Current Immigration Issues for Healthcare Institutions Pennsylvania Bar Institute

1. 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 212.796.8840rklasko@klaskolaw.comwww.klaskolaw.com

2. H. Ronald Klasko, Esq. • Ron Klaskohas 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.

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

4. Doctors • Choice of visa • J-1 • H-1B • O-1 • Other

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

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

7. 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

8. 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

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

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

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

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

13. 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

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

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

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

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

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

19. 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

20. 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

22. 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

23. 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

24. Results • Confirmation – GREEN 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

25. Results (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

26. 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

27. 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

28. 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

29. 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

30. 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

31. E-Verify Rulefor 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

32. 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

33. 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

34. Questions ?

35. 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