation in 2009
Presidential Candidates
All three favor some form of CIR
Congress
If both Houses remain in control of Democrats, CIR legislation is possible if actively supported by new President

20. Significant Regulations
DHS proposes to repromulgate without change the “No Match” Regulation issued in August 2007
“No Match” letter can be used as evidence that employer “knowingly” hired an unauthorized worker if data mismatch not resolved

21. Significant Regulations
(cont’d)
New Interim OPT regulation issued 4/4/08:
Students with degrees in science, technology, engineering and mathematics may apply to extend OPT by additional 17 months if their employers are participating in E-Verify
Any student on OPT seeking a change of status to H-1B will receive automatic extension of their status until H-1B status begins on 10/1/08 or H-1B application is denied

22. The BAD News for 2008 Increased employer sanctions
Expanded deportability
Continuing visa backlogs
Little, if any, meaningful relief for high tech and essential workers

23. Trainees
Elise A. Fialkowski, Esq.

24. F-1 Optional Practical Training: What is it
All Students: 12 months OPT – “Optional” When and how to take it (Full or Part time, Pre- or Post Completion)
“STEM” Students: Additional 17 months
May Be Full Time After Coursework Completed
Requires Recommendation of School and USCIS-issued Employment Authorization (EAD)

25. F-1 Optional Practical Training: New Requirements
All Students in OPT:
Unemployment during 12 months of OPT may not exceed 90 days in aggregate
Must report changes in employment status and address to school for entry into SEVIS
Students in 17-month “STEM Extension”
Unemployment during 29 months of OPT may not exceed 120 days in aggregate
Employer must agree to notify school of termination
Student must make “validation reports” to school every 6 months for entry into SEVIS

26. F-1 Optional Practical Training: “Cap Gap” Prevention
Covers All Students in OPT and valid F-1 status as of 4/1 whose petitions are selected in the “H-1B lottery” if a Change of Status was requested
Grants Automatic Employment Authorization during the “Cap Gap” (end of EAD to start of H-1B)
Does not require degree in STEM field or Employer Participating in E-Verify

27. F-1 Optional Practical Training: New “STEM Extension”
Student must be in first 12 months of OPT, may be approved for 17 months further OPT (for 29 months of OPT, or up to 35 months when eligible for “cap gap” protection)
Student must have earned a bachelor’s, master’s or doctoral degree in a designated Science, Technology, Engineering or Mathematics (“STEM”) field

28. F-1 Optional Practical Training: New “STEM Extension”
(cont’d)
Must be based on specific job offer, in student’s specific field, with new recommendation from DSO
Must apply for new EAD, but grants automatic Employment Authorization if timely filed (end of EAD to start of new EAD)
Employer must be Participating in E-Verify

29. B-1 Training Visa Training not available abroad
Training is to benefit foreign national’s career abroad
No productive employment
Source of salary--compensation abroad
Limited time/prepare alien for POE

30. J-1 Exchange Visitor
Program sponsor/ skills list / two year return residence requirement
6/19/07 Rule Revised Intern and Trainee reqs.
Intern: (1) current enrollment in post-secondary institution outside the US OR (2) Graduation w/i last 12 months from post secondary institution outside the US
Trainee: (1) a degree or prof. certificate from an academic institution outside of the US plus one year of non-US work experience related to training OR (2) at least five years of non-US work experience related to training
Maximum duration: Intern 12 months / Trainee 18 months (limitation agriculture & hospitality & tourism 12 months for either category)

31. H-3 Trainees Formal training program required
Productive employment incidental to training
Training will qualify alien for position abroad
Training up to 2 years

33. Labor Certification Update
William A. Stock, Esq.
AILA DOL Liaison Committee

34. Backlog Centers Are No More
Roughly 364,000 Cases decided between March 25, 2005 and October 31, 2007
Only about 13 cases left
Philadelphia and Dallas Centers Have Been Shut Down (were 75% of DOL Labor Cert Budget)
Remaining cases (and any remanded appeals) will be handled at the Chicago National Processing Center and the National Office

35. Unresolved Backlog Center Cases
Lost Certifications: Must File I-140 without it, though the deadline is passed
Litigation Would Be Necessary for Any Remaining “Missing” Cases
Amendments and White Out Not Stamped by DOL Are Questioned by USCIS

36. PERM Processing: Progress?
DOL will “Specialize” the Two National Processing Centers
Atlanta: All PERM Labor Certifications
Chicago: All H-2B Labor Certifications
Resources Used to Run Backlog Centers Now Allocated to PERM and H-2B – Expect Audits and Supervised Recruitment
Audit Rate: DOL will not reveal, but significantly increased
As of 12/31/07, 44% of pending cases were in “Audit Review” status

37. PERM Processing: Current Issues
When Is “Kellogg” Language Required?
Are Employer’s Names on the Posted Notice of Job Opportunity?
Are Advertisements Specific Enough?
When Is “Business Necessity” Required?

38. Business Necessity
Explains why the Requirements are Reasonable and Necessary to Do the Job
A Detailed Employer’s Statement is the Foundation
Employer’s Preexisting Documents are Convincing
Job Descriptions
Resumes of Colleagues/Prior Employees in the Position
Outside Documentation May Be Helpful
Expert Opinions
Statements from Customers or Competitors
DOL Publications (Occupational Outlook Handbook, etc)

39. New Rules in 2007 Labor Certifications May Not Be Bought or Sold
Attorney’s Fees and Other Labor Certification Costs to be Borne by the Employer
“Substitution of Beneficiary” Is No More
Labor Certifications Expire 180 Days After Submission Unless Filed With an I-140
USCIS: One filing within 180 days satisfies requirement
Subsequent petitions can be based on expired LC

40. PERM Processing: The Future
Will We See A Fee for Labor Certifications?
Building Capacity for H-2Bs, More Audits
Release of Data; Possibility of Longitudinal Studies
Reengineered Form in Effect January 1, 2009
LCA Adjudication Process Will Be “Employer Account” Based as of January 1, 2009 – and may take 7 days for an LCA

42. Upgrading to a Higher Preference Category
Suzanne B. Seltzer, Esq.
AILA Vermont Service Center Liaison Committee

43. What are Preference Categories?
Order in which visas are made available
1st Preference (Eb-1)
Multi-National Executives/Mgrs
Aliens of Extraordinary Ability
Outstanding Researcher

44. What are Preference Categories?
(cont’d)
Order in which visas are made available
2nd Preference (Eb-2)
Advanced Degree Professionals
Bachelors + 5 years Experience
National Interest Waivers
Aliens of Exceptional Ability

45. What are Preference Categories?
(cont’d)
Order in which visas are made available
3rd Preference (Eb-3)
Skilled Workers (requiring 2yrs + experience)
Professionals (bachelor’s degree)
“Other” workers (only 5,000 per year)

46. Why Upgrade?
Quotas
Per Country
Per Preference Category
Issued in Order in which Petition Filed (Priority Date)

47. Where Are We Now April 2008 Visa Bulletin – Empl. Based 1st C 2nd
Worldwide
CHINA- mainland born
INDIA
MEXICO
PHILIPPINES
1st C
2nd
01DEC03 
01DEC03
3rd
01JUL05 
08FEB03
01OCT01
01JUL05
Other Workers
01MAR02

48. How to Upgrade? Eb-3 to Eb-2 PERM Context Bachelors + 5 years
Master’s Degree or Higher
Exceptional Ability

49. How to Upgrade? Eb-3 to Eb-2 National Interest Waiver
(cont’d)
Eb-3 to Eb-2
National Interest Waiver
“Waives” the Requirement of Job Offer
Must Either Have
Advanced Degree
Exceptional Ability

50. How to Upgrade? Eb-3 to Eb-2 National Interest Waiver NYSDOT Criteria
(cont’d)
Eb-3 to Eb-2
National Interest Waiver
NYSDOT Criteria
Substantial Intrinsic Merit
National in Scope
Substantially Better Than Others

51. How to Upgrade? Eb-2 to Eb-1 Extraordinary Self-Petition
(cont’d)
Eb-2 to Eb-1
Extraordinary
Self-Petition
Regulatory Criteria
Support Letters

52. How to Upgrade? Eb-2 to Eb-1 Outstanding Researcher Employer Sponsored
(cont’d)
Eb-2 to Eb-1
Outstanding Researcher
Employer Sponsored
University/Institution of Higher Ed
Private Employer
At least 3 full time researchers
“Documented Accomplishments”
Tenure Track or “Permanent” Offer

53. How to Upgrade? Eb-2 to Eb-1 Outstanding Researcher
(cont’d)
Eb-2 to Eb-1
Outstanding Researcher
Three years experience
Recognized Internationally
Regulatory Criteria
Support Letters

54. How to Upgrade? Eb-2 to Eb-1 Multinational Executive/Mgr
(cont’d)
Eb-2 to Eb-1
Multinational Executive/Mgr
Employer Sponsored
Qualifying Rel. between US and foreign entity
At least One Year “Doing Business”
One Year in Last Three Mgr or Exec
One Year Abroad as Mgr or Exec

55. What if I Can’t Upgrade Valid Non-Immigrant Status
Extending H beyond 6 years
Buy back time
Start LPR process one year in advance
Exploring other NIV
Eternal Adjustment Applicant

57. Advising the Eternal Adjustment Applicant
H. Ronald Klasko, Esq.

58. Maintenance of Nonimmigrant Status after Filing Adjustment
H-1B, H-4, L-1, L-2
O and E
F-1, H-3 and other temporary statuses

59. Travel Travel by nonimmigrant other than H-1B, H-4, L-1, L-2
Travel by H-1B, H-4, L-1, L-2
Travel using advance parole
Travel after advance parole filed
Travel after advance parole approved
Timing for advance parole extensions
Issues with multiple advance parole documents

60. Extensions of H-1B or L-1 Status
Advice regarding extension of H or L versus obtaining EAD
Length of extension
Extension of H or L status by parolee

61. Employment during Adjustment Pendency
Travel with parole and work without EAD
Impact of working without authorization after filing adjustment
Timing of extension of EAD

62. Spouses Issues of H-4 working with EAD Issues of L-2 working with EAD
Issues of H-4/L-2 where principal entered on parole
Following to join after quota retrogression
Status of H-4/L-2 where principal works without authorization

63. Children Protecting age if child outside the US
Child over 21 when adjustment filed for principal
Impact of quota retrogression on concurrent adjustment for child

64. Questions ?

65. Immigration Consequences of Criminal Activities
Theodore J. Murphy, Esq.

66. Introduction When Do We Care About Crimes?
What Crimes Do We Care About?
Arrests, Convictions, Pleas, Diversions
Avoiding Immigration Consequences

67. Immigration Consequences – When Criminal Activity Matters
ADMISSIBILITY: Eligibility to get a visa and enter the United States and Adjustment of status
DEPORTABILITY: Causing loss of status and subjecting one to possible deportation
NATURALIZATION: Certain Crimes prevent a showing of “Good Moral Character”

68. What Criminal Activity has Immigration Consequences?
Commission of the crime
Arrests
Diversions
Convictions

69. ARRESTS GENERALLY A mere arrest can have a negative impact
Any arrest must always be admitted in all immigration contexts
Arrests will appear in computerized records if person was fingerprinted
No distinction between misdemeanor or felony

70. What is a “conviction”? A “conviction” means either:
a judge or jury found the individual guilty; OR
a pre-trial diversion program in which the alien entered a plea of guilty/no contest as part of the diversion program.
Conviction still exists even if just fine or probation, no jail
Misdemeanor or felony distinction is unimportant

71. Severity of Crimes
Less Problematic – traffic citations, minors with alcohol, DUI
More Problematic – minor theft, simple assault, marijuana
Most Problematic - selling drugs, guns, slavery, violent crimes, racketeering, perjury, fraud, tax evasion, theft, alien smuggling, etc.

72. Domestic Offenses
Most domestic offenses, including spousal abuse, child abuse or neglect, stalking, violation of protective orders, can result in deportation
Domestic partners, fiancé/es, former spouses included in spousal abuse
This includes convictions for misdemeanors and violating civil protection orders!

73. Preventing Immigration Consequences
Early Involvement of Immigration Counsel with Criminal Counsel
Formal or Informal Diversion Programs
Plea or Sentencing Agreements to Avoid Immigration Consequences

74. So What Happens After Convictions?
Loss of status
Ineligibility for future immigration benefits
Visa delays because of fingerprint checks
Detention
Deportation

75. After a Conviction, Can Anything Be Done?
Generally, convictions cannot be “expunged” or erased for immigration purposes
Some waivers are available in limited circumstances
Purpose for post conviction action: deportability vs. mere hassle
Certified copies of court papers

77. Dealing with Government Adjudication Delays
H. Ronald Klasko, Esq.
Theodore J. Murphy, Esq.
Dealing with
Government
Adjudication Delays

78. Options for Dealing with Delayed Cases
Do Nothing – wait and hope
Make inquiries
Seek Congressional assistance
Litigation

79. Causes of Delay Processing backlogs RFEs: delay in responding
Inadmissibility issues
Investigations
Motions to Reopen or Reconsider
Government errors
Priority date retrogression

80. Causes of Delay Clearances Technology Alert List Criminal clearances
(cont’d)
Clearances
Technology Alert List
Criminal clearances
Security clearances
Name check clearances

81. Administrative Mechanisms for Addressing Delays
USCIS
Premium Processing
Service Center inquiries
Interim EAD
DOL inquiries
DOS inquiries:
Consulates
Visa Office
AILA inquiry mechanisms

82. Federal Court Litigation: Pre-litigation Issues and Concerns
Expense
Time involvement
Retaliation?
When to file?
Actions to take before filing
Where to file?
How long will it take?
What are the chances of success?

83. Federal Court Litigation: Legal Framework
What is the law?
Mandamus
Administrative Procedure Act
Complaint
Who are the parties?
What relief is requested?

84. Types of Applications I-129/I-140 I-485 Employer as plaintiff
Memo re: name check delays (2-4-08)
180 days from request to FBI
Adjudicate if approvable and quota current

85. Types of Applications N-400 No 180-day limit on name check delays
New FBI targeted timeframes
If interviewed
Can choose to have federal court decide 120 days after interview
USCIS policy to withhold interview until name checks clear
If not interviewed
Option to file mandamus in federal court
(cont’d)

86. Federal Court Litigation: Responses of the Government
Possibility of “expedite”
Officially
Unofficially
Motion to Dismiss

87. Federal Court Litigation: Role of the Judge
No precedent: judge is critical
Active judges/passive judges
Range of orders

89. Worksite Enforcement
discussion leader
Elise A. Fialkowski, Esq.

90. Overview - Brave New World for Employers
New government enforcement priorities and techniques;
Penalties for non-compliance, including criminal liability;
Impact of State and local laws;
Social security no-match letters;
Choosing whether to participate in voluntary government programs (E-Verify, IMAGE).

91. ICE Enforcement Strategy
Recent ICE enforcement initiatives—audit v. raid
Increased civil fines coupled with criminal penalties
ICE has the authority to use wiretaps
ICE has the authority to establish and operate undercover investigations
ICE utilizes confidential informants
ICE coordinates with IRS, DOL and other agencies

92. Impact of State and Local Laws
As of December 31, 2007, at least 1562 pieces of legislation related to immigrants had been introduced among the 50 state legislatures – of the 240 that became law – 29 effect employment in approximately 20 states.
Companies that knowingly hire illegal workers may face:
Possible loss of business licenses – Arizona, Tennessee, West Virginia
Possible loss of government grants and contracts – Arkansas, Colorado, Delaware, Georgia, Idaho, Iowa, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas
Some states require E-Verify while Illinois prohibits it.

93. “No-Match” Regulations
DHS/ICE issued regulations on August 15, 2007 to be effective September 14, 2007—constructive knowledge receipt of Social Security no match letter or Written notice from DHS
Prior to effective date, the U.S.D.C. for the Northern District of California enjoined the implementation
On March 21, DHS Supplemental Proposed Rule
On March 24, 2008 the Office of Special Counsel issued Antidiscrimination Guidance

94. Social Security “No Match” Regulation
“Reasonable steps” to rebut constructive knowledge presumption (“safe harbor”)
Within 30 days: employer check/correct records and inform SSA/DHS
Within 90 days: if employer records correct, request employee confirmation
If employee corrects record, employer correct and inform SSA
If employee states employer records correct, employee must resolve discrepancy with SSA within 90 days

95. Social Security “No Match” Regulation
(cont’d)
If unresolved after 90 days, new I-9 must be completed by the 93rd day.
Employer cannot accept the following:
Any document referenced in written notice
Any document with disputed social security or alien number
Any receipt for replacement of such document
Employee must present a document with a photograph
If not, terminate

96. Choosing Whether to Participate in Voluntary Government Programs
E-Verify
Checks social security number against national databases-SSA & DHS
New photo screening tool
Voluntary program (at least on federal level at this time)
Requires Employer to agree to MOU with DHS and SSA w/significant obligations

97. E-Verify Memorandum Of Understanding
Main Employer Responsibilities
Post notices
Agree to visits by ICE and/or designees
Attach results to Form I-9 and retain for same time as form
Rebuttable presumption of compliance if confirmation is obtained
Notify DHS if continues to employ following non-confirmation (civil penalties $500-$1,000 for failure to notify)
If continued employment after Final Non-Confirmation a rebuttable presumption of violation of INA § 274A(a)(1)(A) is created

98. General Guidelines for E-Verify
Not a substitute for I-9 compliance
Does not provide protection against worksite enforcement
Cannot be used to pre-screen
Can only be used to verify eligibility of newly hired employees
Queries must be conducted within 3 days after hire
You can leave the E-Verify program only after 30 days notice

99. Guidelines for E-Verify
(cont’d)
What you need:
Information from Section 1 and 2 from the Form I-9
Employees name
Date of Birth
Social Security Number
Citizenship Status employee attest to
A# or I-94 # if applicable
Expiration dates for identification and eligibility documents
Identification document provided from List “B” must contain a photograph

100. Results Confirmation – GREEN LIGHT Final Non-Confirmation – RED LIGHT
Record the case verification number of Form I-9 or attach printout of result screen.
This ends the process - Obligation to re-verify remains for time limited authorizations.
Final Non-Confirmation – RED LIGHT
Record the case verification number of Form I-9 or attach printout of result screen

101. Results Tentative Non-Confirmation – YELLOW LIGHT
(cont’d)
Tentative Non-Confirmation – YELLOW LIGHT
System cannot perform immediate match
NOT grounds for termination
Follow up steps:
Double check input date to ensure no errors (if errors are found run SSA query again)
Record case verification number
Inform employee of tentative non-confirmation

102. Results
(cont’d)
Inform employee he/she has the right to contest non-confirmation with SSA or DHS
If employee does not contest – YOU MUST TERMINATE EMPLOYMENT
If employee contests –must provide with a referral letter to SSA or refer to contact DHS. Employee has 8 Federal Working Days to resolve discrepancy with SSA/DHS (unless SSA/DHS extends)
On the date that is 10 Federal Working Days after the date of the referral you must query the system again.

103. Advantages of Using E-Verify
Rebuttable presumption of compliance if confirmation is obtained—Swift
Allows employer to query system re validity of documentation
For employers with higher percentage of undocumented workers or greater use of fraudulent documents, saves time/training by identifying unauthorized workers prior to no-match

104. Disadvantages of Using E-Verify
Significant problems with underlying databases
Potential waiver of 4th Amendment protections
Limited to new hires
No safe harbor from worksite enforcement
SSA may not extend 8-day resolution period
No formal appeals process
Continued employment after final non-confirmation results in rebuttable presumption of violation

105. Disadvantages of Using E-Verify
(cont’d)
Penalty of $500 to $1000 for each failure to notify of continued employment after final non-confirmation
Insufficient protection from discrimination claims
Value/impact of new photo tool questionable
30 day notification period to withdraw
Issue as to whether system can handle increased volume
Add’l HR and company time for process in addition to I-9

106. IMAGE-Choosing Whether to participate in Voluntary Government Program
ICE Mutual Agreement between Government and Employers (“IMAGE”) (
I-9 audit by ICE
Verify social security numbers of existing workforce
ICE training and education
Commit to ICE “best practices”
Establish “tip line” to ICE
Does not ensure against raid, investigation, fine or criminal action

108. Speaker Contact Information
H. Ronald Klasko, Esq.
Tele:
Fax:
Richard R. Rulon, Esq.
Tele:
William A. Stock, Esq.
Tele:
Fax:
Suzanne B. Seltzer, Esq.
Tele:
Fax:
cont’d…

109. Speaker Contact Information
Elise A. Fialkowski, Esq.
Tele:
Fax:
Theodore J. Murphy, Esq.
Tele:
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