1. Immigration 2009: Navigating Stormy Seas
w w w . k l a s k o l a w . c o m

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 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.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. Immigration 2009: Navigating Stormy Seas Agenda
(cont’d)
Worksite Enforcement
Legislative Update: New Players, Same Game
Questions & Answers
Lunch Buffet

9. Service Center Report Traversing Inland Waters
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

10. Charting a New Course Transformation Online account based system
IIN – “Immigration Identification Number”
Move towards paperless system
Move towards consolidated information
Knowledge management

11. Charting a New Course Bispecialization 5 regional service centers
(cont’d)
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

12. Service Centers Adrift
“Pilots” following their own course
“The Plus” at TSC
90 day AOS at NBC (so no EAD/AP)
Reliance on contractors

13. 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

14. Heading into the Rocks H-1B cap exemption L-1B “Affiliated” with
Employed “at”
L-1B
Functional manager
Specialized knowledge

15. Heading into the Rocks Re-adjudication of established facts
(cont’d)
Re-adjudication of established facts
Less time to respond to Requests for Evidence (RFE)
Denials without RFEs

16. TIDE Is Out EDGE-AACRO database for degree equivalency
Processing time reports
Online Status

17. 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

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

20. Introduction New iCERT Portal – Mandatory for LCA filing
H-1B “Dependence”
Prevailing Wage Issues
DOL Enforcement Procedures

21. 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

22. 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

23. H-1B “Dependents Employers” Attestations
(cont’d)
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

24. H-1B “Dependents Employers” Attestations
(cont’d)
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. 2011
Includes many programs other than direct aid, including voluntary participation helping government purchase “toxic assets”

25. 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

26. 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

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

29. Introduction What’s New In Processing Time Audits and Their Results
New iCERT Portal for PERM
News from BALCA

30. 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)

31. 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

32. 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

33. 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”

34. Questions?

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

36. 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

37. Termination or Layoff H-1B Employees
(cont’d)
Consequences to Employer of Failure to Take These Actions
No “bona-fide termination”
“Benching” – continuing wage obligation

38. Termination or Layoff H-1B Employees
(cont’d)
Consequences to Employee
Out of status immediately
Revocation of H-1B
Loss of portability?
Impact of severance pay
Eligibility to extend status?

39. Termination or Layoff H-1B Employees
(cont’d)
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”

40. 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

41. Termination or Layoff Labor Certification Applications
Layoff of labor certification beneficiary
Process terminates unless possible future employment

42. Termination or Layoff Labor Certification Applications
(cont’d)
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?

43. Termination or Layoff Labor Certification Applications
(cont’d)
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?

44. 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”

45. Leave of Absence H-1B Employees
(cont’d)
Consequences to Employee
No regulation
Does employer/employee relationship continue to exist?
Is there an expectation of continuing employment?

46. Leave of Absence Other Nonimmigrant Employees
Notify CIS?
“Material change”?
No penalty for failure to notify
Consequences to employee same as H-1B

47. Freeze Impact on labor certification application? No specific rules
“Good faith recruitment”
Exceptions to hiring freeze

48. Reduction in Salary H-1B employees Other nonimmigrant 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”

49. 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?

50. Reduction in Hours Labor Certification Applications
Can proceed if still offer full time when employee gets LPR
Issue of “good faith recruitment” for full-time position

51. Reduction In Benefits H-1B Employees Other Nonimmigrant Employees
No impact if same reduction for U.S. workers
Other Nonimmigrant Employees
Issue of “material change”
Labor Certification Application

52. Reduction in Salary or Benefits Consequences to Employee
No definitive USCIS opinion
Strong basis for position that no impact on employee’s status

53. Questions?

54. Worksite Enforcement
Elise A. Fialkowski, Esq.

55. 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

56. 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

57. Enforcement in a New Administration
(cont’d)
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

58. 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

59. Impact of State and Local Laws
(cont’d)
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

60. 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

61. 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

62. 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

63. 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)

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

65. 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

66. 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

67. 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

68. Electronic I-9 Program
(cont’d)
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

69. Electronic I-9 Program
(cont’d)
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

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

72. 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

73. 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?

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

76. Speaker Contact Information
Suzanne B. Seltzer, Esq.
Tele:
Fax:
Elise A. Fialkowski, Esq.
Tele:
Fax:
cont’d…

77. Speaker Contact Information
Richard R. Rulon, Esq.
Tele:
Fax:
Visit us online at

78. Please join us for lunch Thank you for attending