Immigration
Challenges:
Quotas, Delays, and
Enforcement
Annual Seminar – April 10, 2008
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia
New York
1800 JFK Blvd., 17th Floor
Philadelphia, PA 19103
215.825.8600
317 Madison Ave. Suite 1518
New York, NY 10017
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.
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
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 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 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.
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, 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).
Klasko, Rulon, Stock & Seltzer, LLP
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.
Klasko, Rulon, Stock & Seltzer, LLP
Immigration Challenges:
Quotas, Delays, and Enforcement
Agenda





Introduction
Legislative and Regulatory Update
Trainees
Labor Certification Update
Upgrading to a Higher Preference Category
Klasko, Rulon, Stock & Seltzer, LLP
Immigration Challenges:
Quotas, Delays, and Enforcement
Agenda
(cont’d)





Advising the Eternal Adjustment Applicant
Immigration Consequences of Criminal Activities
Dealing with Government Adjudication Delays
Worksite Enforcement
Questions & Answers
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Enforcement Legislation
Senate
(cont’d)
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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)
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Prospects for
CIR 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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
The BAD News for 2008




Increased employer sanctions
Expanded deportability
Continuing visa backlogs
Little, if any, meaningful relief for high tech and
essential workers
Klasko, Rulon, Stock & Seltzer, LLP
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 USCISissued Employment Authorization (EAD)
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
F-1 Optional Practical Training:
New “STEM Extension”
(cont’d)



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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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 nonUS work experience related to training

Maximum duration: Intern 12 months / Trainee 18 months
(limitation agriculture & hospitality & tourism 12 months for
either category)
Klasko, Rulon, Stock & Seltzer, LLP
H-3 Trainees

Formal training program required
Productive employment incidental to training
Training will qualify alien for position abroad

Training up to 2 years


Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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?
Klasko, Rulon, Stock & Seltzer, LLP
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)
Klasko, Rulon, Stock & Seltzer, LLP
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

Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Upgrading to a Higher
Preference Category
Suzanne B. Seltzer, Esq.
AILA Vermont Service Center Liaison Committee
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
What are Preference
Categories?
(cont’d)
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
Klasko, Rulon, Stock & Seltzer, LLP
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)
Klasko, Rulon, Stock & Seltzer, LLP
Why Upgrade?

Quotas
 Per
Country
 Per Preference Category

Issued in Order in which Petition Filed
(Priority Date)
Klasko, Rulon, Stock & Seltzer, LLP
Where Are We Now
April 2008 Visa Bulletin – Empl. Based
Worldwide
CHINAmainland born
INDIA
MEXICO
PHILIPPINES
1st
C
C
C
C
C
2nd
C
01DEC03
01DEC03
C
C
3rd
01JUL05
08FEB03
01OCT01
01OCT01
01JUL05
Other
Workers
01MAR02
01MAR02
01MAR02
01MAR02
01MAR02
Klasko, Rulon, Stock & Seltzer, LLP
How to Upgrade?
 Eb-3
to Eb-2
PERM
Context
 Bachelors
+ 5 years
 Master’s Degree or Higher
 Exceptional Ability
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
How to Upgrade?
(cont’d)
 Eb-2
to Eb-1
Extraordinary
 Self-Petition
 Regulatory
Criteria
 Support Letters
Klasko, Rulon, Stock & Seltzer, LLP
How to Upgrade?
(cont’d)
 Eb-2
to Eb-1
Outstanding
 Employer
Researcher
Sponsored
 University/Institution
 Private
of Higher Ed
Employer
 At least 3 full time researchers
 “Documented Accomplishments”
 Tenure Track or “Permanent” Offer
Klasko, Rulon, Stock & Seltzer, LLP
How to Upgrade?
(cont’d)
 Eb-2
to Eb-1
Outstanding
 Three
Researcher
years experience
 Recognized Internationally
 Regulatory Criteria
 Support Letters
Klasko, Rulon, Stock & Seltzer, LLP
How to Upgrade?
(cont’d)
 Eb-2
to Eb-1
Multinational
 Employer
Executive/Mgr
Sponsored
 Qualifying
Rel. between US and foreign entity
 At least One Year “Doing Business”
 One
Year in Last Three Mgr or Exec
 One Year Abroad as Mgr or Exec
Klasko, Rulon, Stock & Seltzer, LLP
What if I Can’t Upgrade

Valid Non-Immigrant Status
 Extending
H beyond 6 years
Buy back time
 Start LPR process one year in advance

 Exploring

other NIV
Eternal Adjustment Applicant
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Advising the Eternal
Adjustment Applicant
H. Ronald Klasko, Esq.
Maintenance of Nonimmigrant
Status after Filing Adjustment



H-1B, H-4, L-1, L-2
O and E
F-1, H-3 and other temporary statuses
Klasko, Rulon, Stock & Seltzer, LLP
Travel



Travel by nonimmigrant other than H-1B,
H-4, L-1, L-2
Travel by H-1B, H-4, L-1, L-2
Travel using advance parole

Travel after advance parole filed
 Travel after advance parole approved
 Timing for advance parole extensions
 Issues with multiple advance parole
documents
Klasko, Rulon, Stock & Seltzer, LLP
Extensions of H-1B or L-1 Status



Advice regarding extension of H or L
versus obtaining EAD
Length of extension
Extension of H or L status by parolee
Klasko, Rulon, Stock & Seltzer, LLP
Employment during
Adjustment Pendency



Travel with parole and work without EAD
Impact of working without authorization
after filing adjustment
Timing of extension of EAD
Klasko, Rulon, Stock & Seltzer, LLP
Spouses





Issues of H-4 working with EAD
Issues of L-2 working with EAD
Issues of H-4/L-2 where principal entered
on parole
Following to join after quota retrogression
Status of H-4/L-2 where principal works
without authorization
Klasko, Rulon, Stock & Seltzer, LLP
Children



Protecting age if child outside the US
Child over 21 when adjustment filed for
principal
Impact of quota retrogression on
concurrent adjustment for child
Klasko, Rulon, Stock & Seltzer, LLP
Questions ?
Klasko, Rulon, Stock & Seltzer, LLP
Immigration
Consequences
of Criminal
Activities
Theodore J. Murphy, Esq.
Introduction
 When Do We Care About Crimes?
 What Crimes Do We Care About?
 Arrests, Convictions, Pleas, Diversions
 Avoiding Immigration Consequences
Klasko, Rulon, Stock & Seltzer, LLP
Immigration Consequences –
When Criminal Activity Matters

ADMISSIBILITY: Eligibility to get a visa and enter
the United States and Adjustment of status

DEPORTABILITY: Causing loss of status and
subjecting one to possible deportation

NATURALIZATION: Certain Crimes prevent a
showing of “Good Moral Character”
Klasko, Rulon, Stock & Seltzer, LLP
What Criminal Activity has
Immigration Consequences?




Commission of the crime
Arrests
Diversions
Convictions
Klasko, Rulon, Stock & Seltzer, LLP
ARRESTS GENERALLY

A mere arrest can have a negative impact

Any arrest must always be admitted in all
immigration contexts

Arrests will appear in computerized records if
person was fingerprinted

No distinction between misdemeanor or felony
Klasko, Rulon, Stock & Seltzer, LLP
What is a “conviction”?
 A “conviction” means either:
 a judge or jury found the individual guilty; OR
 a pre-trial diversion program in which the alien
entered a plea of guilty/no contest as part of the
diversion program.
 Conviction still exists even if just fine or probation,
no jail
 Misdemeanor or felony distinction is unimportant
Klasko, Rulon, Stock & Seltzer, LLP
Severity of Crimes

Less Problematic – traffic citations, minors with
alcohol, DUI

More Problematic – minor theft, simple assault,
marijuana

Most Problematic - selling drugs, guns,
slavery, violent crimes, racketeering, perjury,
fraud, tax evasion, theft, alien smuggling, etc.
Klasko, Rulon, Stock & Seltzer, LLP
Domestic Offenses

Most domestic offenses, including spousal
abuse, child abuse or neglect, stalking, violation
of protective orders, can result in deportation

Domestic partners, fiancé/es, former spouses
included in spousal abuse

This includes convictions for misdemeanors and
violating civil protection orders!
Klasko, Rulon, Stock & Seltzer, LLP
Preventing
Immigration Consequences

Early Involvement of Immigration Counsel with
Criminal Counsel

Formal or Informal Diversion Programs

Plea or Sentencing Agreements to Avoid
Immigration Consequences
Klasko, Rulon, Stock & Seltzer, LLP
So What Happens
After Convictions?





Loss of status
Ineligibility for future immigration benefits
Visa delays because of fingerprint checks
Detention
Deportation
Klasko, Rulon, Stock & Seltzer, LLP
After a Conviction,
Can Anything Be Done?
 Generally, convictions cannot be “expunged” or erased
for immigration purposes
 Some waivers are available in limited circumstances
 Purpose for post conviction action: deportability vs.
mere hassle
 Certified copies of court papers
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
H. Ronald Klasko, Esq.
Theodore J. Murphy, Esq.
Dealing with
Government
Adjudication Delays
Options for Dealing
with Delayed Cases




Do Nothing – wait and hope
Make inquiries
Seek Congressional assistance
Litigation
Klasko, Rulon, Stock & Seltzer, LLP
Causes of Delay







Processing backlogs
RFEs: delay in responding
Inadmissibility issues
Investigations
Motions to Reopen or Reconsider
Government errors
Priority date retrogression
Klasko, Rulon, Stock & Seltzer, LLP
Causes of Delay
(cont’d)

Clearances
 Technology Alert
List
 Criminal clearances
 Security clearances
 Name check clearances
Klasko, Rulon, Stock & Seltzer, LLP
Administrative Mechanisms
for Addressing Delays

USCIS
 Premium
Processing
 Service Center inquiries
 Interim EAD


DOL inquiries
DOS inquiries:
 Consulates
 Visa

Office
AILA inquiry mechanisms
Klasko, Rulon, Stock & Seltzer, LLP
Federal Court Litigation:
Pre-litigation Issues and Concerns








Expense
Time involvement
Retaliation?
When to file?
Actions to take before filing
Where to file?
How long will it take?
What are the chances of success?
Klasko, Rulon, Stock & Seltzer, LLP
Federal Court Litigation:
Legal Framework

What is the law?
 Mandamus
 Administrative

Procedure Act
Complaint
 Who
are the parties?
 What relief is requested?
Klasko, Rulon, Stock & Seltzer, LLP
Types of Applications

I-129/I-140
 Employer

as plaintiff
I-485
 Memo
re: name check delays (2-4-08)
180 days from request to FBI
 Adjudicate if approvable and quota current

Klasko, Rulon, Stock & Seltzer, LLP
Types of Applications

N-400
 No 180-day limit on name check delays

 If
(cont’d)
New FBI targeted timeframes
interviewed
Can choose to have federal court decide 120
days after interview
 USCIS policy to withhold interview until name
checks clear

 If
not interviewed

Option to file mandamus in federal court
Klasko, Rulon, Stock & Seltzer, LLP
Federal Court Litigation:
Responses of the Government

Possibility of “expedite”
 Officially
 Unofficially

Motion to Dismiss
Klasko, Rulon, Stock & Seltzer, LLP
Federal Court Litigation:
Role of the Judge
No precedent: judge is critical
 Active judges/passive judges
 Range of orders

Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Worksite Enforcement
discussion leader
Elise A. Fialkowski, Esq.
Overview - Brave New
World for Employers





New government enforcement priorities and
techniques;
Penalties for non-compliance, including criminal
liability;
Impact of State and local laws;
Social security no-match letters;
Choosing whether to participate in voluntary
government programs (E-Verify, IMAGE).
Klasko, Rulon, Stock & Seltzer, LLP
ICE Enforcement Strategy






Recent ICE enforcement initiatives—audit v. raid
Increased civil fines coupled with criminal
penalties
ICE has the authority to use wiretaps
ICE has the authority to establish and operate
undercover investigations
ICE utilizes confidential informants
ICE coordinates with IRS, DOL and other agencies
Klasko, Rulon, Stock & Seltzer, LLP
Impact of State and Local Laws

As of December 31, 2007, at least 1562 pieces of
legislation related to immigrants had been introduced
among the 50 state legislatures – of the 240 that became
law – 29 effect employment in approximately 20 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, Idaho, Iowa, Massachusetts,
Minnesota, Oklahoma, Pennsylvania, Tennessee, Texas
Some states require E-Verify while Illinois prohibits it.
Klasko, Rulon, Stock & Seltzer, LLP
“No-Match” Regulations




DHS/ICE issued regulations on August 15, 2007 to be
effective September 14, 2007—constructive
knowledge receipt of Social Security no match letter
or Written notice from DHS
Prior to effective date, the U.S.D.C. for the Northern
District of California enjoined the implementation
On March 21, 2008 - DHS Supplemental Proposed
Rule
On March 24, 2008 the Office of Special Counsel
issued Antidiscrimination Guidance
Klasko, Rulon, Stock & Seltzer, LLP
Social Security
“No Match” Regulation

“Reasonable steps” to rebut constructive
knowledge presumption (“safe harbor”)
 Within
30 days: employer check/correct records and
inform SSA/DHS
 Within 90 days: if employer records correct, request
employee confirmation


If employee corrects record, employer correct and
inform SSA
If employee states employer records correct, employee
must resolve discrepancy with SSA within 90 days
Klasko, Rulon, Stock & Seltzer, LLP
Social Security
“No Match” Regulation

If unresolved after 90 days, new I-9 must be
completed by the 93rd day.
 Employer
cannot accept the following:
 Any document referenced in written notice
 Any document with disputed social security or
alien number
 Any receipt for replacement of such document
 Employee must present a document with a
photograph

If not, terminate
Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Choosing Whether to Participate
in Voluntary Government Programs

E-Verify
 Checks
social security number against national
databases-SSA & DHS
 New photo screening tool
 Voluntary program (at least on federal level at
this time)
 Requires Employer to agree to MOU with DHS
and SSA w/significant obligations
Klasko, Rulon, Stock & Seltzer, LLP
E-Verify Memorandum
Of Understanding

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
Klasko, Rulon, Stock & Seltzer, LLP
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
Queries must be conducted within 3 days after hire
You can leave the E-Verify program only after 30 days
notice
Klasko, Rulon, Stock & Seltzer, LLP
Guidelines for E-Verify

What you need:
 Information
(cont’d)
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
 Expiration dates for identification and eligibility
documents
 Identification document provided from List “B” must
contain a photograph
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Results
(cont’d)

Tentative Non-Confirmation – YELLOW LIGHT
 System
cannot perform immediate match
 NOT grounds for termination
 Follow up steps:
1. Double check input date to ensure no errors (if errors
are found run SSA query again)
2. Record case verification number
3. Inform employee of tentative non-confirmation
Klasko, Rulon, Stock & Seltzer, LLP
Results
(cont’d)
4.
5.
6.
7.
Inform employee he/she has the right to contest nonconfirmation 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 resolve discrepancy with
SSA/DHS (unless SSA/DHS extends)
On the date that is 10 Federal Working Days after the
date of the referral you must query the system again.
Klasko, Rulon, Stock & Seltzer, LLP
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 nomatch
Klasko, Rulon, Stock & Seltzer, LLP
Disadvantages of Using E-Verify







Significant problems with underlying databases
Potential waiver of 4th Amendment protections
Limited to new hires
No safe harbor from worksite enforcement
SSA may not extend 8-day resolution period
No formal appeals process
Continued employment after final nonconfirmation results in rebuttable presumption of
violation
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
IMAGE-Choosing Whether to
participate in Voluntary Government
Program

ICE Mutual Agreement between Government and
Employers (“IMAGE”) (www.ice.gov/partner/opaimage)
 I-9 audit by ICE
 Verify social security numbers of existing workforce
 ICE training and education
 Commit to ICE “best practices”
 Establish “tip line” to ICE
 Does not ensure against raid, investigation, fine or
criminal action
Klasko, Rulon, Stock & Seltzer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Speaker Contact Information


H. Ronald Klasko, Esq.

William A. Stock, Esq.

Tele: 215.825.8608

Tele: 215.825.8607

Fax: 215.825.8699

Fax: 215.825.8699

E-mail: rklasko@klaskolaw.com

E-mail: wstock@klaskolaw.com
Richard R. Rulon, Esq.

Suzanne B. Seltzer, Esq.

Tele: 215.825.8612

Tele: 212.796.8846

Fax: 215.825.8699

Fax: 212.297.1799

E-mail: rrulon@klaskolaw.com

E-mail: sseltzer@klaskolaw.com
cont’d…
Klasko, Rulon, Stock & Seltzer, LLP
Speaker Contact Information


Elise A. Fialkowski, Esq.

Tele: 215.825.8647

Fax: 215.825.8699

E-mail: efialkowski@klaskolaw.com
Theodore J. Murphy, Esq.

Tele: 215.825.8646

Fax: 215.825.8699

E-mail: tmurphy@klaskolaw.com
Visit us online at www.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP