New ICE Position on I-9 Compliance Poses Threat to Employers

Just last month, the Worksite Investigation Enforcement Unit of the Immigration & Customs Enforcement (“ICE”) division of the Department of Homeland Security announced a change in policy regarding the use of electronic software for I-9 completion, storage, and compliance.

ICE stated publicly that it will no longer accept I-9 forms that have Section 1 content that has been pre-populated electronically because employees must complete Section 1 of the form entirely for themselves. The fact that an employee provided in writing the original information on which his or her Section 1 electronic content is based does not matter. ICE considers any pre-population of employee data on the I-9 form to be unacceptable, even if the data was provided by a translator who completed the translator section of the form.

This is a very important development for employers who use electronic I-9 systems for completion, storage and retrieval of I-9 information. These systems are beneficial in part because they are integrated with other HR systems, creating efficiencies in employment data tracking and compliance, but now part of their value will be lost as employers are forced to spend valuable time insuring that employees fill out the paperwork manually in front of a company witness.

Furthermore, ICE confirmed that it would remain steadfast on this interpretation in a meeting with a committee of the American Immigration Lawyers Association on April 11, 2013, adding that the prohibition on pre-population pertains to existing I-9 forms, as well as to the completion of future forms. This means that employers could face significant exposure to fines and penalties for failing to complete I-9 forms properly at a time when nobody questioned the pre-population of accurate data provided in good faith.

Employers might want to consult with counsel regarding any steps that can be taken to cure defects in I-9 compliance or prevent penalties for non-compliance in the future.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, including employers who need I-9 compliance counseling or support. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

Key Reforms in Immigration Bill Move to Full Senate Debate

Less than 48 hours ago, by a vote of 13-5, the U.S. Senate Judiciary Committee approved the bipartisan immigration reform bill known as “The Border Security, Economic Opportunity & Immigration Modernization Act of 2013,” paving the way for a discussion and vote on the measure by the full Senate.

Reportedly, the original version of the bill emerged from the Judiciary Committee with just a few proposed amendments, one of which would extend welfare benefits to undocumented immigrants rather than delaying them for years until citizenship is attained, and another similarly extending affordable health care benefits to those immigrants as well.

The American Immigration Lawyers Association (“AILA”) has issued a press release commending all of the Senators involved in bringing the bipartisan proposal for badly needed immigration reforms to the floor, noting that there are several key changes in law proposed by the Act.

Among the most significant changes that AILA noted are the following:

• New Legal Status: Non-citizens who entered the U.S. before Dec. 31, 2011, and remain here unlawfully would be allowed to adjust their status to that of a Registered Provisional Immigrant (a new category). Those in this category would receive work authorizations and be permitted to travel abroad upon paying a designated penalty and back taxes, becoming eligible to apply for Legal Permanent Resident status after a specified period of time. Most would have to wait 10 years, but agricultural workers and those covered by so-called “DREAM” provisions applicable to people brought here as children will be on shorter tracks. Legal Permanent Residents would then be on a three-year path to citizenship.
• New Visas for Low-Wage Workers: The Act would create a new W-1 visa for workers with less valuable skills, and a W-2 visa for workers who come here for seasonal or temporary labor. A new W-3 visa would also apply to “at will” workers with offers of full-time employment in agricultural occupations.
• Elimination of Certain Quotas: The Act would exempt from quotas all EB-1 immigrants (those with demonstrated extraordinary ability, certain professors and researchers, and global executives or senior managers) and specifically exempt doctoral degree holders and physicians who have completed foreign residency requirements.
• Increase in H-1B Quotas: The Act would increase the current quota for H-1B visa holders (those with certain specialty occupations) by more than 75 percent to a total of at least 110,000 per year to as much as 180,000, dependent on economic conditions. It would also increase the advanced degree exemption slots for H-1B placement, but limit those slots to applicants in science, technology, engineering or medical disciplines.
• Requirement to Use E-verify: The Act would require all employers to use the federal E-verify system to document employment eligibility within five years.
• Protection Against Fraud: The Act would make it a serious crime to knowingly defraud an immigrant or attempt to do so by holding one self out to be an immigration attorney or accredited legal representative when one is not authorized to do so. Individuals who assist immigrants in the completion of government forms related to immigration would also have to be identified and registered for monitoring under the Act.

We will be tracking continuing developments in federal immigration reform as they occur, and look forward to bringing you more information in the months ahead, which promise to provide significant debate on Capitol Hill.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, including those who are likely to be the beneficiaries of expected legislative reforms. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

Immigration Oversights Can Spoil Summer Travel Plans

As we enter the travel season with an improving economy, many parents are planning to take their children to exciting international venues, but could find themselves stymied at ports of departure or entry if they have not secured the proper special paperwork related to child travel.

Among other things, parents need a child’s passport, and if they are traveling without the other parent, a Permission to Travel Letter (“PTL”)  in form acceptable to the applicable U.S. and foreign authorities.

The custodial parent must have a written and notarized PTL executed by both legal parents or legal guardians to travel lawfully. Furthermore, if a custodial parent is planning to take a child on a cruise, they will need a PTL for shore excursions in each country they are visiting.

Minors traveling in the company of their sports teams or cultural study groups will similarly need proper documentation, which should be supplied to the travel group leader.

The officials at international border crossings and ports of entry are particularly scrutinizing these forms now that so many child abductions and abuse stories have been in the news, so parents and travel group leaders must be very attentive to PTL requirements. They can check with the U.S. State Department for assistance, but it is best to call the visa section of the relevant foreign embassies if there are any doubts about what is required at each destination.

Generally, a notarized PTL must include, at a minimum, the dates of authorized travel, the accompanying adult’s name, all relevant contact information, and a notarized signature or signatures, as required by relevant authority. Some countries may require supplemental paperwork, and the U.S. State Department Website can provide helpful information related to the requisites of other countries.

It is also wise to provide a traveling child and their responsible adult supervisor with medical authorization forms in case of illness or accident because some doctors or facilities may refuse to treat minors unless it is clear that the adult traveling with the child can be treated with parental or guardian consent, as applicable. Proof of medical insurance coverage may also be required by some medical care providers.

Parents should look at the U.S. State Department Website and Form 3053 well in advance of any travel trips this summer if they want to avoid having their trip unpleasantly interrupted.

If you are traveling to or from the U.S and have questions about required travel authorizations or paperwork required by U.S. immigration laws, please do not hesitate to contact our office at  (847) 564-0712 for an appointment to speak with an experienced and qualified immigration lawyer. You can also check out our immigration law Website for more information about how we might assist you.

New Process Streamlines International Travel

For the past few weeks, the U.S. Customs and Border Protection agency (“CBP”) of the Department of Homeland Security has been phasing out its process related to Form I-94 for international arrival and departure tracking. CBP is replacing the old system with a new automated electronic system for tracking international travel by air or sea.

This step forward is expected to streamline the process of international travel, especially entry into the U.S., while facilitating greater security and reducing costs.

Foreign visitors arriving in the U.S. via air or sea at designated ports are now able to access their CBP arrival/departure records online, and use that information when dealing with employers, schools and government agencies who might need to verify those records. The first group of air and sea ports to enjoy the benefits of this updated system include specified facilities in:

• Charlotte, NC;
• Chicago, IL;
• Houston, TX;
• Las Vegas, NV;
• Miami, FL; and
• Orlando. FL.

However, CBP is still issuing and requiring paper Form I-94 at other designated ports and at all land border points of entry. The Form I-94 automation process will continue to be phased in at other air and sea ports over time.

Under the new process, a CBP officer will stamp the travel document of each arriving non-immigrant traveler, showing by means of the stamp, the admission date, the class of admission, and the date through which the traveler is permitted to stay. Travelers will also get from CBP a flier notifying them that they can use CBP.gov/I94 to check and confirm their admission records.

Travelers will not do anything differently upon exiting the U.S. at this time; however, they may notice that CBP will increasingly record their departures solely by electronic means provided by the transportation carrier or by CBP.

If you are traveling to or from the U.S and have questions about required travel authorizations or paperwork required by U.S. immigration laws, please do not hesitate to contact our office at  (847) 564-0712 for an appointment to speak with an experienced and qualified immigration lawyer. You can also check out our immigration law Website for more information about how we might assist you.

Immigration Reform Proposes Merit-based System of Preferences

Last month, the U.S. Senate put forward a bipartisan legislative proposal entitled, “The Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” which would provide millions of undocumented immigrants with a path to citizenship in this country.

What is less well-known about the bill is that it would give significant preferences to better-educated and better-trained workers in the U.S. visa process, opening up more opportunities for them under both new and established programs for skilled or gifted professionals.

The proposed bill’s new “merit-based” system would definitely favor those immigrants with skills in the so-called “STEM” disciplines of science, technology, engineering and mathematics. Those who have attended college and/or have acquired on the job training skills would also be a leg up in the visa and citizenship process.

Under current law, the best method of getting a green card for permanent residence status is to be sponsored by an immediate family member who is a U.S. citizen. Under the new bill, more green cards would be awarded to immigrants based on a “points” system that awards points to applicants based on their level of education, employment experience, business entrepreneurship, and English language proficiency, as well as family ties.

For example, foreigners with Ph.D. degrees would reportedly score 15 points, those with full-time job experience in the U.S. would score 10 points, and those who speak or write in fluent English could score another 10 points. The merit-based visas would then be awarded to those immigrants who scored the greatest number of points in the merit system.

Supporters of the legislative proposal say that such an approach would align the U.S. with other nations, such as Canada and Australia, that have successfully used a merit-based system for attracting highly skilled and educated workers.

Critics of the legislative proposal suggest that the U.S. will need more lower paid, low-skilled workers who care for the elderly, prepare food, and work in blue-collar jobs. The National Immigration Law Center has noted that the points system favors people who have had access to education and work in the professional sector, leaving lower-wage workers with fewer skills out in the cold.

However, both commercial trade groups and organized labor have publicly supported the expanded guest worker provisions of the new bill, as well as the increases in visa slots for non-immigrant H-1B visas for specialty occupations, which were entirely snapped up within the first week of being opened to the public this year.

If your business needs foreign workers to fill specific needs, and you are not sure how to sponsor those workers, or if you just need legal assistance with any business immigration issue, please do not hesitate to contact our office at (847) 564-0712 for an appointment to speak with an experienced and qualified immigration lawyer. You can also check out our immigration law Website for more information about how we might assist you.

White House Stands Firm on Path to Citizenship

At the start of this month, President Barack Obama publicly indicated that he would seek compromise in order to get a comprehensive immigration bill signed into law this year, but he also stated unequivocally that he would not compromise on his insistence that any immigration legislation must contain a path to citizenship for undocumented immigrants.

The president also stated that he could accept legislative compromises to the current Senate proposal through an amendment process, provided that the bill would still address certain core elements, including:

• border security issues;
• punishment of employers who knowingly hire undocumented workers; and
• streamlining of the processes involved in applying for immigration status or benefits.

Immigration advocates are still concerned that the path to citizenship should not be so narrow or difficult that millions of immigrants would be discouraged from ever applying for citizenship (the current proposal would require many years of waiting and many steps to take).

Still, the president has affirmed his support of the current senate bill, acknowledging that it contains some measures that he does not like which were a product of extended negotiations. “It’s the right thing to do. It’s the smart thing to do,” the president reportedly said, expressing optimism that enough bipartisan votes can be found in the House to support the comprehensive immigration solution.

While some observers on the Hill have doubts about a bill that opponents have decried as “blanket amnesty” it appears that many varied special interest groups support the reforms, including the Chamber of Commerce and various civil rights groups. Thus, there are sound reasons to be optimistic about passage of a bill this year.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, including those who are likely to be the beneficiaries of expected legislative reforms. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

DOMA Project Explains Green Card “Basics” for Same-Sex Couples

The DOMA Project, a non-profit group fighting to stop deportations and separations of same-sex bi-national couples who are immigration casualties of the Defense of Marriage Act (“DOMA”), has created a video about “green card basics” for same-sex couples that provides a nice overview of immigration rights for same-sex couples.

The DOMA Project also offers a downloadable PDF, which provides a written outline of their helpful presentation. Same-sex couples with immigration issues might want to view the video and the PDF, which both provide an overview of:

• The implications of a U.S. Supreme Court ruling that strikes down Section 3 of DOMA;
• The basic process of applying for a green card on the basis of a bona fide marriage to a U.S. citizen;
• The immigration benefits available to foreign spouses during the pendency of a green card application decision;
• The government interview process applicable to marriages between U.S. citizens and foreign nationals;
• The immigration petitions applicable to foreign fiancés of U.S. citizens; and
• Some basic “do’s and don’ts” in the green card application process.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, particularly those gay and lesbian couples who need help with immigration benefits related to their marriage status. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

What Gay Couples Can Expect If DOMA Falls

The U.S. Supreme Court is expected to rule on a challenge to the federal Defense of Marriage Act (“DOMA”) before its summer recess, and legal experts are already in disarray over what the ruling could mean for same-sex married couples who live in, work in, or move to one of the 38 states that specifically bar the recognition of gay marriage.

Nine states and the District of Columbia specifically permit gay marriage (three have no explicit imprimatur) and married gay couples living in those states will certainly see their marriages recognized by the federal government if challenged provisions in DOMA are struck down. Such a favorable ruling would then qualify those couples for a wide array of federal benefits authorized under more than 1,100 federal statutes pertaining to benefits.

But it will likely remain uncertain as to what would happen if a same-sex married couple moved from a state that explicitly permitted gay marriage to a state that prohibited it. Legal experts are all tangled up over what would happen in that case to the acknowledgement and processing of various tax breaks, Social Security survivor benefits, medical leave rights and other benefits and privileges of marriage.

The only thing the experts agree upon is that if the challenged provisions of DOMA are struck down by the Court, then there will be a case-by-case conflict resolution concerning the applicability of hundreds of benefits and privileges associated with statutes relevant to the marriage status.

The fact is, however, that many benefits would have to be made available to same-sex couples, regardless of their state of residence. For instance, same-sex couples will almost certainly be able to apply for green cards for their spouses as soon as DOMA falls, no matter where they live. That is because a marriage is valid, for purposes of immigration law, if it is recognized in the place where it was performed.

On the other hand, in estate tax planning and will administration, a marriage is generally valid only if it is recognized in the state where the residing spouse dies, so the results could be different for gay couples who leave an estate in a jurisdiction that does not recognize gay marriage.

The only thing we know for sure is that a conflict of laws among the states and the federal government will result in a massive proliferation of lawsuits, leading to more challenges that will likely go to the U.S. Supreme Court for resolution. In fact, Harvard Law School Professor Noah Feldman has reportedly predicted a “storm of legal chaos” that could result in gay couples being married for some purposes and not for others, such as tax returns, estate planning, social security benefits, hospital visits, and other ordinary “course of life” issues.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, particularly those gay and lesbian couples who need help with immigration benefits related to their marriage status. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

Proposed Path to Citizenship Not Without Obstacles

The U.S. Senate’s “The Border Security, Economic Opportunity and Immigration Modernization Act of 2013″ contains a path to citizenship for millions of undocumented immigrants who have been in this country since on or before Dec. 31, 2013.

But this path is not short. It will take a minimum of five years for those with provisional legal status just to obtain legal permanent residence status for agricultural workers and those who came here as children and would be covered by the Act’s DREAM provisions. It will take a minimum of ten years for others with provisional legal status to obtain legal permanent residence status for most other immigrants. Only thereafter may they file for citizenship, and most will have to wait for a minimum of an additional three years to do that.

Furthermore, there are a number of bars to obtaining provisional legal status, permanent residence status or citizenship. Nobody will qualify who has been convicted of:

• A felony;
• Three or more misdemeanors; or
• An offense under any foreign law.

Applicants or petitioners can also be disqualified for unlawful voting, as well as presenting national security or health risks.

The government can also decline to grant a legal status based on “morality grounds” which are presumably broader than legislative proscriptions proposed in 2006 and 2007 for polygamy and child abduction specifically.

To qualify for merit-based award of permanent resident status, an applicant under the current Senate bill would also have to demonstrate:

• A continuous physical presence in the U.S. (with some exceptions);
• Payment of all taxes owed during the provisional period;
• Regular work in the U.S. during the period;
• Knowledge of civics and English; and
• Payment of a $1,000 penalty for illegal entry.

Failure to meet any of those prerequisites will constitute an immovable obstacle on the path to citizenship.

The bill also generally expands the “immediate relative” visa category, but it proposes to eliminate green card eligibility for the brothers and sisters of U.S. citizens to cut back on the amount of siblings entering the country on the coat-tails of one family member. Thus, anyone thinking now of obtaining a green card with the help of a sibling, should immediately file a petition for permanent resident status before this legislation is enacted, possibly later this year.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, including those who are siblings of U.S. citizens that need green cards. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.

Senate Officially Unveils Proposal for a Path to Citizenship

Less than 10 days ago, the U.S. Senate put forward a legislative proposal entitled, “The Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” which would provide millions of undocumented immigrants with a path to citizenship in this country.

Those eligible for citizenship would have to pay a registration fee, processing fees and certain “assessed taxes” based on their history in this country, and they would only qualify after a period of time on provisional legal status.

Furthermore, the bill would require Homeland Security to create and launch a border security and fencing program before undocumented immigrants could even be covered by the protections of provisional legal status, which among other things, would allow qualified immigrants to continuing working here and return after periodic travel abroad.

After Homeland Security executes its launch of a border security and fencing program, undocumented immigrants who are not disqualified by certain criminal convictions or safety risks will be allowed to remain in the U.S. under a “provisional legal status” for a six-year term, renewable if no deportable acts have been committed during the prior term. While they remain in the U.S. under a provisional status, they would be barred from federal benefits for welfare or health care.

Those who have resided here on provisional status for 10 years or more could then seek permanent residence status, obtaining so-called “green cards“ through a new “merit-based” system that would score applications based on points awarded to each applicant under a scoring system designed to favor the most desirable citizens. But this transition would only become possible if the security and fencing program has been substantially carried out, as decided by some kind of bipartisan review.

To qualify for merit-based award of permanent resident status, an applicant would have to demonstrate:

• A continuous physical presence (with some exceptions);
• Payment of all taxes owed during the provisional period;
• Regular work in the U.S. during the period;
• Knowledge of civics and English;
• Payment of a $1,000 penalty for illegal entry.

Those immigrants who obtain permanent resident status can then petition for citizenship after another three years, and those who do not can remain here under the renewable provisional status.

Immigrants who are agricultural workers, as well as those who were brought here as youths that would be covered by special “DREAM” provisions, would be entitled to a quicker path to citizenship. These groups could get green cards after five years, and would become eligible to file petitions for citizenship immediately thereafter.

There would also be no limit on the number of green cards awarded to certain immigrants of “extraordinary ability” in science, arts, education, business or athletics, or to outstanding professors, doctors or certain skilled professionals.

The bill also generally expands the “immediate relative” visa category, but it proposes to eliminate green card eligibility for the brothers and sisters of U.S. citizens to cut back on the amount of siblings entering the country on the coat-tails of one family member. Thus, anyone thinking now of obtaining a green card with the help of a sibling, should immediately file a petition for permanent resident status before this legislation is enacted, possibly later this year.

As always, the Law Office of Ronald Shapiro, Esq. stands ready to serve those in need of immigration assistance, including those who are siblings of U.S. citizens that need green cards. Please contact us at (847)564-0712 to speak with an experienced and qualified immigration attorney and/or check out our immigration law Website for more information about how we might assist you.