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Klasko, Rulon, Stock & Seltzer, LLP 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 and 2008 editions 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.

Klasko, Rulon, Stock & Seltzer, LLP William A. Stock, Esq. Bill 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 over 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.

Klasko, Rulon, Stock & Seltzer, LLP Suzanne B. Seltzer, Esq.  Suzanne 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 holds several leadership positions within the immigration bar. She is the Chair, Vermont Service Center Liaison Committee; Member, U.S. Service Center Operations Committee; NAFSA Regulatory Ombudsman; co-Chair, National Coalition for Access to Healthcare, and is the past Co-Chair of AILA’s NY District Director Liaison Committee. 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, Best Lawyers in New York, SuperLawyers, and holds the highest rating of “AV” (LexisNexis Martindale-Hubbell). Suzanne obtained her JD from Georgetown University Law Center.

Klasko, Rulon, Stock & Seltzer, LLP 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. 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 including, for example, 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 (AILA), Elise serves on the Executive Committee of its Philadelphia Chapter, the AILA E-Verify Liaison Committee and the Philadelphia USCIS Liaison Committee. Elise also has particular expertise in the university setting. She represents a number of universities in connection with their student and intern programs and obtains work authorization and permanent residence for university employees. She also advises international students with regard to immigration options and employment following graduation as well as issues that may arise during their course of study and training. 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).

Klasko, Rulon, Stock & Seltzer, LLP 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.

Klasko, Rulon, Stock & Seltzer, LLP Navigating Stormy Seas Immigration 2009: Navigating Stormy Seas Agenda Introduction Service Center Report: Traversing Inland Waters Department of Labor Update: Temporary Programs Department of Labor Update: Permanent Programs Impact of Employer Cutbacks on Employers and Employees

Klasko, Rulon, Stock & Seltzer, LLP Worksite Enforcement Legislative Update: New Players, Same Game Questions & Answers Lunch Buffet (cont’d) Navigating Stormy Seas Immigration 2009: Navigating Stormy Seas Agenda

Suzanne B. Seltzer, Esq. Chair, AILA's Vermont Service Center Liaison Committee Member, AILA's Service Center Operations Committee NAFAS's Region X Regulatory Ombudsman

Klasko, Rulon, Stock & Seltzer, LLP Charting a New Course Transformation  Online account based system  IIN – “Immigration Identification Number”  Move towards paperless system  Move towards consolidated information Knowledge management

Klasko, Rulon, Stock & Seltzer, LLP Charting a New Course Bispecialization  5 regional service centers VSC/CSC – non immigrant petitions TSC/NSC – immigrant petitions NBC – family based petitions  Flexibility to transfer cases to center with most resources (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Service Centers Adrift “Pilots” following their own course  “The Plus” at TSC  90 day AOS at NBC (so no EAD/AP)  Reliance on contractors

Klasko, Rulon, Stock & Seltzer, LLP No Captain at the Helm Transfer petitions between Service Centers – used to one standard, get another New officers  Training issues  Increase discretion; decrease supervision  Decrease in access – NCSC FY 2010 H-1B Cap Issues

Klasko, Rulon, Stock & Seltzer, LLP Heading into the Rocks H-1B cap exemption  “Affiliated” with  Employed “at” L-1B  Functional manager  Specialized knowledge

Klasko, Rulon, Stock & Seltzer, LLP Re-adjudication of established facts Less time to respond to Requests for Evidence (RFE) Denials without RFEs Heading into the Rocks (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP TIDE Is Out EDGE-AACRO database for degree equivalency Processing time reports Online Status

Klasko, Rulon, Stock & Seltzer, LLP On the Horizon On the Horizon Related Issues at Department of State Security Advisory Opinions (SAO)  Visa Mantis – Technology Alert 4-6 weeks No inquiry before 90 days  PRC/Indian nationals Revised exchange visitor skills list

Klasko, Rulon, Stock & Seltzer, LLP

Department of Labor Update: Temporary Programs William A. Stock, Esq. AILA DOL Liaison Committee

Klasko, Rulon, Stock & Seltzer, LLP Introduction New iCERT Portal – Mandatory for LCA filing H-1B “Dependence” Prevailing Wage Issues DOL Enforcement Procedures

Klasko, Rulon, Stock & Seltzer, LLP The New DOL iCERT Portal for LCAs Available April 15 for registration/filing Mandatory for LCA Filing after 5/15 Account-based system (like PERM) DOL Anticipates “Analyst Review” may take up to 7 days provided in the statute

Klasko, Rulon, Stock & Seltzer, LLP H-1B “Dependents Employers” Attestations Also applies to TARP Funding Recipients and “Willful Violators;” may be expanded Attestation 1: Recruitment of US workers and hire of any equally or better qualified US workers Attestation 2: No layoff of US workers in the job within 90 days prior or 90 days after H-1B’s hire

Klasko, Rulon, Stock & Seltzer, LLP H-1B “Dependents Employers” Attestations Attestation 3: No placement of H-1B workers at another employer with a layoff of US workers in the job within 90 days prior or 90 days after the placement Exempt H-1Bs: Extra attestations do not apply (except for TARP recipients) if the H-1B is paid over $60,000 or has a Master’s or higher degree (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP H-1B “Dependents Employers” Attestations TARP Recipients Covered: Any receipt of government financing aid for banks under authority of the Treasury or Federal Reserve Recipients covered until they pay money back (according to the Fed) or until Feb Includes many programs other than direct aid, including voluntary participation helping government purchase “toxic assets” (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Prevailing Wage Issues SWA Wage Determinations  Advantage: “Safe Harbor”  Disadvantage: Binding on employer (no alternative) Understanding the OES and Wage Leveling The Problem of Extensions and “Level I” Wages Understanding Geographic Coverage DOL Mandated survey methodology

Klasko, Rulon, Stock & Seltzer, LLP DOL Enforcement Procedures Who Enforces: Wage and Hour Division What is Enforced: H-1B program, can also involve overtime How Initiated: Employee Complaint, or USCIS Referral Common Violations  “Initial Benching” after arrival  “Benching” during employment  Unauthorized Deductions  Incorrect Terminations

Klasko, Rulon, Stock & Seltzer, LLP

William A. Stock, Esq. AILA DOL Liaison Committee Department of Labor Update: Permanent Programs

Klasko, Rulon, Stock & Seltzer, LLP Introduction What’s New In Processing Time Audits and Their Results New iCERT Portal for PERM News from BALCA

Klasko, Rulon, Stock & Seltzer, LLP What’s New In Processing Times “No Audit” Cases from August 2008 Audited Cases from Summer 2007 Appeals from June 2007 BALCA Appeals: 6-12 months from time they are received by BALCA (6-12 months for DOL to forward)

Klasko, Rulon, Stock & Seltzer, LLP Audits and Their Results The Nitpicking Continues – Technical Denials Abound Industry Focused Audits Generic and Targeted Issues Audits  Layoffs  Requirements Related Good Faith Recruitment Tests

Klasko, Rulon, Stock & Seltzer, LLP New iCERT Portal for PERM System Registration for LCA and PERM More Detailed Questions on New ETA-9089  Multiple Locations  Multiple Alternative Requirements  “Magic Language” check box Number of employees in area for employment

Klasko, Rulon, Stock & Seltzer, LLP News from BALCA Offering Substantive Review of “Gotcha” Denials  Lack of “Magic Language”  Undated Signature Generally Upholding Deadlines and Filing Procedures Open to Reviewing Documentation Beyond the Audit File Concerned with Due Process over “Efficiency”

Klasko, Rulon, Stock & Seltzer, LLP Questions?

H. Ronald Klasko, Esq. Impact Impact of Employer Cutbacks on Employers and Employees

Klasko, Rulon, Stock & Seltzer, LLP Termination or Layoff H-1B Employees Employer actions  Withdraw LCA  Notify CIS  Offer return costs of transportation Employee airfare only Only if leaves U.S.? Employer options and strategies

Klasko, Rulon, Stock & Seltzer, LLP Consequences to Employer of Failure to Take These Actions  No “bona-fide termination”  “Benching” – continuing wage obligation Termination or Layoff H-1B Employees (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Consequences to Employee  Out of status immediately  Revocation of H-1B  Loss of portability?  Impact of severance pay  Eligibility to extend status? Termination or Layoff H-1B Employees (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP TARP Recipient Employers  Must be no U.S. workers “displaced”  No layoff in “essentially equivalent job”  90 days before or after filing H-1B petition  Same “area of employment” Termination or Layoff H-1B Employees (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Termination or Layoff Other Nonimmigrant Employees No penalty for failure to notify CIS No back pay issues Employee out of status OPT limited to 120 days of unemployment

Klasko, Rulon, Stock & Seltzer, LLP Termination or Layoff Labor Certification Applications Layoff of labor certification beneficiary  Process terminates unless possible future employment

Klasko, Rulon, Stock & Seltzer, LLP Termination or Layoff Labor Certification Applications Layoff of U.S. Workers  No impact unless termination other than for cause Layoff of “potentially qualified” U.S. workers Layoff in related occupation  Majority of “essential duties” Layoff in “area of intended employment” Layoff “within 6 months of filing”  Within 6 months before filing?  Within 6 months after filing? (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Termination or Layoff Labor Certification Applications Layoff of U.S. Workers  Employer can still proceed with labor certification, but must Notify laid off employees of job opening Consider their qualifications Document notification and consideration  Notify all and consider only those interested?  Consider all and notify only potentially qualified? (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Leave of Absence H-1B Employees Requested by employee  No DOL/wage issues  Employee status depends on “expectation of continuing employment” Requested by employer  Continuing wage obligation – “benching”

Klasko, Rulon, Stock & Seltzer, LLP Leave of Absence H-1B Employees Consequences to Employee  No regulation  Does employer/employee relationship continue to exist?  Is there an expectation of continuing employment? (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Leave of Absence Other Nonimmigrant Employees Notify CIS?  “Material change”?  No penalty for failure to notify Consequences to employee same as H-1B

Klasko, Rulon, Stock & Seltzer, LLP Freeze Impact on labor certification application?  No specific rules  “Good faith recruitment”  Exceptions to hiring freeze

Klasko, Rulon, Stock & Seltzer, LLP Reduction in Salary H-1B employees  Violation if below prevailing wage  Violation if U.S. workers not reduced  No violation if above prevailing wage and U.S. workers reduced No new LCA required Other nonimmigrant employees  Issue of “material change”

Klasko, Rulon, Stock & Seltzer, LLP Reduction in Salary Labor Certification Applications Can proceed if still offer prevailing wage when employee gets LPR What if employer offers lower wage on I-140?

Klasko, Rulon, Stock & Seltzer, LLP Can proceed if still offer full time when employee gets LPR Issue of “good faith recruitment” for full-time position Reduction in Hours Labor Certification Applications

Klasko, Rulon, Stock & Seltzer, LLP Reduction In Benefits H-1B Employees  No impact if same reduction for U.S. workers Other Nonimmigrant Employees  Issue of “material change” Labor Certification Application  No impact if same reduction for U.S. workers

Klasko, Rulon, Stock & Seltzer, LLP Reduction in Salary or Benefits Consequences to Employee No definitive USCIS opinion Strong basis for position that no impact on employee’s status

Klasko, Rulon, Stock & Seltzer, LLP Questions? Questions?

Elise A. Fialkowski, Esq. Worksite Enforcement

Klasko, Rulon, Stock & Seltzer, LLP Overview Enforcement in a New Administration I-9 and H-1B enforcement State & Local Laws E-Verify Rule for Federal Contractors Practical E-Verify Compliance Considerations Electronic I-9 programs

Klasko, Rulon, Stock & Seltzer, LLP Enforcement in a New Administration I-9 Compliance - unauthorized workers  Raid v. audit/investigation  Focus on Employers  Pledge to continue active criminal prosecution of employers  Pledge to issue detailed investigation protocols  Support E-Verify/system improvements

Klasko, Rulon, Stock & Seltzer, LLP Enforcement in a New Administration H-1B/LCA Compliance  Pledge to aggressively enforce “wage theft”  Substantial increase in investigative staff  Expect even greater number of audits/investigations  “Fraud” profile/criminal enforcement (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Impact of State and Local Laws Expect continued State legislation targeting unauthorized employment  As of June 30, immigration related bills introduced in the states Companies that knowingly hire unauthorized workers may face:  Loss of business licenses  Loss of government grants and contracts

Klasko, Rulon, Stock & Seltzer, LLP Impact of State and Local Laws State E-Verify Laws  E-Verify Required by all employers: AZ, MS, SC*  Contractors: CO, GA, MN, MS, MO, NE, OK, RI, SC, UT  Public employers: AZ, GA, MN, MS, MO, NC, NE, OK, RI, SC, UT  Note: ongoing litigation/injunctions (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP E-Verify Rule for Federal Contractors - Overview Amends FAR to implement Executive Order requiring federal contractors to use E-Verify Final rule effective date postponed to May 21, 2009 Contracts must contain the “E-Verify clause”/be modified to contain Requires E-Verify query of  All new employees  All existing employees assigned to the contract  Or 180 day option for all existing employees  University option: new hires and existing employees assigned to contract

Klasko, Rulon, Stock & Seltzer, LLP E-Verify Rule for Federal Contractors - Timeline Applies only to  Qualifying contracts issued after 5/21/09  IDIQ contracts w/6 month & substantial performance after 5/21/09 Enroll in E-Verify within 30 days of contract award 90 day phase-in for E-Verify queries

Klasko, Rulon, Stock & Seltzer, LLP Federal Contracts & Subcontracts Subject to the Rule Only Prime Acquisition Contracts subject to FAR with  Period of performance longer than 120 days AND  Value above $100,000 prime acquisition threshold

Klasko, Rulon, Stock & Seltzer, LLP Federal Contracts & Subcontracts Subject to the Rule Excluded:  Contracts for COTS items (or minor modif. To COTS) and related services  Grants  Cooperative agreements  Contracts where all work performed outside US  Contracts not meeting 120 day or $100,000 req.  Unmodified contracts existing prior to 1/15/09 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Federal Contracts & Subcontracts Subject to the Rule Subcontracts  Must flow from the prime contract with E-Verify clause  Only for Subcontracts for Services or Construction With a value over $3,000 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Brief Overview Web-based system checks I-9 information against social security and DHS databases Requires Employer to agree to MOU w/significant obligations Not an I-9 substitute Queries must be conducted within 3 days after hire Employer reluctance -100,000 users as of Jan. 09 New developments/improvements

Klasko, Rulon, Stock & Seltzer, LLP Practical. Compliance Considerations Audit of older I-9s I-9 issues with existing employees under Federal Contractor Rule Who conducts queries I-9 and E-Verify policies Training Electronic I-9 program

Klasko, Rulon, Stock & Seltzer, LLP Electronic I-9 Program Many providers, most link to E-Verify system  Some providers act as E-Verify Designated Agents  Others link to system but allow company to control E-Verify query such as Immigration Tracker I-9  Web-based v. software USCIS reports they are developing their own Electronic I-9

Klasko, Rulon, Stock & Seltzer, LLP Electronic I-9 Program Benefits vary depending upon provider and functionality of program  Time-saving: data does not have to be reentered for E-Verify  Alerts as to missing fields, inconsistent information and dates  Tickler system for reverification  Links to HR system  Tools to easily purge I-9s consistent with retention requirements  Paperless “green option” — electronic signature, electronic retention and scanning (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Electronic I-9 Program  Help features/pop-ups to assist with process/explain documents  Reminder s to designated HR staff  Customization-configured to company’s business processes  Immediate updates with changes in Forms/policy  Support for program/E-Verify (cont’d)

Richard R. Rulon, Esq. New Players, Same Game

Klasko, Rulon, Stock & Seltzer, LLP Recent Developments Small Extensions of Expiring Programs  EB-5  E-Verify  Religious Workers  Physician Waivers Restrictionist Amendment to Stimulus  TARP recipients restricted from hiring H’s

Klasko, Rulon, Stock & Seltzer, LLP Prospects for Comprehensive Immigration Reform Most Members still in favor of comprehensive, not piecemeal, reforms House will likely take leadership on issue from Senate Obama administration committed to CIR and building public support Restrictionist/Populist Reaction likely to be strong again Considered by Fall 2009?

Klasko, Rulon, Stock & Seltzer, LLP

Speaker Contact Information H. Ronald Klasko, Esq.  Tele:  Fax:  William A. Stock, Esq.  Tele:  Fax:  cont’d…

Klasko, Rulon, Stock & Seltzer, LLP Speaker Contact Information Suzanne B. Seltzer, Esq.  Tele:  Fax:  Elise A. Fialkowski, Esq.  Tele:  Fax:  cont’d…

Klasko, Rulon, Stock & Seltzer, LLP Speaker Contact Information Richard R. Rulon, Esq.  Tele:  Fax:  Visit us online at

Klasko, Rulon, Stock & Seltzer, LLP Thank you Please join us for lunch Thank you for attending