Immigration 2009:
Navigating Stormy Seas
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 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.
Klasko, Rulon, Stock & Seltzer, LLP
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.
Klasko, Rulon, Stock & Seltzer, LLP
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.
Klasko, Rulon, Stock & Seltzer, LLP
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).
Klasko, Rulon, Stock & Seltzer, LLP
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.
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Immigration 2009:
Navigating Stormy Seas
Agenda




(cont’d)
Worksite Enforcement
Legislative Update: New Players, Same Game
Questions & Answers
Lunch Buffet
Klasko, Rulon, Stock & Seltzer, LLP
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
Charting a New Course

Transformation

Online account based system
 IIN – “Immigration Identification Number”
 Move towards paperless system
 Move towards consolidated information

Knowledge management
Klasko, Rulon, Stock & Seltzer, LLP
Charting a New Course
 Bispecialization
5
(cont’d)
regional service centers
– non immigrant petitions
 TSC/NSC – immigrant petitions
 NBC – family based petitions
 VSC/CSC
 Flexibility
to transfer cases to center with
most resources
Klasko, Rulon, Stock & Seltzer, LLP
Service Centers Adrift
 “Pilots” following their own course
 “The
Plus” at TSC
 90 day AOS at NBC (so no EAD/AP)
 Reliance on contractors
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Heading into the Rocks

H-1B cap exemption
 “Affiliated”
with
 Employed “at”

L-1B
 Functional
manager
 Specialized knowledge
Klasko, Rulon, Stock & Seltzer, LLP
Heading into the Rocks
(cont’d)
Re-adjudication of established facts
 Less time to respond to Requests for
Evidence (RFE)
 Denials without RFEs

Klasko, Rulon, Stock & Seltzer, LLP
TIDE Is Out
EDGE-AACRO database for degree
equivalency
 Processing time reports
 Online Status

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Department of Labor Update:
Temporary Programs
William A. Stock, Esq.
AILA DOL Liaison Committee
Introduction




New iCERT Portal – Mandatory for LCA filing
H-1B “Dependence”
Prevailing Wage Issues
DOL Enforcement Procedures
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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”
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Department of Labor Update:
Permanent Programs
William A. Stock, Esq.
AILA DOL Liaison Committee
Introduction
What’s New In Processing Time
 Audits and Their Results
 New iCERT Portal for PERM
 News from BALCA

Klasko, Rulon, Stock & Seltzer, LLP
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)

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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”

Klasko, Rulon, Stock & Seltzer, LLP
Questions?
Klasko, Rulon, Stock & Seltzer, LLP
Impact of
Employer Cutbacks
on Employers and Employees
H. Ronald Klasko, Esq.
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

Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
Termination or Layoff
H-1B Employees

Consequences to Employee

Out of status immediately
 Revocation of H-1B
 Loss of portability?
 Impact of severance pay
 Eligibility to extend status?
Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
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”

Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
Termination or Layoff
Labor Certification Applications

Layoff of labor certification beneficiary

Process terminates unless possible future
employment
Klasko, Rulon, Stock & Seltzer, LLP
Termination or Layoff
Labor Certification Applications

Layoff of U.S. Workers

(cont’d)
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?

Klasko, Rulon, Stock & Seltzer, LLP
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?

Klasko, Rulon, Stock & Seltzer, LLP
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”
Klasko, Rulon, Stock & Seltzer, LLP
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?
Klasko, Rulon, Stock & Seltzer, LLP
Leave of Absence
Other Nonimmigrant Employees

Notify CIS?
“Material change”?
 No penalty for failure to notify


Consequences to employee same as H-1B
Klasko, Rulon, Stock & Seltzer, LLP
Freeze

Impact on labor certification application?

No specific rules
 “Good faith recruitment”
 Exceptions to hiring freeze
Klasko, Rulon, Stock & Seltzer, LLP
Reduction in Salary

H-1B 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”
Klasko, Rulon, Stock & Seltzer, LLP
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?

Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
Reduction In Benefits

H-1B Employees


Other Nonimmigrant Employees


No impact if same reduction for U.S. workers
Issue of “material change”
Labor Certification Application

No impact if same reduction for U.S. workers
Klasko, Rulon, Stock & Seltzer, LLP
Reduction in Salary or Benefits
Consequences to Employee
No definitive USCIS opinion
 Strong basis for position that no impact on
employee’s status

Klasko, Rulon, Stock & Seltzer, LLP
Questions?
Klasko, Rulon, Stock & Seltzer, LLP
Worksite
Enforcement
Elise A. Fialkowski, Esq.
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

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
Impact of State and Local Laws

Expect continued State legislation targeting
unauthorized employment


As of June 30, 2008 1404 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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Federal Contracts &
Subcontracts Subject to the Rule

Excluded:

(cont’d)
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
Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Electronic I-9 Program
(cont’d)
Help features/pop-ups to assist with process/explain
documents
 Reminder emails to designated HR staff
 Customization-configured to company’s business processes
 Immediate updates with changes in Forms/policy
 Support for program/E-Verify

Klasko, Rulon, Stock & Seltzer, LLP
New Players,
Same Game
Richard R. Rulon, Esq.
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
Klasko, Rulon, Stock & Seltzer, LLP
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?
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Speaker Contact Information


H. Ronald Klasko, Esq.

Tele: 215.825.8608

Fax: 215.825.8699

E-mail: rklasko@klaskolaw.com
William A. Stock, Esq.

Tele: 215.825.8607

Fax: 215.825.8699

E-mail: wstock@klaskolaw.com
cont’d…
Klasko, Rulon, Stock & Seltzer, LLP
Speaker Contact Information


Suzanne B. Seltzer, Esq.

Tele: 212.796.8846

Fax: 212.297.1799

E-mail: sseltzer@klaskolaw.com
Elise A. Fialkowski, Esq.

Tele: 215.825.8647

Fax: 215.825.8699

E-mail: efialkowski@klaskolaw.com
cont’d…
Klasko, Rulon, Stock & Seltzer, LLP
Speaker Contact Information
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Richard R. Rulon, Esq.
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Tele: 215.825.8612
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Fax: 215.825.8699
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E-mail: rrulon@klaskolaw.com
Visit us online at www.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP
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Klasko, Rulon, Stock & Seltzer, LLP