Klasko, Rulon, Stock & Seltzer, LLP Current Immigration Issues for Healthcare Institutions Pennsylvania Bar Institute                     H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 rklasko@klaskolaw.com www.klaskolaw.com

H. Ronald Klasko, Esq. Ron Klasko has been providing immigration assistance and solutions to leading universities, hospitals, and research institutions for over 25 years.  Ron is a past National President of the American Immigration Lawyers Association.  He has been a member of the AILA Board of Governors since 1980. The firm has been selected as one of six top tier immigration firms in the United States for three consecutive years by the prestigious Chambers Global: The World's Leading Lawyers for Business (Chambers and Partners).  This publication noted the firm as the “strongest in the country” when it comes to representing clients in the university research and medical sectors and recognized Ron as “a leading national practitioner who really does it all” who is “literally on the cutting edge” when it comes to immigration policy and legislative issues. Ron has been selected as one of twelve top tier immigration lawyers in the US 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 and 2008 editions selected Ron as the “most highly regarded” immigration lawyer in the world.  Ron is a frequent author and lecturer on hospital and university-related immigration law 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.

Prospects for Immigration Legislation Legislative Overview Specific prospects for: Doctors Nurses E-Verify

Doctors Choice of visa J-1 H-1B O-1 Other

Doctors (cont’d) J-1Visa Procedure Timing Length Requirements

Doctors (cont’d) Procedure Timing Quota issues Length Requirements H-1B visa Procedure Timing Quota issues Length Requirements

Doctors (cont’d) J-1 advantages No employer sponsorship No employer recordkeeping No institutional liability No prevailing wage requirements No posting requirements Spouse of J-1 can be employed Substantial fees affiliated with H-1B are avoided No quota

Doctors (cont’d) H-1B advantages Greater flexibility Easier to change programs Moonlighting possible Doctor has no requirement to return to home country for two years Less chance of visa denial at U.S. consulate overseas Premium processing available

Doctors (cont’d) O-1 Visa Procedure Timing Length Requirements

Doctors (cont’d) Other Statuses Country – specific EAD Permanent resident

Doctors (cont’d) Two-Year return requirement Who has it? What is it? Options O-1 visa Waiver

Doctors (cont’d) Waiver of Two-Year Return Requirement Persecution Exceptional hardship Interested government agency Research Clinical

Doctors (cont’d) Clinical Waiver Options Sponsorship by state (Conrad 30 program) Sponsorship by federal government Veterans Administration Appalachian Regional Commission Delta Regional Authority HHS Issues in common and differences

Doctors (cont’d) Permanent Residence Sponsored by employer Labor certification application Not sponsored by employer Extraordinary ability National interest waiver

Doctors (cont’d) Institutional Liability Issues Wages Terminations Recordkeeping

Nurses Visa Options Often no good short- term option H-1B H-1C TN-1 J-1 F-1 H-2B

Nurses (cont’d) Permanent Residence Options Licensing Credentialing Procedure Timing quota delays Licensing Credentialing CGFNS Visa Screen

Overview How the E-Verify System Works Basics/Enrollment Employer Responsibilities/MOU General Guidelines Verification of Eligibility Handling Negative Results Practical Concerns & Considerations

Basics & Enrollment Checks social security number against national databases-SSA & DHS Voluntary (at least on federal level for non-contractors) Enrollment online- https://www.vis-dhs.com/employerRegistration/js Execute MOU with DHS and SSA Designate Corporate Administrator (oversees all hiring sites) / Designated Agent(s) Read User Manual Complete and pass on-line Tutorial Non-contractors may register selected work locations

Employer Responsibilities/MOU 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 Note—Federal contractor MOU has NOT yet been issued

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 unless federal contractor Queries must be conducted within 3 days after hire You can leave the E-Verify program only after 30 days notice

Verification of Eligibility (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 Document Type(s) submitted for I-9 Expiration dates for identification and eligibility documents Identification document provided from List “B” must contain a photograph Handling Verification of Existing Employees

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

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 data to ensure no errors (if errors are found, run SSA query again) Record case verification number Inform employee of tentative non-confirmation

Results- TNC (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 contact SSA/DHS 10 Federal Working Days after referral, query the system

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 17 month STEM OPT extension

Disadvantages of Using E-Verify Significant problems with underlying databases Potential waiver of 4th Amendment protections Limited to new hires unless contractor 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

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

Practical Compliance Considerations Audit of older I-9s Electronic I-9 program Employer Method v. Designated Agent Who conducts queries-multiple locations I-9 and E-Verify Policies Training Issues w/re existing employees

E-Verify Rule for Federal Contractors Executive Order requires federal contactors to use E-Verify Final rule effective date postponed to May 21, 2009 pending federal litigation Requires E-Verify of: All new employees All existing employees assigned to contract All existing employees if employer chooses to do so within 180 days

Impact of State and Local Laws Just in the first half of 2008, 1267 pieces of legislation related to immigrants have been introduced among the 45 state legislatures – of that 175 became law in 39 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, Massachusetts, Minnesota, Oklahoma, Pennsylvania, Tennessee

Impact of State and Local Laws-State E-Verify Rules E-Verify Required by all employers: AZ, MS, SC Contractors: CO, GA, MN, MS, MO, OK, RI, SC, UT Public employers: AZ, GA, MN, MS, MO, NC, OK, RI, SC, UT Barred: IL Note: ongoing litigation/injunctions

Questions ?

For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP rklasko@klaskolaw.com 215-825-8600 (Philadelphia) 212-796-8840 (New York) www.klaskolaw.com