APRIL 2010

The law firm of Klasko, Rulon, Stock & Seltzer, LLP is pleased to present our April 2010 newsletter covering

immigration topics that are of interest to our clients.

Headlines:

1. Few H-1 Petitions Filed So Far – USCIS has received approximately 16,025 H-1B petitions counting toward the 65,000 cap.

2. 2010 Annual Spring Seminar – Podcasts will be available soon!

3. DHS Announces E-Verify Initiatives – The initiatives include a new agreement with the Department of Justice to streamline the adjudication process in cases of E-Verify misuse and discrimination.

4. Department of Justice Files Suit Against John Jay College Alleging Discriminatory I-9 Practices – The DOJ is alleging that the college engaged in a pattern of discrimination by asking over 100 employees to provide documentation that was beyond what is required by Form I-9.

5. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations – The Q&A explains the cap-gap and other details.

6. DHS Adds Greece to VWP – Greek nationals can travel under the VWP beginning April 5, 2010.

7. USCIS Extends Deferred Enforced Departure for Liberians – The sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension.

8. USCIS Reminds Chilean Nationals of Available Benefits – In light of the recent natural catastrophes in Chile, USCIS reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request.

9. USCIS Releases Guidance on Adjudicating P-2 Petitions – In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

10. Government Agency Links

11. New Publications and Items of Interest

12. Klasko News – Chambers Global Rankings, awards, speaking engagements, publications, and more.

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1. Few H-1B Petitions Filed So Far

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2010, that it continues to accept H-1B nonimmigrant petitions subject to the fiscal year (FY) 2011 cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master's degree or higher educational exemption.

According to the count on www.uscis.gov, USCIS has received approximately 16,025 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 6,739 petitions for individuals with advanced degrees. This is lower than the number of H-1B petitions USCIS had received by the same date in 2009. If this trend continues, H-1B numbers may be available for some time.

When USCIS receives the necessary number of petitions to meet the cap, it will issue a public update that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window of April 1-7, 2010, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Employers interested in sponsoring foreign nationals in the H-1B category for the fiscal year 2011 should contact their Klasko Law attorney.

2. 2010 Annual Spring Seminar

Our annual Spring Seminar, “KRSS Spring Training: How to Win When the Government is Playing Hardball,” was held on April 13, 2010 at the Union League of Philadelphia. Topics covered included employer compliance (site visits, I-9/LCA inspection and E-Verify), H-1B developments, PERM/I-140 updates, EB-1s, legislative developments, iCert and prevailing wages, among other hot topics.

Podcasts of each session will be available on our website, www.klaskolaw.com, soon.

If you would like us to present an abbreviated version of this seminar or any program at your organization, please contact Ron Klasko at rklasko@klaskolaw.com.

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3. DHS Announces E-Verify Initiatives

The Department of Homeland Security (DHS) announced a trio of E-Verify initiatives on March 17, 2010, including (1) a new agreement with the Department of Justice intended to streamline the adjudication process in cases of E-Verify misuse and discrimination; (2) an informational telephone hotline for workers seeking E-Verify information; and (3) new training videos in English and Spanish on E-Verify procedures and policies, employee rights, and employer responsibilities.

The Memorandum of Agreement signed between USCIS and the Department of Justice's Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes a protocol between USCIS and the Department of Justice for referring matters that fall within the agencies' respective jurisdictions.

The USCIS E-Verify help line will offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781.

The two new educational training videos were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at http://www.dhs.gov/e-verify and http://www.youtube.com/ushomelandsecurity.

4. Department of Justice Files Suit Against John Jay College Alleging Discriminatory I-9 Practices

As further evidence of increased enforcement efforts by the Department of Justice (“DOJ”), its Office of Special Counsel for Unfair Immigration-Related Employment Practices (“OSC”) has filed suit alleging that John Jay College (“John Jay”) discriminated against non-US citizens by requiring them to provide more documentation of work authorization than is required for the purposes of the Form I-9. This type of violation is often referred to as document abuse.

In one example cited, an non-citizen worker presented a driver’s license and an unrestricted social security card, which are valid List B and List C documents, respectively, for the purposes of Form I-9. According to the allegations, however, these documents were not accepted, and the school demanded that a green card also be provided. The employee did not provide a green card, and she was ultimately terminated.

The lawsuit alleges that John Jay engaged in a pattern and practice of discrimination, as at least 103 other people were also required to provide documentation beyond what was required. The lawsuit seeks penalties of $1100 for each individual, in addition to compensation for each person who was impacted by the alleged discriminatory practice.

This recent development follows the recent agreement between the DOJ/OSC and United States Citizenship and Immigration Services (“USCIS”) to share E-Verify information. Specifically, under the agreement, the USCIS will share data obtained from queries run through E-Verify with OSC, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act. USCIS will also provide

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employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.

In light of this recent lawsuit, and the recent information sharing agreement, it is clear that the issue of discrimination in employment verification is a focus of both USCIS and DOJ. Employers must take all steps to ensure that employees responsible for I-9 completion, and for E-Verify queries, are aware of the anti-discrimination provisions of the Immigration and Nationality Act. These steps include not only training employees on the “nuts and bolts” of these processes, but also training related to potential discrimination claims as well.

5. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations

U.S. Citizenship and Immigration Services (USCIS) released a Q&A on April 2, 2010, that addresses the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2010, under the fiscal year (FY) 2011 H-1B cap.

The Q&A notes that an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary's services or training. As a result, the earliest date that an employer can file an H-1B petition for the following fiscal year is April 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the U.S., apply for an H-1B visa at a consular post abroad, and then seek readmission to the U.S. in H-1B status for the dates reflected on the approved H-1B petition.

H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student's authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student's H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to prepare for and depart the U.S.

USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”

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6. DHS Adds Greece to VWP

On March 9, 2010, the Department of Homeland Security designated Greece as a member of the Visa Waiver Program (VWP). Greek nationals can travel under the VWP beginning April 5, 2010. Potential Greek travelers may apply for travel authorization approval under the Electronic System for Travel Authorization (ESTA) beginning immediately. ESTA approval is now required for all VWP travelers wishing to enter the U.S. DHS published a final rule on the designation of Greece on March 31, 2010.

7. USCIS Extends Deferred Enforced Departure for Liberians

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) automatically extended employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED) through September 30, 2010, following President Barack Obama's announcement of his decision to extend DED through September 30, 2011, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. USCIS said that the sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension and for USCIS to complete processing and issuance of those new EADs.

Although DED was scheduled to end for Liberian nationals on March 31, 2010, President Obama determined that there are compelling foreign policy reasons to continue deferring enforced departure from the U.S. for eligible Liberian nationals presently living in the U.S. under the existing grant of DED for 18 additional months.

Certain individuals are ineligible for DED, USCIS noted, including Liberians who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED; certain criminals; persons subject to the mandatory bars to TPS; and persons whose removal is in the interest of the U.S.

In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS published a notice in the Federal Register on March 30, 2010, with instructions on how to obtain employment authorization for the remainder of the DED extension. The automatic extension covers EADs issued on Form I–766, Employment Authorization Document, bearing an expiration date of March 31, 2010. These EADs must also bear the notation “A–11” on the face of the card under “Category.”

8. USCIS Reminds Chilean Nationals of Available Benefits

In light of the recent earthquakes in Chile, U.S. Citizenship and Immigration Services (USCIS) recently reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request. Options may include the grant of an application for change or extension of nonimmigrant status on behalf of a Chilean national who is currently in the U.S., “even in cases where the request is submitted after the individual's authorized period of admission has expired;” expedited adjudication and approval, where possible, of requests

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for off-campus employment authorization due to severe economic hardship for F-1 students; and expedited issuance of employment authorization where appropriate, among others.

9. USCIS Releases Guidance on Adjudicating P-2 Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to the field to provide guidance on processing and adjudicating Form I-129, Petition for Nonimmigrant Worker, filed on behalf of P-2 nonimmigrants. In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

The memo states that a petitioner must submit evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of the U.S. and foreign artists or entertainers. Given that the Service Centers possess the entire record, USCIS said, they are capable of determining if the reciprocal agreement meets the regulatory requirements. Effective immediately, Service Centers are not required to contact Headquarters if they encounter a reciprocal agreement not previously approved.

Because there is no requirement that P-2 entertainers be of exceptional ability, supporting documents are limited to basic items: the consultation, a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.

Four P-2 reciprocal agreements have been negotiated: (1) between the American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada); (2) between Actors' Equity Association (U.S.) and the Canadian Actors' Equity Association; (3) between Actors' Equity Association (U.S.) and the British Actors' Equity Association; and (4) between the International Council of Air Shows and the Canadian Air Show Association. If a reciprocal agreement is submitted other than these four, USCIS said, the adjudicator must review the agreement to determine if the agreement adheres to the regulatory standard. A list of any new reciprocal agreements is maintained at Headquarters.

10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

• USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

• Department of Labor processing times and information on backlogs:

http://www.foreignlaborcert.doleta.gov/times.cfm

• Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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11. New Publications of Interest

New USCIS blog. U.S. Citizenship and Immigration Services (USCIS) has launched The Beacon, the agency's official blog and newest tool that provides immigration-related information and “fosters an open dialogue with the public.” USCIS said The Beacon is intended to provide an important resource for information about USCIS as well as “a forum through which readers can engage USCIS staff and others who are interested in immigration and naturalization issues.” USCIS said readers “are encouraged to submit comments, ideas, concerns, and constructive criticism.” USCIS will review all comments before posting. Detailed guidance is provided on the blog under the comment policy.

H-1B supply and demand in 2010 and beyond. The National Foundation for American Policy (NFAP) has released a study, “H-1B Visas By the Numbers: 2010 and Beyond,” which concludes that demand for H-1Bs will contribute to employers likely reaching the annual cap in the new fiscal year. “The supply of H-1B visas has been exhausted during or before each of the past seven fiscal years, often leaving employers with no choice but to hire skilled foreign nationals outside the United States or see these scientists, engineers and professionals lost to competitors overseas,” said NFAP Executive Director Stuart Anderson. With the annual flow of H-1Bs representing only 0.06 percent of the U.S. labor force in 2009, the study notes, arguments that H-1B professionals overwhelm the U.S. workforce are not supported by the facts. Surveys of Indian and Chinese professionals who have left the U.S. show that visa constraints played a role in their decision to leave. This exodus, the study argues, will continue absent immigration law reform. Liberalizing H-1B and green card limitations would help employers innovate and create more jobs in the U.S., the study concludes.

12. Klasko News

News and Noteworthy

The Chambers Global 2010 ratings have been released. Once again, Klasko, Rulon, Stock & Seltzer is ranked as a top tier immigration law firm. This year, only 4 other firms are listed, and we are the only firm that is not part of a bigger national or international firm. The firm has achieved this top ranking in Chambers Global for the past five consecutive years. KRSS is

particularly proud of this accomplishment as rankings are based solely on reviews and interviews by clients and other attorneys.

On March 31, 2010, H. Ronald Klasko (Ron) participated in a meeting of USCIS Director Mayorkas with the Alliance of Business Immigration Lawyers. Ron focused on the recent Neufield Memorandum dealing with new H-1B policies.

Kate Kalmykov (Kate) has been elected Chair of the Programs Subcommittee of the American Bar Association Immigration Litigation Committee. For more information about the committee, please click here.

Elise Fialkowski (Elise) coordinated Pennsylvania AILA attorneys to participate in AILA’s National Day of Action, where she organized meetings between Pennsylvania immigration

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attorneys and U.S. Congressman. On March 25, 2010, Elise and H. Ronald Klasko (Ron) attended National Day of Action and met with U.S. Congressman to discuss issues in immigration legislation.

Upcoming Speaking Engagements

On May 7, 2010, William A. Stock (Bill) will discuss “R, H & L Site Visits and Document Enforcement” at the Minnesota/Dakotas AILA Chapter Conference. Bill will discuss how to counsel employers facing site visits from USCIS to verify immigration filings, and on how to handle DOL enforcement proceedings.

Recent Speaking Engagements On April 28, 2010, H. Ronald Klasko (Ron) discussed “Immigration Options for Scholars and Researchers” at Thomas Jefferson University. Ron talked about H-1B Visas and Quota, J-1 Visa and Waivers, O-1 Visa and Permanent Residence Status. To view the PowerPoint presentation used at this talk, click here.

On April 23, 2010, Suzanne Seltzer (Suzanne) discussed “Navigating Immigration and Visa Issues: A Primer for Postdocs and Young Scientist” at UMDNJ – Graduate School of Biomedical Sciences. Suzanne discussed immigration options for students and researchers studying or working in the U.S. To view the PowerPoint presentation used at this talk, click here.

On April 16, 2010, William A. Stock (Bill) discussed “Advanced H-1B and L Issues” at the Texas AILA Chapter Spring Conference. Bill discussed the handling of current challenges for employers of H and L nonimmigrants, particularly wage issues, documenting additional worksites, and avoiding liability in H and L petitions.

On April 14, 2010, H. Ronald Klasko (Ron) in conjunction with Janice M. Bogan, Director, Office of International Exchange Services (OIES) at Thomas Jefferson University in Philadelphia and Michele Stelljes, Immigration Specialist and Responsible Officer for The

Methodist Hospital System in Houston, Texas hosted a webinar entitled “H-1B and Prevailing Wage Issues for Medical Residents and Postdoctoral Fellows” to members of NAFSA’s Healthcare Institutional Interest Group (HIIG) and Postdoc Special Interest Group (PDSIG). Ron, Janice and Michele provided information on prevailing wages for medical residents and postdocs. For more information of this webinar, please contact Ron at rklasko@klaskolaw.com.

On April 8, 2010, Suzanne Seltzer (Suzanne) hosted an AILA webinar in conjunction with Deborah J. Notkin, AILA Past President, New York, NY and Ian D. Wagreich, Chicago, IL entitled “Traversing the New Prevailing Wage Determination Process.” The panel tackled the ins and out of the new iCERT procedures and offered strategies for crafting job descriptions and requirements to most accurately reflect the proper DOL job label. For more information on this webinar, please contact Suzanne at sseltzer@klaskolaw.com.

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On April 6, 2010, H. Ronald Klasko (Ron) discussed “Immigration Options for Students and Scholars” at Temple University. The seminar addressed various H-1B options, other visa options as well as permanent resident status. The PowerPoint presentation is available here.

On March 30, 2010, H. Ronald Klasko (Ron) discussed “Visa and Permanent Residence Options for MBA Students” at the Wharton School of the University of Pennsylvania. Ron discussed various H-1B options, other visa options as well as permanent resident status. To view the PowerPoint presentation used at this talk, click here.

On March 18, 2010, H. Ronald Klasko (Ron) discussed “Post-Residency Options for International Medical Graduates” at Hahnemann University Hospital. The seminar addressed current issues in H-1B, J-1, O-1 visas and permanent resident status. To PowerPoint presentation is available here.

Recent Publications H. Ronald Klasko (Ron) published an article entitled “Green Cards Through Investment: A Solution for Asian Buyers” in the Spring 2010 edition of Asian Real Estate. The article addresses the regional center EB-5 program and its benefits for people who want to buy a property and live in the U.S. For more information on this, please contact Ron at rklasko@klaskolaw.com.

Jennifer Hermansky (Jen) published an article entitled “Advising Immigrant Defendants in Pa. after Padilla” in the April 21, 2010 edition of the Legal Intelligencer. The article discusses the landmark United States Supreme Court case of Padilla v. Kentucky, which holds that criminal defense counsel must warn non-citizen defendants of the deportation consequences of a guilty plea. For a copy of the article, please contact Jen at jhermansky@klaskolaw.com.

Disclaimer/Reminder: This newsletter does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed. Copyright © 2009 Alliance of Business Immigration Lawyers and Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.