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 19103 New York, NY 10017 215.825.8600 212.796.8840 www.klaskolaw.com

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.

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 Americaand also as a “Pennsylvania Super Lawyer.” • Rich is a graduate of the University of Pennsylvania Law School.

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 inThe 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.

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.

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).

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.

Immigration Challenges:Quotas, Delays, and EnforcementAgenda • Introduction • Legislative and Regulatory Update • Trainees • Labor Certification Update • Upgrading to a Higher Preference Category

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

Legislative and Regulatory Update Richard R. Rulon, Esq.

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

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

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

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

Employment Relief Legislation House • Rep. Smith (R-TX) introduced H.R. 5642 which would increase the numerical limitation with respect to H-1Bs for fiscal years 2008 and 2009 • Rep. Giffords (D-AZ) introduced H.R. 5630 which would increase the numerical limitation on H-1Bs and includes new protections for U.S. workers

Employment Relief Legislation (cont’d) House • Rep. Kennedy (D-RI) introduced H.R. 5634 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

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)

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

Prospects forCIR 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

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

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

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

Trainees Elise A. Fialkowski, Esq.

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)

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

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

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

F-1 Optional Practical Training: New “STEM Extension” • 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 (cont’d)

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

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)

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

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

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

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

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

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?

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)

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

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

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

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

What are Preference Categories? 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 (cont’d)

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)

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

Where Are We Now April 2008 Visa Bulletin – Empl. Based

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

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

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

Challenges: Quotas, Delays, and Enforcement