Michigan CUPA-HR October, 2009

Reshaping Your Institution’s Immigration Program and Compliance

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With you today…

Scott F. Cooper

Partner & Managing Attorney – Troy Office

Fragomen, Del Rey, Bernsen & Loewy, PLLC2301 W. Big Beaver Road, Suite 225

Troy, MichiganMain Phone 248-649-5405Direct Dial 248-282-5703

Fax 248-649-5121www.fragomen.com

scooper@fragomen.com

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With you today…

Lynn Shotwell

Executive Director

American Council on International Personnel1101 15th Street NW

Suite 750Washington DC 20005

Main phone 202-371-6789Direct dial: 202-683-2162

Fax 202-371-5524

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What we’ll cover…

•The Changing Immigration Climate

•New Government Initiatives

•Workforce Reduction Impacts

•Reshaping Your Institution’s Policies and

Procedures

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Climate Change

•The recession raises issues in hiring foreign nationals•Agency priorities change from national security to saving US worker jobs

•Durbin & Grassley, Lou Dobbs, FAIR, IEEE and the AFL-CIO•Audits and convictions related to visa fraud and noncompliance

• Immigration enforcement before or as a part of comprehensive reform

•State and local immigration provisions•Obama Administration focus on employers

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Stricter Requirements•Students and Exchange visitors

- SEVIS II

- Greater government scrutiny of worker petitions•Staff positions tend to be more problematic if no clear specialty degree requirement

•More narrow interpretation of extraordinary ability and outstanding professor/researcher definitions or permanency of research positions which can lead to having to process more PERM labor certifications

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Stricter Requirements•Continued delays

- Permanent residence case processing

- PERM processing delays and audits

- Visa quota backlogs for those born in China or India, or for bachelor level professional positions.

- Visa issuance due to security checks affects travel

•New consular forms and procedures; higher refusal rates

•Growth in costs related to sponsoring students, exchange visitors and temporary workers- Increased SEVIS program fees, government filing fees

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Enforcement Initiatives

•Greater DOS and ICE SEVIS enforcement

- Out-of-status students find it difficult to be reinstated

- ICE detaining students based on violations of SEVIS errors

•Increasing I-9 audits•H-1B labor condition application compliance investigations

•USCIS worker petition fraud investigations•PERM audits•Export control compliance issues in visa issuance

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Enforcement Initiatives

•Social security no-match rule rescinded- ICE still considers receipt of a no match letter as potential

constructive knowledge of unlawful status

•E-Verify requirements- Federal contractor rule

- States requiring E-Verify for all employers or for state contractors• Michigan House bill 4355 – all public contractors, private right of

action

- Oakland and MaComb County E-Verify requirements – County employees and contractors (MaComb county contracts of > $20,000)

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Workforce Reduction

•Regulatory compliance issues:- F-1 on-campus employment which displaces a US worker

- Layoffs focused on temporary visa employees• Potential H-1B worker wage complaint

• National origin discrimination?

- Impact of layoffs on PERM cases

•US worker layoff- Potential complaint to USDOL regarding continuing H-1B worker

and/or H-1B wages

- Potential complaint regarding PERM in process or pending

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Workforce Reduction Impacts

•Wage and/or benefit reduction programs- Required wage issue for H-1B, H-1B1 and E-3 workers, potential

need to file new LCA with DOL and amended petition with USCIS

- Impact on PERM supported permanent residence cases if wage reduction would preclude offering prevailing wage

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Reshaping Your Immigration Policy

•Develop/Review Your Written Policy•Centralized immigration administration•Define the roles in management of advice and documentation

•Prepare for greater case scrutiny•Improve case management•Prepare for agency contacts•Dedicate appropriate resources

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Develop/Review Your Policy

•Who is authorized as a representative and signatory on immigration-related matters

•For which types of positions will the institution provide visa sponsorship – faculty, staff, adjuncts, technical, joint positions with related institutions

•Visa request and process- Who is authorized to initiate

- Information gathering and case processing

- Limitations on cost sharing

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Develop/Review Your Policy•Create a clear permanent residence sponsorship policy

- For which positions will sponsorship be considered

- Required initiation of special handling for tenure track faculty within 18 month timeframe

- Minimum waiting period

- Limitations on cost sharing

- Labor certification costs covered by employer

- Request process and justification

•Policy relative to dependents- Cost sharing

- Income tax consequence to employee of employer-provided immigration benefits for dependents

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Centralized Administration

•Move from departments into a centralized office to better manage and oversee

•PERM, iCERT and E-Verify system registration and management

•Centralized recruitment coordination for labor certifications

•Coordination of and responsibility for I-9, E-Verify and H-1B LCA compliance

•Grant and research administration oversight of export control compliance

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Define Roles•International office

- Limitations on advice

•Departments•HR•Employees•General counsel•Outside counsel

- Define dual representation position

- Single or multiple providers

- Case submission process

•Government relations

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Prepare for Greater Scrutiny•Review job descriptions and minimum job qualifications•More careful preparation and documentation of applications and petitions

•Submit all with initial filing to avoid requests for evidence- Don’t be surprised by more frequent requests for evidence

•Consult with outside counsel or outsource as appropriate

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Improve Your Case Management•Create effective critical date and case management systems

•Strategize longer term case requirements soon after hire

•Due to iCERT delays, can no longer risk last minute H-1B, H-1B1 or E-3 cases. Allow 2-4 weeks to process LCA in case FEIN number has to be confirmed to DOL

•Begin processing special handling labor certifications earlier to assure filing within 18 months of selection

•Saves money, time and effort

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Are You Ready for a Visit?•ICE investigations of SEVIS managed violators•ICE or DOL I-9 audits•DOL H-1B LCA investigations•USCIS FDNS fraud investigations•US DOC export control investigation•FBI security checks or arrival confirmations

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Dedicate Resources•Provide sufficient training for personnel

- Immigration training

- I-9 & E-Verify training•Systems support

- SEVIS

- Critical date management

- Case management

- Online I-9 and E-Verify systems

Questions & Answers