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November 2008 Alert

Recent Developments in Business Immigration Law

Federal Contractors The new rule will require If the E-Verify system is Required to Use E-Verify future to unable to confi rm the System to Confi rm contain a clause requiring employee’s , the worker Workers’ Eligibility companies to register for will receive a “tentative E-Verify within 30 days of the nonconfi rmation” notice and On January 15, 2009, new award and to verify have eight days to resolve the rules become effective the status of new and existing discrepancy with DHS or requiring federal contractors hires through E-Verify within SSA. In the event that the to use E-Verify, an electronic 90 days of enrollment in discrepancy cannot be employment eligibility E-Verify. The rule will apply to resolved, the employee may verifi cation system designated all future contract employees be terminated. The Federal and operated by the U.S. as well as all existing Acquisition Department of Homeland employees and federal provide federal offi cials with Security (DHS). E-Verify subcontractors’ employees the authority to terminate a (formerly known as the Basic once they begin working on federal contract or to Pilot/Employment Eligibility new federal government recommend suspension or Verifi cation Program) allows contracts. Exempt from this debarment proceedings for employers to electronically requirement are employees companies that knowingly hire confi rm the biographical data hired before November 6, undocumented workers. The of newly hired employees 1986, employees working on new rules also require DHS pursuant to a Memorandum of contracts performed outside and SSA to refer the Understanding (MOU) entered the , prime contractor to a suspension or into between the employer, contracts valued at less than debarment offi cial if the MOU DHS and the Social Security the simplifi ed acquisition is terminated. Administration (SSA). The threshold of $100,000, In the event your new rules implement subcontracts lasting for a organization is required to President Bush’s duration of less than 120 days register for E-Verify, please Order dated June 9, 2008. covering commercially contact your Vedder Price Approximately 90,000 available products (COTS attorney to assist in employers across the United items) and construction registering for E-Verify and States are currently registered subcontracts valued at less executing the MOU with DHS to use E-Verify. than $3,000. and SSA.

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Social Security are employed in the United — “No-Match” States in specifi c professional Travelers Must Register Regulations Update occupations. This benefi t with the Electronic should reduce the cost of System for the Travel On October 28, 2008, the employing Canadian and Authorization (ESTA) U.S. Department of Homeland Mexican nationals, as Program Security (DHS) issued revised employers will no longer need “no-match” regulations that set to extend their employees’ The U.S. Department of forth procedures for employers authorized periods of stay on Homeland Security (DHS) to follow in response to a an annual basis. plans to implement a new Social Security no-match Electronic System for Travel letter. These regulations Holiday Travel Alert Authorization (ESTA) on defi ne a “safe harbor” for January 12, 2009. ESTA is a Many foreign national employers when dealing with new on-line system that is part employees plan to apply for Social Security no-match of the Visa Waiver Program visas when traveling home for letters. These regulations (VWP). Currently, travelers the upcoming holidays. As a were reissued in response to a from the 27 VWP reminder, foreign nationals preliminary injunction issued can travel to the United States with expired visas will need to by the Federal District visa-free for up to 90 days have new visa stamps issued for the Northern District of without any registration or into their to reenter California. Although the notice requirements. Under the United States. A effective date of these ESTA, all citizens of VWP prescheduled, in- regulations is October 28, the countries who plan to travel to interview is required for visa federal court injunction still the United States for business issuance. Depending on the stands. Therefore, the court or tourism using the VWP Post, interview backlogs may order still prohibits DHS from must receive an electronic be six weeks or longer. We implementing the regulations, travel authorization prior to recommend that employers so they are not in effect. We boarding a U.S.-bound contact their immigration will keep you apprised of airplane or cruise ship. (The to schedule interview developments in this area. requirement will not affect U.S. appointments now to ensure citizens traveling overseas.) that the employees are able to Improved Benefi ts for ESTA applications may be obtain their visas during the NAFTA Employees submitted at any time prior to holiday period and return to travel, although it is Effective October 16, 2008, the United States in a timely recommended that the VWP employees in Treaty NAFTA manner. traveler apply for ESTA travel (TN) status will be eligible to authorization at least 72 hours enter the or extend before departing for the United their stay in the United States States. VWP travelers can for up to three years. Until apply for ESTA authorization now, admission and now at https://esta.cbp.dhs. extensions could be issued for gov. Once approved, ESTA a period of only one year. TN travel authorizations will be status is available to Canadian valid for multiple entries for up and Mexican nationals who to two years or until the

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applicant’s expires, Oklahoma, Rhode Island, of your newly hired whichever fi rst occurs. South Carolina and Utah. employees. If your business Arizona now requires all has not yet signed up for Seven Countries Added to employers, public and private, E-Verify, you may enroll in the Visa Waiver Program doing business in the state to program. The State of Illinois use E-Verify. Mississippi will not penalize employers Effective November 17, 2008, employers with over 250 for participating in the the , , employees must also register program while the is , , , to use E-Verify. The E-Verify pending. and are requirement for smaller eligible for the U.S. Visa Mississippi employers will be Limited Relief for Waiver Program. Citizens of phased in over the next Students Requires these countries will be able to several years. South Carolina Use of E-Verify travel to the United States for employers with more than 500 business or tourism without a employees must begin using U.S. and visa for up to 90 days. Please E-Verify on January 1, 2009; Immigration Services (USCIS) note that citizens of these smaller employers will be has announced that certain countries must also register phased in. F-1 students may apply for a with ESTA before traveling, as 17-month extension of their discussed above, even if the Illinois Allows E-Verify optional practical training travel occurs prior to Despite New Law (OPT) in order to mitigate the January 12, 2009. lack of H-1B Specialty In late 2007, the State of Occupation visas. To qualify State and Local Law Illinois passed a new law for additional work Alert: E-Verify Required (Section 12(a) of the Illinois authorization, the student Right to Privacy in the must have a degree in a A number of states and Workplace Act) prohibiting science, technology, municipalities have recently employers from enrolling in engineering or mathematics passed regulating the E-Verify program, citing (STEM) fi eld and must have a undocumented workers and the unreliability of the job or job offer from an imposing immigration-related database. However, DHS fi led employer that is enrolled and obligations on employers. an action against the State of in good standing in the Consequently, employers now Illinois in federal court asking E-Verify employment eligibility need to ensure compliance that the law be found verifi cation program where the with state and local unconstitutional. Although the student will be employed. immigration in addition to new law was scheduled to The employer must provide its federal immigration laws. The take effect on January 1, E-Verify identifi cation number following states now require 2008, the State of Illinois has for inclusion on the Form certain employers to use agreed to withhold I-765 application for E-Verify, often in connection enforcement until the lawsuit employment authorization. with state contracts and with DHS is resolved. Please note that the employer subcontracts: Arizona, If your Illinois business should not use the E-Verify Colorado, Georgia, Idaho, already has enrolled in system to confi rm the STEM Minnesota, Mississippi, E-Verify, you may continue to graduate’s employment Missouri, North Carolina, use E-Verify to check the data eligibility unless the graduate

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is a new hire, since E-Verify State notifi es successful DV found at www.travel.state.gov. cannot lawfully be used to Lottery applicants by letter, not Additionally, DHS is working verify the employment by e-mail, and paying a fee will with the States of Michigan, eligibility of existing not increase the possibility of Washington, Vermont, Arizona employees. being selected. and New York to issue enhanced driver’s licenses “Green Card” Travel Updates for U.S. that denote both identity and Lottery Registration Citizens and Residents citizenship to comply with WHTI requirements. The U.S. Department of State Effective June 1, 2009, the Several other “trusted administers an annual Western Hemisphere Travel traveler” programs have been Diversity Visa Lottery (DV Initiative (WHTI) will require implemented by the State Lottery) for lawful permanent travelers to present a passport Department. The NEXUS and resident status in the U.S. or other approved secure SENTRI trusted traveler This year, citizens of all document denoting citizenship programs provide expedited countries except Brazil, and identity for all air, land and travel for preapproved, , (mainland), sea travel into the United low-risk travelers through Colombia, the Dominican States, Canada, Mexico, the dedicated lanes at land and Republic, Ecuador, El Caribbean and Bermuda. This some air ports of entry. Newly Salvador, Guatemala, Haiti, requirement will affect U.S. issued trusted traveler cards , Jamaica, Mexico, citizens. Currently, secure have enhanced security Pakistan, Philippines, Peru, documentation is required only features and up-to-date , South Korea, United for traveling by air to technology that help speed Kingdom (except Northern these countries. enrolled travelers across the Ireland) and Vietnam are A new, less expensive . eligible to apply. Please note alternative to the passport is On June 10, 2008, the that this year Russian the new U.S. “passport card,” Global Entry pilot program nationals are eligible to apply, available through the U.S. was launched for approved in contrast to recent years. Department of State. This U.S. citizens and lawful Applications must be made new card was designed to permanent residents who online at www.dvlottery.state. meet the needs of border conduct international air travel gov by noon EST on community residents, and over to reenter the United States December 1, 2008. There is 350,000 cards have been using automated, self-service no fee to apply for the DV issued since production began kiosks. The program is Lottery. The government has in July 2008. The passport currently operational at the issued a Notice noting card facilitates entry at U.S. Atlanta, JFK, Houston, LAX, that some companies posing land and sea ports of entry Miami, Chicago and Dulles as the U.S. Government have when arriving from Canada, airports. Information is sought money in order to Mexico, the Caribbean and available at “complete” lottery entry forms. Bermuda. The card may not www.travel.state.gov. There is no charge to be used for travel by air. download and complete the Otherwise, it carries the same Electronic Diversity Visa Entry rights and privileges as a U.S. Form. The Department of passport. Information may be

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08_November.indd 4 11/17/2008 4:24:50 PM Immigration Law Alert Q November 2008

USCIS Announces U.S. hired. The form is not issued by the U.S. Attorney’s Passport Card Is a “List A” submitted to the government. Offi ce for avoiding indictment Document for I-9 Purposes Instead, employers must and mitigating sentencing. retain completed I-9 forms for Vedder Price routinely Effective August 2008, USCIS all current employees. I-9 prepares Immigration has announced that the new records must be retained for Compliance Policies for its U.S. passport card may be terminated employees for clients that follow these used in the Employment three years after the recommendations. Please Eligibility Verifi cation form (I-9) employee’s date of hire or one contact your Vedder Price process. The new passport year after the date that attorney to update or card is considered a “List A” employment is terminated, implement your company’s document that may be whichever is later. Immigration Compliance presented by newly hired Policy. employees during the Immigration & employment eligibility Enforcement (ICE) Tips for Employers verifi cation process to show Outlines Elements of Using E-Verify authorized work status. List A Acceptable Immigration documents are those used by For employers who use or Compliance Policy employees to prove both plan to use E-Verify, we identity and work authorization In October 2008, a Houston recommend the following when completing the Form I-9. waste collection company was actions to ensure compliance fi ned $3 million by Immigration with the government program USCIS Announces New & Customs Enforcement (ICE) and avoid disruptions in their Version of Form I-9, in connection with an ICE operations: Employment Eligibility investigation involving 1. Strategize. It can be undocumented workers. Verifi cation diffi cult logistically for However, the U.S. employers with multiple USCIS has withdrawn the government agreed not to sites in multiple states June 16, 2008 version of the criminally prosecute the to roll out the E-Verify Form I-9, Employment company provided that the program. Most importantly, Eligibility Verifi cation, and has company adhere to an will every site enroll in reinstated the use of the immigration compliance policy. E-Verify? Which sites June 5, 2007 version. The ICE noted with approval the will be required by law to June 5, 2007 version has been steps being taken by the register? Who will make updated with a new expiration company to ensure the determination as to date of June 30, 2009. Other compliance, which included which sites will be included? than the revision date, there internal audits, consultation Employers should consider are no differences between the with immigration counsel, infrastructure issues, two versions. The form is providing formal training, and including computer available at www.uscis.gov/i-9. appointing a compliance compatibility with the Employers are required to offi cer. These steps closely E-Verify interface. use Form I-9 to verify the follow the recommendations identity and work eligibility of all set forth in the U.S. 2. Timing Issues. How new employees (including U.S. Sentencing Guidelines and long will it take to train citizens) at the time they are the “McNulty Memorandum”

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your HR representatives? Tentative Non-Confi rmations highly skilled migrant workers, Employers planning to and enforcing deadlines became effective on June 30, launch E-Verify by required by the MOU? 2008. Tier 2 applies to skilled January 1, 2009 to comply migrants with job offers who with a state-imposed 5. Manage Expectations. are coming to the UK to fi ll a E-Verify law should be Many newly hired gap in the UK labor market, training HR representatives employees, especially and Tier 5 applies to those now. U.S. citizens, have not traveling temporarily to the previously had to comply UK primarily for noneconomic 3. Training. The employer’s with E-Verify requirements. reasons. Under Tier 2, all Immigration Compliance New employees and their companies that seek to Policy should require that prospective managers often sponsor foreign nationals for E-Verify training occur have diffi culty understanding employment must fi rst register at least annually—more why the new employee with the UK Border Agency often if there is frequent must go to the Social and obtain a Sponsorship turnover in HR personnel. Security Administration to License. Applications for work Access to the E-Verify clear up his or her records. permits under the prior system should not be Managers and executives system posted after Tiers 2 enabled until training has must be educated as to the and 5 of the points-based taken place. Employers obligations and penalties system are introduced should train backup staff imposed by the MOU that November 27, 2008 will not to handle time-sensitive the employer has entered be accepted (unless the notices and procedural into with Homeland Security individual is a Bulgarian or steps required by the and the Social Security Romanian national). E-Verify Memorandum of Administration. Individuals with work permits Understanding (MOU) to under the current work permit accommodate vacations, Global Immigration/Visa scheme may apply for the illness, etc. Issues for Employers related passport endorsement after Tiers 2 and 5 are 4. Audit. Employers should Announces launched. self-audit at least once New Points-Based The new system will result per year to ensure that Immigration System in employer audits and visits the organization’s E-Verify by the UK Border Agency to users are in compliance This year the UK government ensure that employers are with the E-Verify rules unveiled the most substantive complying with the law. set forth in the MOU changes to UK immigration Taking a page from the United with the government as law in over 40 years. The new States, new civil penalties for well as the E-Verify User points-based system (PBS) noncompliance include fi nes Manual. Audits should will replace all current UK work of up to £10,000 per illegal examine whether E-Verify permit and other employment worker, and new criminal posters are clearly posted categories. The UK Border penalties carry a sentence of at hiring areas in English Agency announced that imprisonment of up to two and Spanish. Are HR Tiers 2 and 5 of the PBS will years and unlimited fi nes for representatives timely take effect on November 27, employing illegal workers. notifying new hires about 2008. Tier 1, representing

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China Resumes Issuing agreement with their , , , Multiple-Entry Visas, employer, even if the , Iceland, , Relaxes Processing employer has not renewed the Luxemburg, , , Requirements foreign national’s Work Permit , and The before its expiration date. . Please note that The Chinese government has While such foreign nationals applications for Schengen resumed issuing multiple-entry may not work between the visas must be applied for prior L (Tourist) and F (Business) expiration and renewal of the to departure from the U.S. visas, which are usually valid Work Permit, they may remain Applications may take up to for up to 180 days. Earlier this in while the Work three weeks to be approved, year, the government was Permit extension is so please contact your Vedder approving only single-entry adjudicated. Price attorney as soon as the and dual-entry visas. business trip is planned. Generally, Invitation Letters Non-U.S. Employees issued by the Chinese Traveling to Europe government (Offi cial Invitation on Business Letters) are no longer required for single-entry and dual-entry Although U.S. citizens do not F visa applications but are still require a visa to travel to required for multiple-entry F Europe on business, many visa applications. For foreign national employees If you have any questions or applications fi led in the United will require a visa to do so, wish to discuss these topics States, Offi cial Invitation including citizens of India and further, please contact your Letters are no longer required. China. Many are eligible for a Vedder Price attorney or However, company-issued Schengen visa, which has Gabrielle M. Buckley at Invitation Letters are required made traveling between the 312-609-7626 (gbuckley@ for all multiple-entry F visa 15 member Schengen vedderprice.com) or applications, and for countries much easier. A P. Michelle Jacobson at single-entry and dual-entry Schengen visa holder can 312-609-7761 (mjacobson@ F visa applications fi led with travel to any (or all) member vedderprice.com). the Chinese Consulate in New countries using one single York. Confi rmed return tickets visa, thus avoiding the time and hotel reservations in and expense of obtaining China are no longer required individual visas for each for L and F visa applications, country. The purpose of the unless the applicant is a visit must be leisure, tourism national of a restricted country. or business—employment is not permitted on a Schengen Russia Permits In-Country visa. A Schengen visa allows Extension Applications the holder to travel freely within the Schengen countries Foreign nationals working in for a maximum stay of up to Russia may now extend their 90 days in a 6-month period. multiple-entry work visas on Schengen countries include: the basis of a renewed labor , , ,

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About Vedder Price ■ regarding immigration ® VEDDERPRICE law issues in corporate mergers, Vedder Price P.C. is a national, business- acquisitions, divestitures and other 222 NORTH LASALLE STREET oriented law fi rm with over 260 attorneys in forms of corporate reorganization. Chicago, New York and Washington, D.C. CHICAGO, ILLINOIS 60601 ■ Counseling employers regarding 312-609-7500 FAX: 312-609-5005 The Vedder Price Business compliance with immigration laws in Immigration Group order to avoid civil and criminal 1633 BROADWAY, 47th FLOOR U.S. companies—whether large or small— penalties. NEW YORK, NEW YORK 10019 increasingly hire employees from around ■ Assisting in processing visa 212-407-7700 FAX: 212-407-7799 the globe. The search for talent within applications and resolving other State industries such as fi nancial services, Department matters in U.S. embassies 875 15th STREET NW, SUITE 725 biomedical, high-tech, pharmaceutical, and consulates around the world. WASHINGTON, D.C. 20005 automotive, engineering and other key ■ Assisting employers with their non-U.S. immigration needs through our network 202-312-3320 FAX: 202-312-3322 sectors of the U.S. economy is relentless in its intensity. In response to the needs of of attorneys licensed in other countries. companies to manage their internationally www.vedderprice.com Business Immigration Group Chair: mobile workforce, Vedder Price’s Business Gabrielle M. Buckley 312-609-7626 Immigration Practice Group is designed [email protected] specifi cally to serve the immigration law and compliance needs of companies The Immigration Law Alert is published throughout the country. In addition, the periodically by the law fi rm of Vedder Price fi rm provides counsel and assistance with P.C. It is intended to keep our clients and respect to all types of employment-related interested parties generally informed on immigrant and nonimmigrant visa developments in the business immigration categories. industry. It is not a substitute for Specifi c services include: professional advice. For purposes of the ■ Determining and applying for the most New York State Rules, this bulletin appropriate visa categories for may be considered ATTORNEY individuals who intend to stay ADVERTISING. Prior results do not temporarily in the United States for guarantee a similar outcome. employment or other business-related © Copyright 2008 Vedder Price P.C. reasons. Reproduction of this bulletin is permitted ■ Preparation and processing of only with credit to Vedder Price. For permanent resident visas for executives additional copies or an electronic copy of and other professional employees. this bulletin, or address changes, please contact us at [email protected].

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