current immigration issues for healthcare institutions pennsylvania bar institute h. ronald klasko,...

Current Immigration Issues for Healthcare Institutions

Pennsylvania Bar Institute

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLPKlasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

[email protected] www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

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:

DoctorsNursesE-Verify


Doctors

Choice of visaJ-1H-1BO-1Other


Doctors (cont’d)

J-1Visa Procedure Timing Length Requirements


Doctors (cont’d)

H-1B visaProcedureTimingQuota issuesLengthRequirements


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 VisaProcedureTimingLengthRequirements


Doctors (cont’d)

Other StatusesCountry – specificEADPermanent resident


Doctors (cont’d)

Two-Year return requirementWho has it?What is it?Options

O-1 visa Waiver


Doctors (cont’d)

Waiver of Two-Year Return RequirementPersecutionExceptional 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 abilityNational interest waiver


Doctors (cont’d)

Institutional Liability IssuesWagesTerminationsRecordkeeping


Nurses

Visa OptionsOften no good short- term optionH-1B H-1CTN-1J-1F-1H-2B


Nurses (cont’d)

Permanent Residence OptionsProcedureTiming

quota delays

Licensing Credentialing

CGFNSVisa Screen


OverviewOverviewHow 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

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

(cont’d)


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


Results

Tentative Non-Confirmation – YELLOW LIGHT System cannot perform immediate match NOT grounds for termination Follow up steps:

1. Double check input data to ensure no errors (if errors are found, run SSA query again)

2. Record case verification number

3. Inform employee of tentative non-confirmation

(cont’d)


Results- TNC

4. Inform employee he/she has the right to contest non-confirmation with SSA or DHS

5. If employee does not contest – YOU MUST TERMINATE EMPLOYMENT

6. 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

7. 10 Federal Working Days after referral, query the system

(cont’d)


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

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

(cont’d)


Practical Compliance Considerations

Audit of older I-9sElectronic I-9 programEmployer Method v. Designated AgentWho conducts queries-multiple locations I-9 and E-Verify PoliciesTraining

Issues w/re existing employees


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


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

[email protected]

215-825-8600 (Philadelphia)

212-796-8840 (New York)

www.klaskolaw.com

current immigration issues for healthcare institutions pennsylvania bar institute h. ronald klasko,...

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