What happens when the Government asks to inspect Forms I-9?

The government asks an employer for Forms I-9 in order to verify and identify the employer employees. There are several steps in the process of an inspection on Form I-9.

First, either officials from the Department of Justice, the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor will inspect an employer‘s Forms I-9. Typically a written Notice of Inspection (NOI) will be sent to the employer three days prior to the inspection, via U.S. mail. However, officials may opt out of giving the employer any notice, instead using subpoenas and warrants to acquire the employer‘s Forms I-9.

Officials commonly choose where inspections will occur. An officials might require the employer to bring Forms I-9 to an ICE Field Office. Sometimes an inspection will be conducted where the forms are stored.

The five general steps to an inspection as follows:
1. Notice of Inspection (NOI)
As described earlier, a written NOI is sent to the employer, giving him or her three days notice.
2. Obligation to make records available
At the time of inspection, all Forms I-9 and attachments must be available at the location where the inspection was requested.
3. Recruiters or referrers
A recruiter or referrer for a fee, who has designated an employer to complete the employment verification procedures, may present a photocopy of Forms I-9 and attachments instead of presenting Forms I-9 and attachments in its original form.
4. Compliance with inspection
Employers who refuse to present Forms I-9 will be in violation of law.
5. Use of subpoena authority
An officer may be forced to attain Forms I-9 and attachments by issuing a subpoena if the employer has not complied with a previous request to present Forms I-9.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Issue of 221(g) and Other Delays for H-1bs in India

H-1b fraud is rampant in India, and is one of the most falsified visas in India. Many Indian H-1b cases require site visits, as it is necessary for officials to authenticate H-1b applicants’ experience letters due to applicants fabricating employment. According to the India Biannual Fraud Update, 2009, the city of Hyderabad, in Andhra Pradesh, India, is a center for counterfeit documentation in educational qualifications, experience letters and nonexistent companies. Worldwide there are 300,000 H-1b applications that are filed, 100,000 of which that are adjudicated in India.

According to the Fraud Update, Hyderabadi applicants make up over 30% of the consulate’s visa workload. In the first three months of H-1b assessment, the Consulate General of Hyderabad detained and prosecuted multiple vendors on the basis of falsified documents. Some Hyderabadi applicants even tried to submit their applications through the Mumbai Consulate by alleging that their employer was in Pune, which is in the jurisdiction of the Mumbai Consulate. Applicants often used these shell companies so that they could change jurisdictions and avoid applying through the Chennai consulate.

The 2009 Fraud Report enumerated high volumes of fraudulent documentation, namely in education degrees and experience letters. Since then, India has been on high alert and visas are being re-adjudicated—reexamined based on evidence presented by the beneficiary at the interview. It was discovered that H-1b applicants who did not meet minimum education qualifications were being approved for H1B visas. In Hyderabad, India, when the applicants’ experience letters were investigated through site visits to verify the existence of 150 companies, 77% of these employers turned out to be fraudulent. The outcome of this fraud report has led to a higher number of requests for evidence in the US, and a greater number of applicants being sent into administrative processing by the consulates for both H-1b and L-1b visas. The Chennai Consulate has hosted a worldwide H and L fraud conference, which has been attended by, amongst others, Department of Homeland Security (DHS), Kentucky Consular Center (KCC), and multiple posts that adjudicate a number of Indian H-1b applicants.

In other words, the outcome is that even if you have an approved H-1b, there is a 27% chance worldwide of being re-judged, reexamined and re-adjudicated by an officer at the consulate. At this time, there is no deference being accorded to approvals by US Citizenship and Immigration Services (USCIS) of H-1b applications. The H-1b visa holder who has been approved in the US, either through change of status, extension of status, or change of employer, now faces a prospect of going through another judgment process. At the consulate, the H-1b visa applicant is either given a visa stamp of approval in their passport or given a notice under Immigration and Naturalization Act (INA) 221(g). Or worse yet, the applicant is denied.

A 221(g) notice will generally ask for more documentation from the employer and from the employee, and for documentation that demonstrates an employer-employee relationship between the two. H-1b applicants must establish the existence of an employer-employee relationship with documentation that demonstrates that the requirements of experience and employment have been met. Among the various documents required by the consulate are petitions of tax returns; petitions of employees; state tax returns; employee’s work itinerary; a detailed account of the development project that the employee is working on; and academic credentials.

Under the US Department of State (DOS), Foreign Affairs Manual volume 9, FAM 41.53, Congress is given the authority to determine whether the alien meets the required qualifications for “H” status. This approval, in general, is to be considered prima facie evidence that the employee has met the requirements for H visa classification. According to 9 FAM 41.53 N2.2, “DOS does not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status. The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.” On the other hand, even if DHS approves the petition, this does not relieve the employee from establishing that they are eligible for the visa at the visa interview. New information could be made available to DOS during the interview, which could determine whether the consular officer should or should not approve H status without additional evidence. This evidence should bear a reasonable relationship to the issue, but the consular officer should not reconsider the petition because of legal or factual disagreements with DHS. In fact, 9 FAM 41.53 N2.2 states that, “By mandating a preliminary petition process, Congress placed responsibility and authority with DHS to determine whether the alien meets the required qualifications for “H” status. Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” These are the specific directions to DOS consular officers to accord deference to USCIS decisions. Yet, in a knee jerk reaction to the 2009 Fraud Report, it appears that far more petitions are issued 221(g) notices, demanding more documentation despite apparent bona fides established by the visa applicant and employer.

Further, Regulation 9 FAM 41.53 N2.2 also authorizes consular officers to process applications that appear legitimate; identify applications that require local investigation; and identify applications that require referral to USCIS for reconsideration. To avoid inconveniencing petitioners and beneficiaries, and causing duplication by DOS, the consular officer must have specific evidence of a requirement of automatic revocation of the visa; misinterpretation in the petition process; a lack of qualification on the part of the beneficiary; or if other previously unknown facts come to light that might alter a USCIS finding of approval.

When a consular officer seeks reconsideration of previously approved USCIS petition, the consular officer sends the application to KCC with Form DS-3099. The consular officer includes pertinent documentation, or a written memorandum of evidence supporting the request for reconsideration. KCC forwards the request to the approving USCIS office; then KCC scans the request and all the supporting documents to Petition Information Management Service (PIMS). KCC maintains a copy and tracks consular revocation requests. USCIS reconsiders the petition and sends back an approval or denial. This process may take several weeks or months.

The effect of this delay is that employees who are currently employed by US companies on various projects, and who are spending their vacation time with friends and family abroad, are now delayed 3-6 months in their home country. US companies are scrambling to fill those unexpected vacancies; there is a huge loss of revenue and profitability for US companies in the US. Consular officers often reject H-1b petitions based on an erroneous belief that given the high rate of unemployment in the US, those positions filled by the H-1b visa holder should actually be filled by a US citizen.

There is also a belief that US employers want to employ H-1b visa holders instead of US citizens — that US workers are fired so US companies may hire foreign nationals on H-1b visas who may work for lower pay. This is not true. Under current statute and regulations, H-1b visa holders must be paid the higher of the prevailing wage or the actual wage paid to US citizens in similar employment. In fact, every US employer attests to this fact when they file for Labor Condition Application (LCA) certification with the Department of Labor (DOL). US companies pay approximately $6,000 in additional legal and government imposed fees when hiring an H-1b visa holder.

Offsite working is a common practice in the computer industry. Large US companies in the business process consulting industry employ foreign nationals, and place these H-1b visa holders at customer work sites in order to design, build; and deliver business driven technology solutions that enable customers to get a competitive advantage in their market place. Due to the nature of the products and services offered by these US companies to its clients, it is necessary for US employers in this particular industry to provide its products and services directly at the customer’s location. When consular officers see a beneficiary of an H-1b visa not working at the employer’s offices but at a third party location, the immediate reaction by a consular official is to require the H-1b applicant’s employer to provide documentation of employee-employer relationship —- the right to control and the actual control. This requires both employer and employee to provide tax documentation, employee payroll, state tax payroll, contract letters, agreements with customers, and signed employee benefit manuals. It apparently does not matter that some or all of this information may be either confidential or proprietary to the US employer and their customer. Employers are between a rock and a hard place; between disclosing too much private or proprietary information, and risking a denial if these documents are not provided.

To counter these issues presented to and by consular officers, employers and employees should follow the subsequent list of Best Management Practices (BMPs) for adjudicating while applying for H-1b visas.

As an employee, you should avoid traveling outside the US; it could be detrimental to the status of your H-1b. If you must travel, you should notify your employer and attorney and wait for consent, an application review and an update by your immigration attorney, before traveling abroad. Your DS-160 Form should not say “unemployed” while you are not working for your employer. Obtain a vacation letter from your manager.

In terms of the application, the beneficiary should be aware of what the company says about him or her. The beneficiary must have supporting evidence that proves he or she has the skills and expertise to do the job. The beneficiary should also know the organizational framework of the company, and know how education and experience qualifications make him or her eligible for H-1b. If the beneficiary has been with the employer for over two years, then it is wise to begin the Labor and Green Card process and fill out an I-140 Form. Before submitting the H-1b application, make a full copy of the petition with all the supporting documents and study the original H-1b application. Be prepared to answer questions that are not within the scope of the application. Remember to dress business casual, and do not be modest about your accomplishments.

As an employer, the support letter should describe the company’s product, and the employer must ensure that the application meets the criteria of a US company. The employer must identify job duties, qualifications and experience for employees; and that the employer is the source of tools and knowledge for the job. The employer must prove that he or she manages the employee, and has the authority to delegate supplementary tasks and hire and fire, as well as review employee performance and furnish company benefits. Evidence should support the fact that the employer pays employees’ wages, and pays federal, state and local taxes on the employee’s wages. The employer must show that he or she claims the beneficiary as an employee on tax filings. The employer must also provide employee records, corporate tax returns and payroll for employees. In addition, companies must ensure that any publicly available information about their business is accurate. Consular officers either check Vibe or perform a quick search online about the company.

Please contact Mahadevan Law Office if you have any further questions.
Phone: 314-725-9958
Email: nsm@lawyersyoucantalkto.com
Website: www.lawyersyoucantalkto.com

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step Two in ICE Audit Process

This blog details how employers can avoid I-9 audit by ICE. After ICE issues the employer a Notice of Inspection (NOI), ICE visits the employer‘s worksite, or the employer visits ICE‘s offices, with the electronic or paper Forms I-9 and supporting documentation.

Second Step: Violations

If, during the audit, ICE finds technical or procedural violations, then the employer is given 10 business days to make corrections.

Employers should avoid hiring:
• workers who do not have current authorization to work in the U.S.
• workers who have criminal immigration violations
• workers who fail to produce documents from Lists A or Lists B and C.

Worksite enforcement is conducted by ICE, Immigration and Criminal Enforcement, and a department of the U.S. Department of Homeland Security.

Worksite Enforcement Strategy:
• ICE will arrest and remove any illegal workers who are found in the course of these worksite enforcement actions.
• ICE will use civil fines and debarment to penalize and deter illegal employment.

ICE officers look for evidence of mistreatment of workers, employer discrimination against workers and evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct. ICE offices will get indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO) to prosecute the employer before arresting employees for violations at a worksite.

To avoid audit, employers must not:
• Discriminate against individuals on the basis of national origin, citizenship, or immigration status.
• Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

In the next section of Part VI, Section C, we will be discussing the final step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part VI: Step One in ICE Audit Process

This blog is for employers to avoid I-9 audit by ICE. ICE audits start with a letter from ICE called Notice of Inspection (NOI). Since the process of auditing is complex, the auditing process has been broken down into several steps so that it is easier to understand and follow.

First Step:

ICE‘s auditing process starts with an NOI that is sent, or mailed, to the employer. The NOI asks for a record of Forms I-9 maintained by the employer. The NOI is typically presented 3 business days before the employer must produce Forms I-9. ICE will ask the employer for documentation that support Forms I-9, either in the form of the payroll, list of current employees, Articles of Incorporation, or business licenses. ICE will then inspect the Forms I-9 for compliance with rules and regulations.

ICE officers usually choose where a Form I-9 inspection occurs. ICE may ask the employer to bring Forms I-9 to an ICE field office. Sometimes arrangements may made at the employer‘s worksite. When officials arrive to inspect the employer’s Forms I-9, the employer must present:
• Electronically stored Forms I-9 and any other requested documents
• Necessary hardware and software to validate electronic documents
• Any existing electronic summary of the information on Forms I-9

Employers who refuse or delay an inspection will be in violation of the law.

In the next section of Part VI, Section B, we will be discussing the second step in the ICE auditing process.

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part V: When to Complete Section 3 of Form I-9

This is Part V of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; how to fill out section 1 of Form I-9; and how to fill out section 2 of Form I-9.

In Section 3, the employer re-verifies the the employee‘s information on Form I-9. When an employee’s employment authorization or documentation expires, the employer must re-verify that the employee is still authorized to work.

Employers should complete Section 3 when:
• An employee’s employment authorization or employment authorization documentation has expired
• An employee is rehired within three years of the date the previous Form I-9 was completed
• An employee changes his or her name

Employers should not re-verify U.S. Citizens; lawful permanent residents who presented a Permanent Resident Card for Section 2; List B documents; however, employers must re-verify all other employment authorization documentation.

Check the previous post to learn how to fill out Section 2 of Form I-9.

Next week : Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part IV: How to Fill Out Section 2 of Form I-9

This is Part IV of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. In our previous blogs we discussed I-9 basics; which employers should collect I-9; and how to fill out section 1 of Form I-9.

Section 2 of Form I-9 is to be filled out by the employer. The employer must fill out and sign Section 2 within three days of the employee’s first paid work day. If the job lasts less than three days, the employer must complete Section 2 before the first paid work day.

It is the employee‘s decision on what documentation to produce to prove their identity or employment authorization. He or she must make one selection from List A, or one selection from List B in combination with List C. The employer must not specify which documents are required; instead, the best practice would be for the employer to present the employee with a printed list of Lists A, B, and C, and for the employee to choose which of those documents to present.

Employees who present documents from List A do not have to present any other document. List A includes:
U.S. Passport or U.S. Passport Card
Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant
visa
Employment Authorization Document (EAD) that contains a photograph (Form I-766)
Foreign passport with Form I-94 or Form I-94A, and Arrival/Departure Report

The employer must be careful that the employee is authorized to work for the employer, especially if they are on a visa that allows the employee to work. The employer must ascertain that the employment authorization to work is not tied to a particular employer who is not the employer hiring the foreign worker. This is particularly important when employing foreign students, and employees on H visa, L visa, and other work visas.

Employees who present documents from List B also have to present a document from List C.

List B includes:
Driver’s license or Identification Card issued by a United States authorities that contains a photograph or name, date of birth, gender, height, eye color and address
Identification Card issued by federal, state or local government agencies or entities that contains a photograph or name, date of birth, gender, height, eye color and address
• School Identification Card with photograph
• Voter’s registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariners Document Card
• Native American tribal document
Driver’s license issued by a Canadian government authority

List C includes:
• U.S. Social Security account number that is unrestricted. Unrestricted Social Security account numbers are only issued to:
-U.S. citizens
-Non-citizen Nationals of the U.S.
-Lawful permanent residents
-Refugees
-Asylees
-Citizens of the Republic of Marshall Islands, the Federated States of Micronesia, or the Republic of Palau
-Canadian-born American Indians
-Mexican-born Kickapoo Indians
Certification of Birth Abroad issued by the U.S. Department of State
Certification of Report of Birth issued by the U.S. Department of State
Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying possession of the U.S. bearing an official seal
• Native American tribal document
U.S. Citizen ID Card
ID Card for Use of Resident Citizen in the U.S.
Employment Authorization Document issued by Department of Homeland Security:
-Form I-94 issued to an asylee
-Work-authorized non-immigrant
-The Unexpired Re-entry Permit
-The Certificate of U.S. Citizenship

The employer must examine each employee‘s documents. If the employer rejects the document, then the employee is allowed to present other documents from Lists A, B and C.

To complete Section 2, the employer should:
• Record the document title, issuing authority, number(s) and expiration date from the employee’s original document(s)
• Enter the date the employee began or will begin paid work
• Provide the name, signature and title of the person completing Section 2, as well as the date he or she completed Section 2
• Record the employer’s business name and address
• Return the documentation presented back to the employee
• Return the documentation presented back to the employee
• Entering the date the employee began employment
• Entering the date the employer examined the employee’s documentation

The employer may copy the documents presented by the employee and attach it to I-9 for record keeping purposes. However, this practice must be uniform for all employees; once started, the best practice for the employer is to employ a uniform policy of retaining a copy of the employee‘s identification and other documents presented that qualifies them to work for the employer.

Check the previous post to learn how to fill out Section 1 of Form I-9.

Next week : Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part III: How to Fill Out Section 1 of Form I-9

This is Part III of a blog series for employers to maintain and complete Form I-9 and to avoid audit by ICE. Employees should fill out the first section of Form I-9 before the first paid workday. A translator can help the employee complete Section 1. The best practice for an employer is to have the potential employee complete Section 1 and present documents from either List A, or List B and List C.

Both the employee and employer need to work together to fill out Section 1 of Form I-9.

Employees should provide:
• Their full legal name—women should give their maiden name, including hyphenated names, as it appears on their identity documents
• Current address
• Date of birth
Social security number
• Citizenship or immigration status
• Alien or Admission number, if applicable
• Date employment authorization expires
• Signature and date
• If a translator helps the employee, then the translator has to provide his or her name, address, signature, and date the form
• The employee and translator’s signatures must be dated on the same day

Employers must confirm:
• All employee’s information in Section 1
• The employee and translator have both signed and dated Section 1
• The employee specified when their employment authorization ends
• The employee’s employment authorization is valid and current on the date of the employee signing and dating Form I-9
• And communicate to the employee, at least 90 days before employment authorization expires, that they need to present a List A or List C document to show continued employment authorization. Employees must present these documents on the date their current employment authorization expires.

Which employers need to collect Form I-9? Check the previous post for a full description.

Next week : Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Tara Mahadevan

Copyright 2012. All rights reserved.

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Part I: I-9 Basics

This is a multi-part blog on filling, filing, maintaining and auditing Form I-9, and how companies can avoiding penalties for non-compliance.

Who is an employer? An employer is any entity or a person, an agent of a person or entity, who is acting directly or indirectly. That means a company or an individual is an employer if they employ another person. The employer can be a contractor or sub-contractor; the word employer includes an agent: someone who is acting on behalf of an employer. An employer is one who hires another to work for them. The employee must be physically present in the United States. Overseas employees are not subject to I-9 rules and regulations. An employee must be paid wages or other remuneration in the United States.

Employers are also entities or individuals who recruit agricultural workers and who accept a fee for recruiting workers. Independent contractors are employers, if they contract with an individual for labor or other services. But the person or entity using the contract labor is not an employer.

All employers must verify the identity and employment eligibility of every worker hired in the United States after November 6th, 1986.

Employers are charged with not ‘knowingly’ hiring ineligible workers. ‘Knowingly’ could include constructive knowledge, knowledge attributable by inference to the employer by facts and circumstances that exist around the hiring of the employee. It is facts and circumstances an employer should have known.

All US employers must fill out I-9 forms and retain it at their offices, either in electronic or paper form. Form I-9 is not filed with the US Immigration and Citizenship Service (USCIS) or with US Immigration and Enforcement (ICE). There is no filing fee.

An employer uses E-verify to compare the information on Form I-9 provided by the employee against government records to verify the employee is eligible to work in the United States.

Forms I-9 are records of every employee hired after November 6, 1986. Employers are required to maintain these records in order to prevent illegal workers from working for a US employer in the United States; and to promote national security, critical infrastructure, prevent abuse and exploitation of workers. ICE targets employers who violate employment laws; hire illegal workers; and do not maintain employee I-9 records, which conform to US immigration laws and regulations.

Both ICE and USCIS are part of the Department of Homeland Security (DHS). ICE is tasked with enforcing proper maintenance and usage of the I-9 by employers and prosecutes erring employers.

Next week : Read Part II:  Which employers collect Form I-9

Part III: How to fill Section 1 of Form I-9

Part IV: How to fill Section 2 of Form I-9

Part V: When do you complete Section 3 of Form I-9

Part VI: Steps in the ICE Audit Process

Part VII: Penalties

Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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Entrepreneurs Can Use Immigrant Visas to Create US Jobs

Last year, USCIS suddenly decided that an H-1b could not be self-employed anymore, reversing years of policy. The White House has now reversed itself and is re-instating H-1bs for the self-employed, especially if they create jobs.

USCIS Director Alejandro Mayorkas today outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.

“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”

“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”

These actions mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.

USCIS has published a Frequently Asked Questions (FAQs) document on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS will complement these FAQs with internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States.

In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1b beneficiary who is the sole owner of the petitioning company may establish a valid employeremployee relationship for the purposes of qualifying for an H-1b nonimmigrant visa – which is used by U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming.

The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions; implementing direct lines of communication between the applicants and USCIS; and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.

Created by Congress in 1990, the program stimulates the U.S. economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, it is estimated that the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

USCIS has also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers (often referred to as “E13”). The Premium Processing Service allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.

Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena. For detailed information on USCIS‘s public meetings, please visit www.uscis.gov/outreach.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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OCI and Renunciation Certificate for Travel to India

A client of mine asked me if they would become dual citizens if they obtained ‘Overseas Citizen of India’ (OCI). Although the word ‘Citizen’ is included in the name, the OCI holder does not become a citizen of India. OCI could be likened to becoming a permanent resident of the United States. There is no eligibility to vote or be elected to public office, nor is there eligibility to be employed by the Government of India or hold an Indian passport. A US ‘green card’ holder can buy agricultural land, but an OCI holder cannot acquire agricultural land in India, unless they inherit the land.

At all times, an OCI holder remains a citizen of the country of their current citizenship. So a US citizen applying for an OCI does not hold dual citizenship; rather, she or he holds a permanent visa to India, with the ability to enter and exit India at anytime. The OCI holder does not have to register with the local police authorities to stay in India past six months. The OCI is a booklet that is carried in addition to your passport; the passport is stamped with a U visa that is a permanent visa. At this time, India does not recognize dual citizenship.

To be eligible for an OCI, the applicant must be eligible to become an Indian citizen on January 26, 1950 or later, was never a citizen of Pakistan or Bangladesh, or is a child or grandchild of an Indian citizen.

The applicant must renounce Indian citizenship. If Indian citizenship was renounced before June 1, 2010, then the surrender fee is $20.00; $175.00 for renunciation of Indian citizenship past June 1, 2010.

A surrender certificate is required to obtain consular services at the Indian consulate, after receiving OCI, if you obtained non Indian citizenship after May 31st, 2010. If you were not an Indian national before that date, then you do not require renunciation certificate. Contrary to popular myth, you do not need a renunciation certificate to enter India. You need your OCI card, and your passport with your permanent visa ‘U’ visa to India.

A surrender certificate is issued when you surrender an Indian passport to obtain an OCI card. A renunciation certificate is issued when the Indian passport is lost and only Indian citizenship is renounced, no passport surrendered.

Hope this clears up my client’s doubts.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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