Perils of Travel During Holidays and Anytime
We
remind our clients that even routine business travel abroad can
be hazardous for those requiring visas.
The State Department has a secret list of 33 countries that
are frequently subjected to Security Clearance Requirements when
applying for visas abroad. This results in delays of 3-4 months
or more during which the individual cannot return to the United States. It is all but impossible to expedite these
clearances. And the list of countries is ever-expanding:
even UK nationals may be subject to the requirement. It is also impossible to predict what will trigger the requirement. Misdemeanors, traffic offenses, unpaid fines,
or simply having the same name as a person with such an offense
can place one in this hold pattern and without a remedy to expedite
what ought to be an obvious situation of mistaken identity.
We are also advised that the consuls are screening for export
violations, especially for nationals of Israel, China and Russia.
Remember: if your firm is subject to export controls, then the hiring
of a national from a prohibited country to work with the targeted
technology is a “deemed” export. If your firm has export restrictions,
then this should be a concern if you have foreign national workers.
We work with a number of lawyers that can obtain a license to permit
the employment of a particular employee, or advise you further in
this important area. Clearly, the specter of 9-11 is having an impact
on business immigration and the measures taken by the Attorney General
impact almost every area of commerce.
Save The Date: January 22, 2003 - Flynn & Clark Seminar
Flynn
& Clark will be cosponsoring a seminar on immigration issues
for Human Resources personnel and General Counsel at 1 Main Street
Cambridge from 2-5 PM on January 22, 2003.
Co-sponsors will include Forum 128. We will announce topics
and speakers in a forthcoming update. Please save the date.
As always, we welcome your suggestions for additional topics
and seminar locations.
Legislation Helps Get 7th Year for H-1Bs Who Can Not Get Labor
Cert in One Year
President
Bush signed the Justice Budget Bill that helps H-1B workers receive
an extension of stay beyond the normal six-year limit.
Prior
legislation allowed such an extension for employees seeking a Labor
Certification only if (1) the Labor Certification was filed at least
1 year prior to the end of the sixth year in H-1B status, (2) if
the Labor Certification was approved; (3) and an I-140 was
filed with the INS.The old requirement of approval of a labor certification
became a major problem as most Department of Labor offices throughout
the nation began to take more than a year to approve a labor certification,
even under the “expedited” Reduction in Recruitment method.
Now
a 7th year is available provided the labor certification
is filed more than 365 days before the end of the sixth year
is reached.
The
same legislation also expands and extends the Conrad 20 program
to help an additional 500 physicians per year serving in medical
shortage areas remain in the United States.
As
always, we are seeking to apply this new law to our pending cases
and invite questions about how this may affect a specific case.
Special Registration Required for Citizens of Iran, Iraq, Libya, Sudan
and Syria
Nationals
or citizens of IRAN, IRAQ, LIBYA, SUDAN and SYRIA last admitted
to the United States on or before September 10, 2002 are required
to report to the INS on or before December 16, 2002. Failure
to comply will make them deportable and presumed to be inadmissible
in the future as a security risk. This requirement does not apply
if the individual is a citizen or permanent resident of the United
States, holds an A or G nonimmigrant classification (diplomats/
international organizations), or filed for asylum on or before November
6, 2002 or has been granted asylum. Also all females as well as males under age
16 are exempt. Individuals subject to the requirement, who remain
in the US for more than one year, will have to report for registration
within 10 days of the one-year anniversary of their last admission
to the US. All subject individuals must also appear at
designated departure port prior to departure for registration, or
be presumed inadmissible on security grounds in the future.
We
strongly advise persons subject to these requirements not to report
without an attorney to represent them at the interview.
These are lengthy interviews - often an hour in length, and
the individuals will be subject to a battery of questions to ensure
that they are complying with the terms of their admission.
If you, or your employee or friend requires representation,
we can provide assistance by advising of the documents
required to bring and we can appear at the interview. We have attorneys available throughout the
United States should the individual not be located in New England. While this process is a violation of everything
we hold sacred, and does little to assure internal security, it
should not deter anyone with a legitimate reason to visit the United
States from doing so and should be a cause of concern, but not fear.
IRS Will Fine Employers Receiving No-Match Letters
IRS,
INS and Social Security are working more closely together than ever. The 1996 immigration laws require them to do
so. Last year ten million employers received letters from the Social
Security Administration stating that one or more employees had reported
earnings under an incorrect Social Security number and that they
could be subject to fines from the Internal Revenue Service for
using an incorrect number in reporting earnings.
The IRS has not been imposing fines up until now, but beginning
January 2003, they will do so. One out of every six employers could be affected.
While the fines are not substantial compared to INS I-9 fines
(required to verify employee’s identity and eligibility to work
in the US), IRS activity may lead to INS I-9 activity as the agencies
work together more closely than ever before. This will be an opportune time for firms to
conduct their own I-9 audits before the INS does it for you. Mere paperwork violations can result in fines
of up to $1,000 per worker, even if the worker is a US Citizen. In conducting audits for our clients we have
found staggering liability even amongst firms that are well versed
in the immigration laws. INS
has always insisted that they will not fine an employer who corrects
its errors prior to enforcement action, so this is an opportunity
to avoid a festering liability with a minimal legal expense.
State Department Announces INS Processing Slowdown Helps Numerical Limitations
The
State Department has noted that the INS slowdown in processing permanent
residence cases makes it less likely that the maximum number of
employment-based visas will be issued this year. As a result, the
State Department does not forecast backlogs of employment based
visa numbers in either Fiscal Year 2003 or 2004.
Consequently those getting labor certifications will be able
to immediately file for employment authorization upon receiving
the labor certification and begin the permanent resident stage of
their case. However, we
may begin to see some regression in the essential worker category
(unskilled or skills requiring less than 2 years of education or
training). Family visa numbers are currently backlogged
a number of years, but the INS processing slowdown is expected to
reduce these backlogs somewhat.
The
latest processing slowdown is attributed to the requirement that
IBIS security checks be completed within 15 days.
This has required the Vermont Service Center to pull 150
of its 1200 employees off the case adjudication lines to run the
security checks. The Nebraska Service Center reports it has
had to allocate 20% of its staff to security resources. So 9-11 is taking its toll even on high skilled
workers from non-Muslim countries.
Advance Parole Must Be Renewed 1 Year After Return to the US
In
the past foreign nationals granted permission to travel (advance
parole) after filing an application to adjust status to permanent
residence would be granted the parole allowing them to remain in
the US indefinitely while the application is being processed.
In yet another post 9-11 clamp down, the INS will now only
grant the parole for one year. Yet processing can easily take longer than
that. The foreign national must remember to request an extension
of the parole prior to the expiration of the one-year period. Employers are reminded to advise employees who travel after filing
for permanent residence of the need to obtain advance parole, and
to update it prior to the first anniversary.
New Address for Reporting Change of Address
INS has issued a new version of Form AR-11,
Change of Address, and now asks that the forms be filed at an address
in London, Kentucky. The completed form should be mailed to:
Immigration
and Naturalization Service
Change of Address
PO Box 7134
London, KY 40742-7134
For
commercial overnight or fast freight services, only:
Immigration
and Naturalization Service
Change of Address
1084-I South Laurel Road
London, KY 40744
Individuals
subject to special registration must send their AR-11 to a separate
address included in the packet they are given by the INS.
Boston EAD’s
Boston
INS announced today that it would no longer be able to provide same
day service on Employment Authorization card requests.
Applicants will be called back to pick up the cards and are
told to inquire if they are not called within 30 days.
This still compares favorably to most INS offices that have
a 90-day wait, but this is still a disappointment for us. Our clients
have appreciated the prompt service given up until now. So it behooves
us to plan ahead when these employment cards are needed. Human Resource
personnel concerned with individuals needing immediate employment
authorization should contact our office for assistance.
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