An Introduction to Immigration (Without Walls) for 2016 Day One

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1 EVALUATION FORM In order for us to improve our continuing legal education programs, we need your input. Please complete this evaluation form and place it in the box provided at the registration desk at the end of the session. You may also mail the form to CLE Director, NYCLA, 14 Vesey Street, New York, NY An Introduction to Immigration (Without Walls) for 2016 Day One April 11, 2016; 6:00 PM 9:00 PM I. Please rate each speaker in this session on a scale of 1-4 (1 = Poor; 2 = Fair; 3 = Good; 4 = Excellent) David Grunblatt Presentation Content Written Materials Stuart Reich Linda Kenepaske II. Program Rating: 1. What is your overall rating for this course? Excellent Good Fair Poor Suggestions/Comments: A. Length of course: Too Long Too Short Just Right B. Scheduling of course should be: Earlier Later Just Right 2. How did you find the program facilities? Excellent Good Fair Poor Comments: Please turn over to page 2 1

2 3. How do you rate the technology used during the presentation? Excellent Good Fair Poor Comments: 4. Why did you choose to attend this course? (Check all that apply) Need the MCLE Credits Faculty Topics Covered Other (please specify) 5. How did you learn about this course? (Check all that apply) NYCLA Flyer NYCLA Postcard CLE Catalog NYCLA Newsletter NYCLA Website New York Law Journal Website NYCLA CLE Other (please specify) Google Search 6. What are the most important factors in deciding which CLE courses to attend (Please rate the factors 1-5, 1 being the most important). Cost Subject matter Location Date and Time Provider Organization of which you are a member Other 6. Are you a member of NYCLA? Yes No III If NYCLA were creating a CLE program specifically tailored to your practice needs, what topics or issues would you want to see presented? 2

3 NYCLA CLE I NSTITUTE AN INTRODUCTION TO IMMIGRATION (WITHOUT WALLS) FOR 2016 DAY ONE Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY scheduled for April 11 th and April 18 th, 2016 Program Co-Sponsor: NYCLA's Immigration and Nationality Committee Program Co-Chairs: Eugene Glicksman, Glicksman & Cardoso and Stuart J. Reich, Law Offices of Stuart J. Reich, Co-chairs, NYCLA s Immigration and Nationality Committee Faculty: Eugene Glicksman, Glicksman & Cardoso; David M. Grunblatt, Proskauer Rose LLP; Linda Kenepaske, Law Office of Linda Kenepaske, PLLC; Stuart J. Reich, Law Offices of Stuart J. Reich This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional and Non-Transitional credit hours: 1 Ethics; 1 Professional Practice; 1 Skills. This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 3 hours of total CLE credits. Of these, 1 qualifies as an hour of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

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5 Information Regarding CLE Credits and Certification An Introduction to Immigration (Without Walls) for 2016 Day One April 11, 2016; 6:00 PM to 9:00 PM The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution. i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant. ii. iii. iv. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week. v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week. Thank you for choosing NYCLA as your CLE provider!

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7 An Introduction to US Immigration (Without Walls) for 2016 PROGRAM SCHEDULE/BREAKDOWN Day 1 (April 11, 2016) 6:00-6:05: Opening remarks Eugene J. Glicksman, Co-Chair, Committee on Immigration & Nationality Law 6:05-6:55: Introduction and Overview of Nonimmigrant Categories David M. Grunblatt 6:55-7:05: Break 7:05-7:55: Introduction to Three of the Most Utilized Nonimmigrant Work Authorized Visa Categories and Labor Certification Stuart J. Reich 7:55-8:05: Break 8:05-8:55: Immigration Defense: Removal Proceedings Linda M. Kenepaske Day 2 (April 18, 2016) 6:00-6:05: Opening remarks Stuart J. Reich, Co-Chair, Committee on Immigration & Nationality Law 6:05-6:55: Family-Based Immigration Eugene J. Glicksman 6:55-7:00: Break 7:00-7:50: Employment-Based Immigration The First Three Immigrant Categories: An Overview Stuart J. Reich 7:50-7:55: Break 7:55-8:45: Political Asylum Jeffrey A. Heller 8:45-9:00: Practical Tips and Advice Stuart J. Reich, Eugene J. Glicksman, Jeffrey A. Heller

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9 AN IRCA (IMMIGRATION REFORM AND CONTROL ACT) PRIMER: EMPLOYER OBLIGATIONS by David Grunblatt The enclosed provides some general guidance regarding hiring and employment practices which may have consequences under U.S. immigration law. It is not intended to address all circumstances or individual fact patterns, for which it is suggested that counsel be consulted. Furthermore, although it touches on various issues arising under labor, tax or employment law, these areas are the scope of this article, the authors encourage readers to seek counsel from experts in these fields when addressing specific cases. OVERVIEW Prior to Congress passing the Immigration Reform and Control Act of 1986 (IRCA), amending the Immigration and Nationality Act (INA), few provisions of immigration law dictated what an employer could or could not do. The employment of an illegal (undocumented) worker was essentially a violation of law on the employee s part, for which he or she faced possible deportation. However, apart from a few state laws, no sanctions applied to employers who hired undocumented workers. In 1986, in response to public sentiment that the United States had lost control of its borders, Congress passed IRCA which addressed this perceived problem in three ways: 1) it created a general amnesty for foreign nationals in the United States in violation of law since January 1, 1982; 2) it made it a violation of federal law, with specific civil and criminal penalties, to employ undocumented workers; and 3) it created certain anti-discrimination safeguards to ensure that employers, fearing the new sanctions, would not simply refuse to hire anyone who appeared or sounded foreign. The following discussion addresses issues which arise under the sanctions and anti-discrimination provisions of IRCA. It is important to keep in mind that, in addition to IRCA, an entire panoply of federal statutes impact the law respecting employees rights. These include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), The American with Disabilities Act of 1990 (ADA), The Equal Pay Act of 1963 (EPA), and the Civil Rights Act of Moreover, various state and local antidiscrimination laws affect the workplace, and sometimes impose more stringent requirements than federal law. For example, in New York, the New York State Human Rights Law and the New York City Human Rights Law provide additional protection for workers based on marital status or sexual orientation. In view of the foregoing, it is critically important to consult with employment law counsel when particular questions arise. I. IRCA COVERAGE The provisions of IRCA apply to the hiring, recruiting or referring for a fee, individuals for employment in the United States subsequent to November 6, Accordingly, the requirements discussed below will pertain only to the employment of workers by a business in the United States and not to employment, whether for a U.S. enterprise or a foreign affiliate, if such employment occurs abroad. IRCA sanctions also do not apply to grandfathered employees (hired before November 7, 1986) or when a worker is not employed by an entity. Who is an Employee? The threshold determination to be made in any case where services will be rendered in the United States is whether or not an individual worker will be employed by the entity. Immigration regulations define employee as an individual who provides services or labor for an employer for wages or other remuneration. 1 The 1 8 CFR 274a.1(f). 7501/ current/ v1 03/16/2016 2:17 PM 1

10 2 definition specifically excludes independent contractors and certain persons engaged in casual domestic employment. Independent Contractors An employee may not be called an independent contractor merely to circumvent the requirements of IRCA. Accordingly, whether or not an individual or an entity is an independent contractor will be determined on a case-by-case basis, regardless of what the individual or entity calls itself. Independent contractors carry on an independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Some indicia of whether or not an individual, or entity, is an independent contractor are whether the worker: supplies the tools or materials makes services available to the general public works for a number of clients at the same time has an opportunity for profit or loss as a result of labor or services provided invests in the facilities for work directs the order or sequence in which the work is to be done determines the hours during which the work is to be done When an entity utilizes the services of an independent contractor such entity is relieved of the requirement (further discussed infra) of verifying that the worker is authorized to be employed in the United States. However, federal law makes it clear that an entity may not use a contract or subcontract in order to obtain the labor or services of undocumented workers knowing that these workers are unauthorized with respect to performing such labor or services. 2 In as much as the Department of Homeland Security (DHS) will make a case-by-case determination of whether an individual or entity is an independent contractor, whenever an entity engages the services of an independent contractor it is recommended that such entity have a contract and keep well documented records with respect to the factors described above which would be given consideration by the DHS In most instances, entities in the information technology field which function as independent contractors will require a consulting agreement. Most agreements will contain a clause that designates the independent contractor as such. It is recommended that this clause reflect the consultant/contractor s obligations with respect to tax liabilities for its employees. It may be advisable to consider including additional language in the consulting agreement which provides that: 1) the independent contractor bears responsibility for verification of the employment eligibility for its workers pursuant to INA 274A (relating to completion of Form I-9); 2) the independent contractor warrants that its workers are legally authorized to render the services described in the contract and; 3) that if a visa is required, the necessary approval and documentation will be secured by the independent contractor, covering services at the location indicated in the agreement, prior to commencement of services under the agreement. Volunteers A cautionary note is warranted with respect to the use of volunteers within an organization. Extensive volunteer work may be construed as unauthorized employment, if the volunteer receives perquisites for that work. Thus, volunteer work for which traditional fringe benefits (housing, medical expenses, etc.), but no salary, is received, may be deemed employment. Further, volunteer services for a prospective employer where the noncitizen will ultimately derive a benefit may be construed as employment. In addition, in many instances, taking on a volunteer or unpaid intern, particularly, if not associated with an academic program, may be in violation of employment and labor laws. 2 INA 274A (a)(4). 7501/ current/ v1 03/16/2016 2:17 PM

11 AN IRCA (IMMIGRATION REFORM AND CONTROL ACT) PRIMER: EMPLOYER OBLIGATIONS 3 II AVOIDING DISCRIMINATORY HIRING PRACTICES IRCA prohibits national origin or citizenship status discrimination against protected individuals by employers of four or more workers when they hire, fire, or recruit for a fee. It is not unlawful under IRCA to prefer a U.S. citizen worker over an equally qualified undocumented worker. Protected individuals under IRCA include: U.S. citizens or nationals, noncitizens who are lawful permanent residents ( green card holders), refugees, asylees, or temporary residents under IRCA s legalization program. However, as previously indicated above, other federal and state employment laws may offer even broader protection to workers. In fact, the Equal Employment Opportunity Commission (EEOC), which administers Title VII, the ADA, the ADEA and the EPA advises that although the Supreme Court decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 122 S. Ct (2002) prohibits the award of back pay to undocumented aliens the decision in no way calls into question the settled principle that undocumented workers are covered by the federal employment discrimination statutes and that it is as illegal for employers to discriminate against them as it is to discriminate against individuals authorized to work (June 28, 2002) In view of the foregoing, employers must tread a very thin line in attempting to ensure that no unauthorized worker is hired in violation of federal law, while simultaneously steering clear of potentially discriminatory questions in ascertaining the work authorized status of a prospective new hire. The best protection against a claim of a discriminatory employment practice is to ensure that all workers and candidates for employment are treated the same regardless of citizenship, national origin, race, color, religion, gender, age, marital status, pregnancy, disability, sexual orientation or any other unlawful basis for distinguishing workers. Pre-Hiring Questions All candidates for employment should be asked the same questions in determining their eligibility to work. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), part of the Civil Rights Division of the U.S. Department of Justice, has on several occasions addressed the issue of what inquiry is appropriate for an employer to make concerning an applicant s authorization to be employed. In April 1993 letter, the OSC stated that it was permissible to ask the following question: Are you presently legally authorized to work in the United States on a full time basis? The OSC recommends against asking whether an applicant is authorized for permanent employment since IRCA provides protection to some workers (such as refugees or asylees) whose employment authorization may not be permanent. In June 1993, the OSC responded to an inquiry regarding permissible questions in the labor certification interview process. Applications for a foreign nation s labor certification (a preliminary step in applying for a green card for a worker) requires that employers recruit for U.S. workers (U.S. citizens, nationals, foreign nationals admitted for permanent residence, temporary residents under the amnesty program, refugees & asylees) before the application for the foreign national worker can be approved. In this context, an employer may wish to ask: Are you currently authorized to work for all employers in the United States on a full-time basis or only for your current employer? In August 1998, the OSC approved the following questions for use in employment interviews or employment applications: Are you legally authorized to work in the United States? Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? In June 2010, the OSC advised that an employer could amplify on this question by adding sponsorship for an immigration-related employment benefit means an H-1B visa petition, an O-1 visa petition, an E / current/ v1 03/16/2016 2:17 PM

12 4 visa petition, TN status, and job flexibility benefits (also known as I-140 portability, or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer. Although the OSC cautions that it cannot opine on particular cases of alleged discrimination, the foregoing inquires would appear to comport with the requirements of IRCA. Accordingly, it is recommended that prehiring questions be limited to either the first or second set of approved questions above. Completing & Documenting Form I-9 As discussed at length below, IRCA requires that employers verify (and reverify when necessary) that the worker has permission to accept employment in the United States through the proper and timely completion of Form I-9. The documents which a worker may present to prove identity and work authorization are specifically enumerated in the federal regulations. It is not unlawful to request applicants for employment to complete Form I-9 at the time of interview, so long as all applicants are requested to do so. However, the information provided on Form I-9 could be used to discriminate on a prohibited basis. Accordingly, in order to avoid a charge of discriminatory hiring practices, it is not recommended that Form I-9 be completed prior to hire. As noted above, a worker s identity and eligibility to accept employment in the United States will be demonstrated by showing documentation which is specifically described in the INA or as may be further designated by the Department of Homeland Security. An employer may not request more or different documents than those designated. Some courts have held that a request for specific documents on the list does not constitute document abuse unless accompanied by an intent to discriminate. However, to avoid a potential claim of discriminatory hiring practices, it is recommended that the employ not request specific documents, but accept any proof of identity and authorization to work presented by a worker, so long as it meets the requirements listed in Form I-9. III COMPLYING WITH IRCA REQUIREMENTS WHEN EMPLOYING WORKERS Completion of Form I-9 upon Hire 1. Completion of Section 1 by the Worker When services will be rendered by an employee (see discussion above) the worker must complete Section 1 of the Form I-9 at the time of hire. As previously noted, it is not recommended that the worker be requested to complete Form I-9 before a decision to hire the worker has been made. In Section 1 of Form I-9, the worker provides basic information regarding name and address, and attests under penalty of perjury that he or she is a U.S. citizen, lawful permanent resident or an foreign national authorized to work in the United States for a limited duration. The services of a translator or preparer acting on behalf of the worker may be used. The worker (and translator or preparer, if applicable) must sign Part 1 of Form I Completion of Section 2 by the employer Within three business day of the worker s completion of Section 1, the employer must physically examine the required documents establishing identity and permission to work in the United States, complete Section 2 of Form I-9, and sign the form. United States Citizenship and Immigration Services (USCIS) has advised that the three business days be counted after the actual date of hire. Thus, if an individual is hired and commences work on a Monday, the third day would be Thursday. The employer is required to examine original documents to ensure that they appear to be genuine on their face and relate to the worker who produces them. The employer is not expected to be a document expert, but must exercise the care a reasonable person would use in reviewing these documents. 7501/ current/ v1 03/16/2016 2:17 PM

13 AN IRCA (IMMIGRATION REFORM AND CONTROL ACT) PRIMER: EMPLOYER OBLIGATIONS 5 I-9 Documents Presently, the documents which are acceptable for Form I-9 verification are listed as part of Form I-9. That List A no longer contains certificates of U.S. citizenship and certificates of naturalization. Since 1987, when the first version of the I-9 form was promulgated, there have been significant changes in the form and in some instances, the list of eligible documents, specifically in 1991, 2005, 2007, and (See attached.) An employee may present either an original document establishing both employment authorization and identity (List A) OR an original document which establishes employment authorization and a separate original document which establishes identity. (List B & C). The USCIS Handbook for Employers (Document M- 274, available on includes photographs of sample documents. 1. Form I-9 List A The following documents establish both identity and work authorization: a. United States passport (unexpired) or passport card; b. Alien Registration Receipt Card or Permanent Resident Card (Form I-551); c. An unexpired foreign passport with a temporary I-551 stamp; d. An unexpired Employment Authorization Document (EAD) that contains a photograph (Form I-766) or e. In the case of a nonimmigrant foreign national authorized to work for a specific employer incident to status, an unexpired foreign passport with Form I-94 (Arrival/Departure record) bearing the same name as on the passport and containing the endorsement of the foreign national s nonimmigrant status, as long as the endorsement has not expired and the employment is not in conflict with any restrictions or limitations identified on Form I-94. f. Passport from the Federated States of Micronesia or the Republic of the Marshal Islands with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association between the United States and the FSM or RMI. 2. Form I-9 List B The following documents establish identity only (for individuals 16 years of age or older): a. Driver s license or identification card issued by a state or outlying United States possession, so long as the document contains a photograph or identification information such as name, date of birth, gender, height, eye color, and address; b. School identification card with photograph; c. A voter s registration card; d. United States military or draft record; e. Identification card issued by federal, state or local government agencies or entities, so long as the card contains a photograph or information such as name, date of birth, gender, height, eye color, and address; f. Military dependent s identification card; g. Native American Tribal document; h. United States Coast Guard Merchant Mariner Card; i. A driver s license issued by the Canadian government; j. For persons under the age of eighteen who are unable to produce one of the documents listed above: A school record or report card; A clinic doctor or hospital record; or 7501/ current/ v1 03/16/2016 2:17 PM

14 6 A daycare or nursery school record. For persons under the age of eighteen who can produce none of the above documents, the minor may be exempt so long as: a. The minor s parent or legal guardian completes on the Form I-9 Section 1 in the space for the minor s signature, the words, minor under age 18. b. The minor s parent or legal guardian completes on the Form I-9 the Preparer/Translator certification. c. The employer or the recruiter or referrer for a fee writes in Section 2 in the space after the words Document Identification # the words, minor under the age 18. Individuals with handicaps, who are unable to produce one of the identity documents listed above who are being placed into employment by a nonprofit organization, association or as part of a rehabilitation program, may follow the procedures for establishing identity provided in this section for minors under the age of 18, substituting where appropriate, the term special placement for minor under age Form I-9 List C The following documents establish work authorization only: a. United States social security card, so long as the card does not state that it is invalid for employment; b. A Certification of Birth Abroad (Forms FS-545 or DS-1350) issued by the U.S. Department of State; c. A birth certificate issued by a state, county, municipal authority, or outlying possession of the United States bearing an official seal; d. A Native American tribal document; e. A United States citizen or resident citizen Identification Card (Forms I-197 or I-179); or f. An unexpired EAD (issued by USCIS). 4. When the Employer Must Accept Receipts for Documents Unless the employment is for a period of less than three business days, the employer must accept the following documents, which are treated as receipts under the regulations. a. Lost, Stolen or Damaged Documents Unless the employer has actual or constructive knowledge that a worker is not authorized to work, the employer must accept a receipt for a replacement document where the individual is unable to produce the required document because it was lost, stolen or damaged, so long as the replacement document is presented within 90 days of hire or reverification. b. Temporary evidence of permanent resident status If the worker has indicated in Form I-9, Part 1 that he or she is a lawful permanent resident, the employer must accept a Form I-94 containing an unexpired temporary form I-551 stamp and a photograph of the individual so long as Form I-551 is presented before the expiration date of the temporary stamp (or if it has no expiration date, within one year of the issuance date of the arrival portion of Form I-94). c. Form I-94 indicating Refugee Status If the worker indicates in Section 1 of Form I-9 that he or she is an foreign national authorized to work, the employer must accept Form I-94 with an unexpired refugee admission stamp if the individual presents within 90 days of hire or reverification an unexpired EAD (Form I-766 or I-688B) or an unrestricted social security account number card and proof of identity. 7501/ current/ v1 03/16/2016 2:17 PM

15 AN IRCA (IMMIGRATION REFORM AND CONTROL ACT) PRIMER: EMPLOYER OBLIGATIONS 7 Photocopying Documents The employer is not required to photocopy the documents that have been shown to it. However, the employer may choose to do so (and it is probably preferable). If the employer wishes to retain copies of employee-submitted documents for its records, the employer should do so for all employees hired. Reverification of Employment Eligibility Where the employee has indicated in Section 1 of Form I-9 that he or she is temporarily authorized to work in the United States, the employer must reverify eligibility for employment by the time his or her limited authorization is expiring. The employer may do so by noting the new document s identification number and expiration date on Form I-9. The revised I-9 form, when it is issued, will likely have a separate (Form I-9A) section to facilitate reverification. It is recommended that a tickler system be established for the employers staff to ensure that the employer complies with the reverification requirement. The employer may also wish to establish a procedure for providing advance notice to employees whose documents will need to be reverified. As with all employment policies, employers should apply any such system uniformly to all workers who have temporary authorization. Note that if the worker is unable to reverify employment eligibility by the time his or her temporary authorization expires, the employer is required to discharge the employee. Retention of Records The employer must retain Form I-9 for each employee for a period of three years from the date of hire or one year after the services are terminated whichever is later. It is advisable to keep I-9 forms separate from other personnel files so that they are readily available in the event of an audit. Additionally, this is also advisable as the forms contain information relating to age, citizenship, place of birth, etc. which may not be considered when making personnel decisions. I-9 forms may be retained electronically. An electronic system used for I-9 retention must be constructed so as to retain an audit trail, not for each time a Form I-9 is electronically reviewed, but rather only for when the Form I-9 is created, completed, updated, modified, altered or corrected. Re-Hires If an employee is rehired within three years after the completion of the original Form I-9, the employer may use the original form to reverify employment eligibility. Certain employees will be considered to be continuing in employment rather than being hired or rehired, where the individual at all times had a reasonable expectation of employment. These include an individual who: Takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer; Is promoted, demoted, or gets a pay raise; Is temporarily laid-off for lack of work; Is on strike on in a labor dispute; Is reinstated after a disciplinary suspension for wrongful termination found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement; Transfers from one distinct unit of an employer to another distinct unit of the same employer (the employer may transfer to the receiving unit the records and Forms I-9 relating to the worker); Is engaged in seasonal employment; or Continues employment with a related, successor or reorganized employer, provided that the employer obtains and maintains from the previous employer the records and Forms I-9 relating to the worker. (Any 7501/ current/ v1 03/16/2016 2:17 PM

16 8 employer which encounters this should consult legal counsel regarding specific requirements pertaining to successor-in-interest.) Whether or not the employee s expectation of resumption of employment was reasonable will be assessed on a case-by-case basis, considering factors such as the employer s past history and financial condition, whether the worker had been employed on a regular and substantial basis, has acted in accordance with employer s established policy regarding absences, has taken action or sought benefits which are inconsistent with resumption of employment (such as severance or retirement pay) and various other factors. Prohibition Against Knowingly Hiring an Unauthorized Foreign National Even if the worker provided a facially valid work authorization document when Form I-9 was completed, if the employer acquires knowledge either actual or constructive that the worker lacks authorization to be employed in the United States, the employer is required to terminate the employment. Under the regulations the employer may be charged with constructive knowledge if it fails to or improperly completes Form I-9, has information available to it that would indicate that the worker is unauthorized (such as Labor Certification or Application for Prospective Employer), or if the employer acts with reckless and wanton disregard in allowing another individual to introduce an unauthorized worker into the workforce. Penalties There are civil monetary penalties for violations pertaining to failure to correctly or timely complete Form I-9, ranging from $110 to $1,100 per worker. Where there has been a good faith attempt to comply with the requirements, violations which are purely procedural or technical may be forgiven, unless the employer has failed to correct a violation within 10 days after being notified of the violation by USCIS or another enforcement agency, or where the employer has engaged in a pattern or practice of hiring unauthorized workers. There are civil monetary fines, for knowingly hiring or continuing to employ a worker not authorized to be employed in the United States as follows: for a 1 st offense, $375-$3,200 per worker; for a 2 nd offense, $3,200- $6,500 per worker; for a 3 rd offense, $4,300-16,000 per worker. All fines indicated are for offenses occurring after September 29, 1999, when the penalties were increased to adjust for inflation.) Penalties may also include issuance of a cease and desist order and, for certain employers who engage in a practice of hiring unlawful workers or who knowingly hire 10 or more unauthorized workers, criminal sanctions. Criminal penalties under 8 USC 1324a(f) include fines for each worker or imprisonment for up to six months, or both. Criminal penalties under 8 USC 1324(a)(3) include fines assessed under Title 18 of the U.S. Code, or imprisonment of up to five years, or both. Finally, federal contractors who knowingly hire unauthorized workers may be barred from federal contracts for one year pursuant to Executive Order (February 13, 1996). Employer Rights in an DHS Visit to Inspect Records DHS, the U.S. Department of Labor (DOL) and the Special Counsel for Immigration Related Unfair Employment Practices (OSC) may conduct inspections of the employer s I-9 forms. These agencies are required to provide the employer with at least three days notice of an inspection. Neither a subpoena nor a warrant is required for an I-9 inspection. In the event of an unannounced work site visit by the DHS seeking to question the employer s employees, the employer has the right to deny entry in the absence of a warrant, although frequently cooperation is to the employer s advantage. In a proceeding to assess administrative penalties, the DHS issues a Notice of Intent to Fine. The respondent has 30 days from service of the Notice of Intent to request a hearing before an Administrative Law Judge. I-9 s and the E-Verify Program E-Verify is an electronic Internet-based system operated by USCIS that verifies employment eligibility based upon information provided by the employee on his or her I-9 form. The information provided is 7501/ current/ v1 03/16/2016 2:17 PM

17 AN IRCA (IMMIGRATION REFORM AND CONTROL ACT) PRIMER: EMPLOYER OBLIGATIONS 9 checked against records of DHS, the Social Security Administration and other available databases to confirm that the identified individual is in fact authorized to work in the United States. It is largely a volunteer program, but certain federal contractors are obligated to participate in E-Verify and several states have mandated that certain employers and contractors within their states participate. There are certain additional obligations when completing an I-9 form for participants in the E-Verify program. They must obtain a social security number (voluntary for non-e-verify participants); they may only accept documents from List B that have a photograph; and even if it is not their policy to maintain copies of the documents, they must take copies of U.S. passport, U.S. passport cards, Form I-551 or Form I-766 if presented, as these documents will be compared (the photographs) to records on file with DHS as part of the E- Verify process. 7501/ current/ v1 03/16/2016 2:17 PM

18 10 CONCLUSION WHAT DOES THE FUTURE HOLD? It is hard to predict what additional obligations will be imposed on employers in the future, but the trend clearly will be to focus on enhancing compliance. It can be anticipated that there will be a significant push to expand use of the E-Verify program and the possibility to make it mandatory for all employers. To counter the problem of identity theft, additional security as to documents such as social security cards and drivers licenses may be mandated. One thing that can safely be predicted is that the burden on employers will increase. 7501/ current/ v1 03/16/2016 2:17 PM

19 EXHIBIT I SUPPLEMENTAL MATERIALS 11 EXHIBIT I SUPPLEMENTAL MATERIALS ENROLLMENT IN THE USCIS E-VERIFY PROGRAM AN EXECUTIVE SUMMARY OVERVIEW The E-Verify program is an electronic internet-based system of employment verification operated by United States Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). Participating employers record all relevant information of a new employee by completing the I-9 form and enter the data into the Internet-based E-Verify system for verification by the Department of Homeland Security (DHS) and the SSA. The system responds, in most cases, nearly instantaneously indicating either that: Employment is authorized; SSA Tentative Non-Confirmation (the SSA cannot immediately confirm employment authorization) DHS verification in process (application pending) DHS Tentative Non-Confirmation (DHS cannot confirm employment authorization) The E-Verify program provides a procedure so that the new hire can contest a non-confirmation with the appropriate agency, while continuing to work, on payroll until resolution. Registration To participate in the E-Verify program, an employer registers online and signs a Memorandum of Understanding with DHS and the SSA. Designated employees or agents of the company are then obligated to read a user manual and complete an online tutorial using the system. An employer can choose to register for E-Verify at one or more sites of employment and can terminate participation in the E-Verify program at any time, with 30 days notice. Obligations An employer participant in E-Verify must verify employment eligibility of new employees only. It must post notices of the employer s participation in E-Verify and an anti-discrimination notice issued by the Office of Special Counsel for Immigration Related Unfair Employment Practices. It cannot use the program to verify current employees (except for certain federal contractors) and the system cannot be used to pre-screen employment applicants. E-Verify Advantages The system may effectively screen out undocumented workers at the time of hire. It may result in better treatment if the company is subject to investigation. In addition, some states have already made E-Verify mandatory and E-Verify for certain federal contractors is obligatory, effective September 8, 2009, per regulation. In addition, some prognosticate that E-Verify in one form or another will eventually become mandatory for all employers across the country. E-Verify Disadvantages Employers under this program must establish and maintain a process and system for maintaining records, following up and monitoring resolution of tentative non-confirmations. It must commit resources to the system. It must be willing to permit DHS and the SSA to make visits on-site to review E-Verify records, and it is 7501/ current/ v1 03/16/2016 2:17 PM

20 12 going on the record by using the E-Verify system as it inputs its I-9 information for new hires into the E- Verify database. SYNOPSIS OFTHE E-VERIFY PROGRAM FOR EMPLOYMENT VERIFICATION MEMORANDUM OF UNDERSTANDING The Memorandum of Understanding, which must be executed in order to participate in the E-Verify program, outlines the duties, responsibilities and obligations of each of the participating parties, which are the SSA, DHS (USCIS, which administers the program is a division within DHS) and the employer. Additional, and to some extent different, terms are provided for those employers who are federal contractors which are not applicable to employers generally. The Memorandum states that the SSA and DHS will undertake to verify the records of potential hires and describes the procedural obligations of the employer. The Memorandum of Understanding (and Manual) provide for certain amendments to the normal I-9 process. It provides that an employer participating in E-Verify, can only accept a List B Document which contains a photo. It also obligates the employer to collect and list the individual s social security number and delay running an E-Verify query for an employee who has not yet been issued a social security number until such time as the number is actually issued. It further obligates the employer to allow for onsite visits to inspect E-Verify records. E-VERIFY VOLUNTARY OR NOT Although the basic E-Verify program is, at this point in time, a voluntary program, there are certain situations under which it could be obligatory to an employer. Specifically, a company which enters into qualifying contracts, or amends certain contracts after September 8, 2009 to provide goods and services to the federal government, might be obligated. In addition, a company that contracts with states which have imposed their own obligations, there are currently 13 of them, or hires in the three states which require use of E-Verify for employees hired within the state may find themselves under the obligation, to at least, in a limited way, register in the E-Verify program. Federal Contractors Not all federal contracts are subject to the E-Verify mandate. Solicitations issued and contracts awarded after September 8, 2009 and existing indefinite-delivery/indefinite-quantity contracts that are substantial and extend at least six months beyond September 8, 2009, are potentially subject. New prime contracts valued above the simplified acquisition threshold of $100,000 with a period of performance longer than 120 days are subject. However, the commitment to participate in this program is not initiated by the contractor, but rather, the contracting officer for the federal government entity is responsible to include an E-Verify clause in any qualifying new contract. Subcontracts that flow from the prime contracts that are for services or for construction with a value over $3,000 are also subject to mandatory E-Verify, and the primary contractor is required to include clauses in its contracts mandating E-Verify participation. Within 30 days from the contract award, the employer is required to enroll in E-Verify, take the tutorial and prepare for actual implementation. Within 90 days after enrollment, the company must commence use of 7501/ current/ v1 03/16/2016 2:17 PM

21 EXHIBIT I SUPPLEMENTAL MATERIALS 13 E-Verify for new hires and current employees assigned to the contract. If the company chooses to E-Verify all of its current employees rather than just those assigned to the contract, it has 180 days from enrollment to do so. One of the most difficult and perhaps most important determinations that a company must make is whether any of the contracts it anticipates engaging in are in fact subject to the Federal Acquisition Regulation (FAR). As the FAR is the government-wide regulation that prescribes regulations for federal government entities acquiring goods and services, the first principle is that the FAR is only applicable to contracts where a federal government entity is acquiring goods or services from a private contractor. An acquisition is defined as the acquiring by contract with appropriated funds of supply or services including construction by and for use of the federal government for purchase or lease, whether the supplies or services are already in existence or must be created, developed, demonstrated or evaluated. E-VERIFY IN THE STATES As noted by the National Conference of State Legislatures, seventeen states currently require the use of E- Verify for public and/or private employers (fifteen through legislation and two, Florida and Idaho, through Executive Orders). Minnesota and Rhode Island previously enacted Executive Orders requiring state agencies and contractors to use E-Verify, but those orders were rescinded. States currently requiring E-Verify are: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisana, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, Tennessee, Utah, and Virginia. Alabama, Arizona, Georgia, Mississippi, South Carolina, and Utah, currently require the use of E-Verify for all employers in their states. Louisiana does not make it obligatory, but use of E-Verify is a safe harbor. North Carolina will make it oligatory on all employers with more than 500 employees, as of October 1. As these state laws require use of the original, voluntary version of the E-Verify program, only E- verification of new hires is mandated by these laws. CONCLUSION In conclusion, if the employer receives a new federal contract or is asked to amend one, the government agent will notify the employer and advise if the federal government is of the opinion that registration in the E- Verify program is necessary. In addition, if the employer is doing business in any of the seventeen states listed above, it may need to contact legal counsel to investigate whether it must, in fact, make use of the E- Verify program. 7501/ current/ v1 03/16/2016 2:17 PM

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23 Proskauer Rose LLP One Newark Center Newark, NJ A New York Limited Liability Partnership Lawrence R. Sandak, Managing Resident Partner David Grunblatt Member of the Firm d f dgrunblatt@proskauer.com An Outline of The U.S. Non-Immigrant Visa Classifications And Methods of Qualifying for Lawful Permanent Status in the United States This listing of visa classifications is intended to furnish you with an overview of the U.S. visa process and a general description of the various types of visas issued by the U.S. government. THE NON-IMMIGRANT VISA PROCESS NON-IMMIGRANT VISA CATEGORIES Non-immigrant visas with alphabetical designations from A through V are issued by Foreign Service Offices of the U.S. Department of State at U.S. Embassies and Consulates abroad. Visas are stamped into a valid travel document, usually a passport. The visa bears the date of its issuance as well as the date of its expiration. It also designates the number of applications for admission at the U.S. border for which it is valid. At the border, a different agency of the government, the Department of Homeland Security; Customs & Border Patrol (CBP) division has jurisdiction to admit the alien in the status for which the visa has been granted, and does so by creating an admission record (Form I-94). For most applicants for admission, this is done electronically. For some, it is done by endorsing an admission slip which is attached to the alien's passport, including recording the date of entry, the status in which the alien is admitted, and the duration of his or her authorized stay. For those for whom admission was recorded electronically, a copy can be obtained at Future extensions of this stay are endorsed on a newly-issued United States Citizenship and Immigration Services (USCIS) Form I-797. Citizens of Canada may, under certain circumstances, present themselves at the border with appropriate documentation to request admission under the various non-immigrant visa categories without first obtaining visa stamps at a U.S. Embassy or Consulate. In addition, under a special program (the "Visa Waiver Pilot Program") nationals of a number of countries have been allowed to enter the United States as visitors without first obtaining a visa stamp. Boca Raton Boston Chicago Hong Kong London Los Angeles New Orleans New York Newark Paris São Paulo Washington, D.C. 7501/ current/ v1 03/16/2016 2:14 PM

24 March 16, 2016 Page 2 CHANGE FROM ONE NON-IMMIGRANT VISA CLASSIFICATION TO ANOTHER An alien who enters in one non-immigrant classification may, with limited exceptions, apply to change to another non-immigrant status while in the United States. The application must be made while the alien is in lawful status, that is, during the authorized period of stay and with no violation of status such as unauthorized employment. CHANGE TO IMMIGRANT CLASSIFICATION An alien who enters in a non-immigrant classification may, under certain conditions and usually after the filing and approval of a petition classifying the alien in a preference category, apply to change status to that of a lawful permanent resident (evidenced by a "green card") through a process called "adjustment of status." In cases where the alien otherwise qualifies for immigrant status, but has engaged in unauthorized employment while here temporarily, or has violated the terms of a nonimmigrant visa, and would therefore, in most instances be ineligible for adjustment of status, may, under certain circumstances, nevertheless obtain residence through the issuance of an immigrant visa at an American Consular Post abroad. PRESUMPTION OF IMMIGRANT INTENT By law, all persons applying for visas or for admission at the border as nonimmigrants, are presumed to have the intention of residing here permanently as immigrants. (An exception to this rule applies to certain "H" and "L" visa holders.) Accordingly, all intending non-immigrants have the burden of proving that their intent is non-immigrant in nature. For example, they must generally prove the existence of an unrelinquished foreign domicile to which they intend to return upon the conclusion of their temporary purpose in the United States. The same burden applies when applications are filed for extensions of non-immigrant status, revalidation of nonimmigrant visas or other benefits which presuppose an intention to depart. CONSEQUENCES OF REMAINING BEYOND AUTHORIZED STAY Overstaying even for one day, will have the effect of invalidating the alien's nonimmigrant visa, which may not then be used for return to the United States. Moreover, with certain exceptions, an individual who has overstayed may only apply for a new visa in the country of his or her nationality, eliminating "third country processing" at American Consulates at more convenient locations (such as Canada or Mexico). 7501/ current/ v1 03/16/2016 2:14 PM

25 March 16, 2016 Page 3 In addition, any individual who overstays for 180 days or longer but less than one year is inadmissible for three years from the date of departure and one who overstays for one year or more is inadmissible for ten years. It is therefore critical that any individual admitted into the United States carefully monitors and complies with expiration dates assigned. NON-IMMIGRANT CLASSIFICATIONS B-1, Visitor for Business A visitor for business is an alien who intends to conduct business in the United States which benefits a foreign employer, not in the nature of employment. He or she may generally not engage in local employment, nor displace a resident American worker, nor receive any direct remuneration for services from a United States source. The B-1 visitor may be initially admitted to the United States for a maximum period of one year until the purpose of the trip has been completed, and may apply for extensions of stay which are necessary to complete that purpose. B-2, Visitor for Pleasure A visitor for pleasure is an alien admitted for a personal visit to friends or relatives, on holiday or for tourism. The initial period of admission is typically six months. Extensions of stay are permitted in appropriate circumstances. Persons coming primarily for the purpose of performing skilled or unskilled labor, university study, or representing information media are not properly classifiable as B-2 visitors. Visitors may not engage in employment in the United States. Visitors - Visa Waiver Program Pursuant to the Visa Waiver Program, nationals from a list of thirty-six countries, so designated based upon a historically low rate of non-immigrant visa refusals, have been permitted to enter the United States as visitors for business or pleasure without first obtaining visas. Individuals entering under this program are permitted to remain in the United States for a maximum period of 90 days, and are generally barred from extending their stay or changing status while in the United States. 7501/ current/ v1 03/16/2016 2:14 PM

26 March 16, 2016 Page 4 Visa Waiver countries include: Andorra Denmark Iceland Luxembourg San Marino Switzerland Austria Estonia Ireland Malta Singapore Taiwan Australia Finland Italy Monaco Slovakia United Kingdom Belgium France Japan Netherlands Slovenia Brunei Germany Latvia New Zealand South Korea Chile Greece Lichtenstein Norway Spain Czech Republic Hungary Lithuania Portugal Sweden In order to participate in the Visa Waiver Program, one must register online with the Electronic System for Travel Authorization (ESTA) operated by Customs and Border Patrol (CBP) part of the Department of Homeland Security. Pursuant to the Consolidated Appropriations Act of 2016 signed into law on December 18, 2015, nationals of VWP countries, who have been present in Iraq, Syria, Iran, or Sudan or who are dual nationals of Iraq, Syria, Iran, or Sudan, are not eligible to participate in the Visa Waiver Program with limited exceptions. Additional countries can be designated. C-1, Transit Alien A transit alien is an alien in immediate and continuous transit through the United States. A maximum period of twenty-nine days is authorized, not subject to extension. D, Alien Crewmen Alien crewmen, serving in such capacity while in port, are generally admitted for a maximum of twenty-nine days, not subject to extension. E-1, Treaty Trader A treaty trader is an alien who enters the United States in pursuance of the provisions of a Treaty of Commerce and Navigation between the United States and the foreign country of which the alien (and the alien's employer) is a national. A person is a national of a country whose passport he carries, regardless of place of birth. The E-1 visa holder must be coming solely to carry on substantial trade principally between the United States and the foreign country of which he/she is a national. The initial period of admission is for two years, and extensions of stay are possible. While there is no requirement for an overseas unrelinquished domicile, the alien must intend to 7501/ current/ v1 03/16/2016 2:14 PM

27 March 16, 2016 Page 5 return to a home abroad once the purpose of admission has been accomplished. Spouses may apply for employment authorization. E-2, Treaty Investor An alien who enters pursuant to the provisions of a Treaty of Commerce and Navigation between the United States and the foreign country of which he/she is a national, coming solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing a substantial amount of capital, qualifies for E-2 status. The initial period of admission is two years, with extensions available in appropriate circumstances. Certain employees of firms which have made a substantial investment also may qualify. Spouses may apply for employment authorization. E-3, Australian Specialty Workers Australian citizens/nationals who are seeking employment in a specialty occupation requiring possession of a Bachelor s Degree or higher (or its equivalent) qualify for E-3 status. F-1, Student (see also M-1 status for nonacademic students) Bona fide students qualified to pursue a full course of study in an educational program, who seek to enter the United States temporarily and solely for the purpose of pursuing such a course of study at an established institution of learning which has been approved by the Department of Homeland Security for attendance by foreign students qualify for F-1 status. The 1996 Immigration Act ("IIRAIRA) prohibits according F-1 status to an alien for the purpose of attending public elementary schools or publicly-funded adult education programs. F-1 visas may be issued for attendance at public secondary schools only when the alien reimburses the educational agency administering the school for the expense of providing such education and the period of stay does not exceed 12 months. The alien spouse and minor children of such aliens are classified in F-2 category. Schools and students are carefully monitored through an interactive web-based system known as SEVIS that tracks all schools who sponsor non-immigrant students in the United States and on an ongoing basis the current status of all non-immigrant students registered. Students are generally admitted for "duration of status." Duration of status is defined to include the program of study, any period of practical training authorized, plus an additional sixty days. Students must obtain permission to accept employment. Authorization for part-time employment is issued in very limited circumstances (although not in the first year of the program), either based upon unforeseen financial hardship or for practical training. A limited period of practical training authorization may also be obtained at the conclusion of a bona fide educational program and during the student's course of study, particularly where such training is unavailable in the student's home country. 7501/ current/ v1 03/16/2016 2:14 PM

28 March 16, 2016 Page 6 The normal period of Optional Practical Training is twelve (12) months, but pursuant to a recently published regulation (subject to litigation), STEM students (Science, Technology, Engineering and Math) are eligible for an additional twenty-four (24) months of practical training, subject to monitoring and supervision by the employer and Department of Homeland Security. H-1A/Nurses A temporary program has allowed for aliens with appropriate qualifications to be employed temporarily in the United States performing services as registered nurses. Special rules apply to institutions seeking eligibility to petition for foreign nurses. H-1B, Specialty Occupation Workers An alien coming temporarily to the United States to perform services in a "specialty occupation" qualifies for this status upon approval of a petition filed by a sponsoring employer. By statute and precedent decision, this includes all qualified professionals. H-1B status can also appropriately be used for visiting faculty, highly skilled specialists and consultants. While it must be shown that the alien will be coming temporarily to perform services, the position itself can be of an ongoing nature. H-1B aliens are admitted for the period of time approved by USCIS in a petition to classify the alien in H-1B status, not to exceed an initial period of three years, and extensions of stay may be obtained in appropriate circumstances. The statute places a limit of six years on a single uninterrupted stay in H-1B status. There is a numerical limitation on how many new H-1 approvals can be issued in any fiscal year (October through September) which results in such visas being unavailable for significant parts of the year. In addition, filing fees for this visa category are very substantial Labor Condition Attestation Application As a prerequisite to filing a petition for an H-1B specialty occupation worker, a labor condition attestation application must be filed with the Department of Labor. Included in this attestation, which provides the title and salary for the position and the location where the non immigrant will work, is an assertion that the actual wage level paid to other employees or the prevailing wage (whichever is higher) is being paid, that the employment will not adversely affect the working conditions of workers similarly employed, that there is not a strike, lockout or work stoppage involved in this employment, and that notice of the filing has been either provided to the bargaining representative or, if there is no bargaining representative, that such notice has been properly posted. H-2, Temporary Worker This category is applicable to aliens coming temporarily to perform temporary services or labor, provided that unemployed persons capable of performing such services cannot be found in the 7501/ current/ v1 03/16/2016 2:14 PM

29 March 16, 2016 Page 7 United States. Prearranged employment must exist, and the petitioner/employer must demonstrate to the USCIS that unemployed Americans capable of performing these services cannot be located and that the alien is coming temporarily to perform services which are themselves temporary in nature. An application must be made for a certification to the U.S. Department of Labor to show that American workers are unavailable. The initial period of admission is, as authorized by the U.S. Department of Labor and by USCIS, not to exceed one year. Extensions may be obtained in limited circumstances. This visa status may not be held for longer than three years by regulation. There is a numerical limitation on how many new H-2 approvals can be issued in any fiscal year (October through September) which result in such visas being unavailable for significant parts of the year. H-3, Trainee A trainee is an alien coming temporarily to the United States for training together with the spouse and minor children of such alien at the invitation of an individual, organization, firm or other trainer in any field of endeavor, including agriculture, commerce, communications, finance, government, transportation and the professions as well as in a purely industrial establishment. The petitioner must describe the type of training to be given, the source of remuneration of the trainee and whether or not any benefit will accrue to the petitioner, and must demonstrate why it is necessary for the alien to be trained in the United States. The trainee is not permitted to engage in productive employment unless it is incidental and necessary to the training and may not take up employment which will displace a U.S. resident worker. The period of initial admission is that approved by the USCIS in a petition filed by the sponsoring employer-trainer, generally the full period required for training. Extensions are available in limited circumstances, up to a total limit of two and a half years. I - Journalist An alien is admitted in I status, upon a reciprocity basis, as a bona fide representative of a foreign press, radio, film or other foreign information media, who seeks to enter the United States solely to engage in such vocation, and the spouse and children of such representative. The initial period of admission is one year. J - Exchange Alien An alien who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, coming temporarily as a participant in a program designated by the United States Information Agency for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, practical training, etc. in an approved exchange program, and the alien's spouse and minor children of such participant, are admissible in J-1 and J-2 visa categories. Certain J aliens are by law required to return to their own country for a period of two years to impart the knowledge they have gained in this 7501/ current/ v1 03/16/2016 2:14 PM

30 March 16, 2016 Page 8 country before they may apply for status as immigrants or obtain certain other non-immigrant statuses, unless a waiver of such two year period is granted. The initial period of admission is as specified in program Form DS2019 (formerly IAP-66). The exchange visitor program is carefully monitored through the Department of Homeland Security s interactive website known as SEVIS much in the same manner as is applicable to F-1 students. K-1 Status - Fiancé or Fiancée of U.S. Citizens Those engaged to be married to U.S. citizens who seek to enter the United States solely to conclude a valid marriage with the U.S. citizen petitioner within 90 days after entry, and the minor children of such persons. The period of admission is 90 days, and is not subject to extension. K-3 Status Spouse of United States Citizen This visa classification is available to individuals for whom a United States citizen spouse has filed an immigrant visa petition which remains pending. This visa classification facilitates entry into the United States to such a spouse of a United States citizen (and his or her minor child) while awaiting processing and adjudication of the immigrant visa petition. L-1, Intra-company Transferee An L-1 intra-company transferee is an alien who, during the three year period immediately preceding the time of his or her application for admission into the United States, has been employed for one year by a firm or corporation or other legal entity (or an affiliate or subsidiary thereof) and who seeks to enter the United States temporarily in order to continue to render his services to the same employer (or an affiliate or subsidiary thereof) in a capacity which is managerial, executive or involves specialized knowledge. The L-1 petition filed with USCIS may be granted with an initial validity of up to three years. Extensions may be available thereafter if such need is sufficiently documented. The statute limits the total stay in L-1 status (or L-1 and H-1 status combined) to five consecutive years for "specialized knowledge" L-1's and seven years for "executive" or "managerial" L-1's. The spouse and minor children (L-2) of such aliens are generally granted periods of admission and extension to match those of the primary applicant spouses, and may apply for employment authorization. M-1, Non-academic Student Bona fide students seeking to enter the United States to pursue a full course of study at an established vocational or other recognized non-academic institution, other than in a language training program, qualify for M-1 visas. The alien spouse and minor children of such aliens are 7501/ current/ v1 03/16/2016 2:14 PM

31 March 16, 2016 Page 9 classified in the M-2 category. Non-academic students are admitted for the period of their school program plus thirty days. Employment authorization will not be granted, but a limited period of "practical training" may be authorized at the end of the program. N, Relatives of Employees of Certain International Organizations Certain relatives of long-term employees of the United Nations and other international organizations are eligible to remain in the United States under this provision. O-1, Aliens of Extraordinary Ability O-1 visas are issued to aliens of "extraordinary ability" in the sciences, arts, education, business and athletics, as demonstrated by "sustained national or international acclaim", whose entry the Attorney General believes will "substantially benefit prospectively" the United States. Formerly, this class of aliens was included in the H-1B designation. Consultation with unions, management groups and other outside sources is required to determine status as "extraordinary". O-2, Assistants to Aliens of Extraordinary Ability O-2 visas are issued to aliens entering for the purpose of assisting the performance of an alien of extraordinary ability must establish that they are an integral part of the performance because of critical skills or long standing relationship with the principal performing alien. P-1, Athletes and Entertainers Athletes and entertainers, in the case of athletes performing as individuals or groups and entertainers performing as a group recognized at an international level are issued P-1 visas (requires consultation with appropriate unions.) Formerly included in H 1B visa category. P-2, Athletes and Entertainers (Exchange) Athletes and entertainers entering the United States to perform under reciprocal exchange programs are issued P-2 visas. Formerly part of H-1 visa category. P-3, Athletes and Entertainers (Cultural) Athletes and entertainers entering to perform in a culturally unique program, requiring consultation with the union, are issued P-3 visas. Formerly part of H-1 visa category. Q, Cultural Exchange 7501/ current/ v1 03/16/2016 2:14 PM

32 March 16, 2016 Page 10 Aliens entering the United States to participate in designated international cultural exchange programs that provide practical training, employment and sharing of culture may obtain Q visas. The maximum period permitted under this visa category is fifteen months. 7501/ current/ v1 03/16/2016 2:14 PM

33 March 16, 2016 Page 11 R, Religious Occupations Certain religious workers entering the United States to perform religious work or work for a religious organization, who have bona fide membership in a religious denomination for at least two years preceding the application, and their spouses and children, qualify for R visas. S, Witnesses and Informants Certain aliens who will be serving as witnesses in federal or state court with respect to criminal enterprises, when such alien is determined by the Attorney General to possess critical and reliable information; certain aliens who will provide critical and reliable information, as determined by the Secretary of State and Attorney General jointly, respecting terrorist organizations or operations, to Federal law enforcement authorities or a federal court, and where appropriate the spouse, married or unmarried sons and daughters and parents of such alien, may be accorded S visas. T, Certain Victims of Trafficking in Persons Certain aliens who have been victims of severe forms of trafficking in persons who are physically present in the United States and have assisted in the investigation of the prosecution of acts of trafficking and the spouse, children and parents of such victim maybe eligible for this classification. U, Victims of Severe Criminal Activity/Materials Witnesses Aliens who have suffered substantial physical or mental abuse as a result of having been a victim of criminal activity involving one or more of the violation of certain federal, state or local criminal statutes relating to rape, torture, trafficking, incest, domestic violence and other such similar crimes and individuals having knowledge of such crimes may under appropriate circumstances be eligible for this visa classification. V, Special Limited Provision for Spouses and Children of Permanent Residents An alien may be classified in the V non-immigrant category if the beneficiary of a petition according preference status was filed with the Attorney General on or before December 21, 2000 and such petition has been pending for three years or more. Children of the principal alien are eligible to receive this benefit as well. 7501/ current/ v1 03/16/2016 2:14 PM

34 March 16, 2016 Page 12 PERMANENT RESIDENT (IMMIGRANT) ALIEN STATUS CATEGORIES The status of a lawful permanent resident of the United States may be obtained by applicants who meet both the qualitative and quantitative requirements of the law. Qualitatively, they must prove themselves not to be ineligible for immigrant status under any of the general categories of inadmissible aliens specified in the law (8 U.S.C. 1182(a)), including criminality, mental defect, Communist party affiliation, drug trafficking, terrorism, etc. Quantitatively, they must either obtain preference classification based upon the petition of specified close relatives who are permanent residents or citizens of the United States; or upon the petition of a sponsoring employer or prospective employer for occupational preference; or based on a major investment in the United States; or through selection through the Diversity (lottery) Visa program. The effect of the law's national and worldwide quota limitations often results in extended waiting periods before permanent resident status may be finally obtained. Such status may be sought either through an immigrant visa application before a U.S. Consular Officer abroad or, in certain circumstances, in adjustment of status proceedings within the United States. EMPLOYMENT-BASED IMMIGRANTS The Immigration Act of 1990 presented Congress' most recent revision of the visa allocation formula. The great majority of these visas are allocated for the various categories of family reunification. 140,000 visas are provided for employment-based immigration. The Immigration Act now defines five categories or preferences (of which three have additional subcategories of their own) for immigration based on employment or employment-creation: PREFERENCE I "PRIORITY WORKERS" (40,000 VISA NUMBERS AVAILABLE PLUS SPILL DOWN FROM PREFERENCES IV AND V) Employment I - Sub-category I (E11) Aliens with "extraordinary ability" in arts, sciences, education, business or athletics. To qualify in this sub-category, the applicant must show sustained national or international acclaim, achievements recognized through extensive public documentation and be able to demonstrate that his or her contribution would "substantially benefit" the United States prospectively. 7501/ current/ v1 03/16/2016 2:14 PM

35 March 16, 2016 Page 13 Employment I - Sub-category II (E12) Outstanding Professors and Researchers. To qualify in this category, the applicant must establish international recognition or acclaim, at least three years' experience in teaching or research in the field and have available an offer of employment for a tenured or tenure-track teaching position or comparable research position in private industry. Employment I - Sub-category III (E13) Certain Multi-national Executives and Managers. An intra-company transferee who can show at least one year's employment overseas with a sponsoring employer within the three-year period immediately prior to transfer into the United States, who was employed as an executive or manager and is transferred to the United States to perform similar executive or managerial duties (whether or not he or she has a university degree). PREFERENCE II PROFESSIONALS AND ALIENS OF "EXCEPTIONAL ABILITY" (40,000 VISA NUMBERS AVAILABLE PLUS SPILL DOWN FROM PREFERENCE I) Immigrant status is available to qualified immigrants who are members of the professions holding advanced degrees or their equivalent, or who because of their exceptional ability (which must be demonstrated by more than just a degree or license) in the sciences, arts or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States. A certification must be obtained from the Department of Labor that there are not American workers ready, willing and available for the position, in most cases. Such certification and a specific job offer may not be necessary for applicants in this category if the work is established to be in the national interest. An employer must register online with the Department of Labor in order to submit an application for labor certification which can only be submitted once the employer has obtained the prevailing wage determination, conducted appropriate recruitment under specific regulatory guidelines, and posted a specific notice as to the availability of the position. 7501/ current/ v1 03/16/2016 2:14 PM

36 March 16, 2016 Page 14 PREFERENCE III SKILLED WORKERS, PROFESSIONALS AND OTHER WORKERS (40,000 VISAS PER YEAR PLUS ANY UNUSED VISAS UNDER PREFERENCES I AND II) Employment III - Sub-category I (E31) Skilled Workers - An alien qualifies as a skilled worker if at the time of petitioning for classification, the alien qualifies to perform skilled labor requiring at least two years' training or experience and is being sponsored for a position which is not temporary or seasonal in nature, for which qualified workers are not available in the United States. Employment III - Sub-category II (E32) Professionals - This category is reserved for professionals, defined as aliens holding baccalaureate degrees and members of the professions employed in positions for which United States workers are not available. Employment III - Sub-category III (EW) "Other Workers" - This sub-category is reserved for aliens capable of performing unskilled labor not of a temporary or seasonal nature for which qualified workers are not available in the United States. Since a cap of 10,000 visas (within this overall 40,000 limit) is set for applicants seeking to qualify as "other workers," there is a substantial waiting period under this sub-category. Labor Certification Process For the Employment III Sub-Category, a certification must be obtained from the Department of Labor that there are not American workers ready, willing and available for the position, in most cases. An employer must register online with the Department of Labor in order to submit an application for labor certification which can only be submitted once the employer has obtained the prevailing wage determination, conducted appropriate recruitment under specific regulatory guidelines, and posted a specific notice as to the availability of the position. 7501/ current/ v1 03/16/2016 2:14 PM

37 March 16, 2016 Page 15 PREFERENCE IV SPECIAL IMMIGRANTS (10,000 VISAS AVAILABLE PER YEAR) This category is reserved for certain qualified special immigrants such as religious workers, certain former United Nations employees, etc. The religious worker category generally requires two years' prior experience in a religious occupation, profession or the ministry. PREFERENCE V EMPLOYMENT-CREATION IMMIGRANTS (10,000 VISAS AVAILABLE PER YEAR) This "investor" provision provides visas to applicants who invest a minimum of a million dollars in a new enterprise in the United States which will result in the creation of employment for at least ten "qualified workers" (United States citizens, permanent residents, and certain other individuals who are authorized to work) other than immediate family members of the investor. In certain exceptional circumstances, including where the investment is made in an area of high unemployment or a rural area, the amount may be reduced to $500,000 and under other circumstances increased to as much as $3 million. 7501/ current/ v1 03/16/2016 2:14 PM

38 March 16, 2016 Page 16 FAMILY-SPONSORED PREFERENCES AND DIVERSITY IMMIGRANTS (a) Family Sponsored Immigrants Immediate relatives of U.S. citizens (including the spouse, minor children and parents of adult U.S. citizens) remain an unrestricted category, not subject to numerical limitation and therefore not subject to long waiting periods. However, the number of immediate relative applicants admitted is tabulated and can impact on and reduce the number of visas available in the familysponsored preference categories. Family relationships which are also eligible for preference consideration are the following: First Preference Second Preference Unmarried Sons and Daughters of United States Citizens Divided into two Sub-Categories; Sub-Category One Spouses and Unmarried Children of Permanent Resident Aliens Sub-Category Two - Unmarried Adult Sons and Daughters of Permanent Resident Aliens Third Preference Fourth Preference Married Sons and Daughters of United States Citizens Brothers and Sisters of United States Citizens (b) Diversity Immigrants "Diversity immigration" is another of the euphemisms found in the Immigration Act of In fact, this term refers to certain "lottery" programs where citizens of a number of designated countries which have been statistically unrepresented in immigration to the United States in recent years, may file an online application with the State Department for possible random selection for immigrant visas without any reference to the applicant's relationship to United States citizens, permanent residents, or U.S. employers. Under present regulations, a lottery 7501/ current/ v1 03/16/2016 2:14 PM

39 March 16, 2016 Page 17 applicant must have at least a high school education or two years' experience in a position which requires such experience. TAX NOTES Who is a resident for tax purposes? The Deficit Reduction Act of 1984 creates a statutory definition of the term "resident alien" for tax purposes. Included are two tests, one based upon visa status and the other based upon "substantial presence" in the United States. Pursuant to I.R.C. Section 7701(b)(1)(A)(i), an alien who has been granted the immigration status of U.S. permanent residence is a resident for U.S. tax purposes, without exception. Absence from the United States for the entire year does not prevent the absolute determination that the person is a resident for tax purposes unless the status of permanent residence has been terminated under the immigration laws. I.R.C. Sec. 7701(b)(5). Permanent residence status can be relinquished in appropriate cases. Under the "substantial presence" test, an individual is a resident for tax purposes if he has been physically present in the United States for 183 days or more within the calendar year. I.R.C. Sec. 7701(b)(3)(A)(ii). Alternatively, one is deemed "substantially present" in the United States if he has been "cumulatively present" in the United States over the last three years for a sufficient number of days. Cumulative presence is calculated by means of a complex formula, set forth in the statute. An exception to the cumulative presence rules is provided for an individual alien who is able to show that his "tax home" and family connections remain in a foreign country. Teachers, students and certain employees of foreign government agencies may be exempt from the resident alien rules, under certain circumstances. A Word about Estate Taxes and Immigration Status Pursuant to IRC Section 2056(d), as amended in November 1988, in cases of transfers made by a U.S. citizen or resident decedent to a surviving spouse who is not a citizen of the United States, the marital deduction is not available unless there is a disposition by means of a qualified domestic trust. Accordingly, it may be important for spouses to consider applying for naturalization as U.S. citizens to avoid excessive estate taxes. Further Advice This memo is not intended to be all-inclusive or to furnish advice in a particular case. Please feel free to contact our office for further information and advice. 7501/ current/ v1 03/16/2016 2:14 PM

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41 BASIC IMMIGRATION LAW An Introduction to Immigration (Without Walls) for 2016 Introduction and Overview of Non-Immigrant Categories David Grunblatt April 11, 2016

42 IMMIGRATION TRENDS I will build a great wall and nobody builds walls better than me, believe me and I ll build them very inexpensively, I will build a great, great wall on our southern border, and I will make Mexico pay for that wall. Mark my words. Donald Trump

43 Agencies Administering Immigration Law Department of Homeland Security U.S. Citizenship and Immigration Service Immigration and Custom Enforcement Customs and Border Protection U.S. Department of State U.S. Department of Labor State Departments of Labor Health and Human Services U.S. Department of Justice Executive Office for Immigration Review

44 Sources of Immigration Law Immigration and Nationality Act of 1952, as amended (8 USC) Regulations: 6 CFR, 8 CFR, 20 CFR, 22 CFR Foreign Affairs Manual Government manuals: Adjudicators Manual USCIS/Legacy INS Memos and Letters USDOS Cables USDOL FAQs U.S. Supreme Court and Federal Court Decisions BIA and AAO Decisions Secondary: treatises, textbooks, bar association publications

45 Basic Types of U.S. Immigration Status U.S. Citizen Lawful Permanent Resident (also, conditional or temporary resident) Nonimmigrant Asylee Refugee Parolee Undocumented or without status

46 The Visa Process The Two Principal Categories - Immigrants & Non- Immigrants The best way to understand U.S. immigration law is to know that the world of non U.S. nationals is divided into two principal categories: Immigrants & Non-Immigrants. Immigrants are foreign nationals who are permitted to live and work in the U.S. on a permanent basis. Other names for immigrants are lawful permanent residents, or green card holders. In general, persons may qualify for immigrant (i.e., resident alien) status either by having a very close family relationship with a U.S. citizen or permanent resident, or by having special job skills which are deemed to be in short supply.

47 The Visa Process The Two Principal Categories - Immigrants & Non-Immigrants Unlike immigrants who may remain in the U.S. permanently, nonimmigrants are persons who are coming to the U.S. for a temporary period only. The ability of a foreign national to qualify for a work-authorized, non-immigrant status will depend upon the specific requirements of the position, the particular qualifications of the individual, and the legal requirements to qualify for a particular status.

48 The Visa Process Presumption of Immigrant Intent By law, all persons applying for visas or for admission at the border are presumed to have the intention of residing here permanently as immigrants. Accordingly, all intending nonimmigrants have the burden of proving that they are eligible for such non-immigrant status. For example, they must generally prove the existence of an unrelinquished foreign domicile to which they intend to return to upon the conclusion of their temporary purpose in the United States. The same burden applies when applications are filed for extensions of non-immigrant status & revalidation of nonimmigrant visas.

49 The Visa Stamp The Visa Process Non-immigrant visas are issued by Foreign Service Officers of the U.S. Department of the State at U.S. Embassies and Consulates abroad. Visas are stamped into a valid travel document, usually a passport. The visa bears the date of its issuance as well as the date of its expiration. It also designates the number of applications for admission at the U.S. border for which it is valid.

50 The Visa Process The Visa Stamp

51 The Form I-94 The Visa Process At the border, a different agency of government, the U.S. Customs and Border Protection (CBP), part of the Department of Homeland Security, has jurisdiction to admit the alien in the status for which the visa has been granted, and until last year did so by endorsing the admission slip (Form I-94) which is attached to the alien s passport, recording the date of entry, the status in which the alien is admitted, and the duration of his/her authorized stay. Commonly, with regard to L & H visa holders, the officer will admit the individual for the same amount of time for which his/her visa stamp, or Notice of Action (Form I-797) is valid.

52 The Form I-94 The Visa Process The I-94 form is surrendered each time the individual departs the United States (except if he/she is traveling to Canada or Mexico for less than 30 days) and a new one is issued upon reentry to the U.S.

53 The Visa Process I-94 Automation CBP has automated Form I-94 processing at air and sea ports of entry. The paper form is no longer provided to a traveler upon arrival, except in limited circumstances. The traveler is provided with a CBP admission stamp on the travel document. If a traveler needs a copy of the I-94 for verification of alien registration, immigration status or employment authorization, it can be obtained from

54 The Visa Process Form I-94 Printout Obtained from

55 The Visa Process Form I-797

56 Sponsoring Foreign Nationals Has Never Been So Complex Numerical limitation (cap) on the H-1 visa (the workhorse visa for professional workers) Numerical limitation (cap) on H-2 visas (the workhorse visa for temporary and seasonal workers) 15

57 Sponsoring Foreign Nationals Has Never Been So Complex (Cont d) Quotas for immigrant/permanent resident employment categories severe backlogs Processing delays security clearance delays 16

58 Employment-based Permanent Residence Annual per country limitations Each country s allotment is divided by category of application Length of the quota wait is determined by country and basis for green card Cannot proceed to final step and final step cannot be adjudicated until place in line is met The wait can be years 17

59 EMPLOYMENT VISA PETITIONS AND CONTRACTS OF EMPLOYMENT 18

60 H-1B Specialty Occupation Professionals Workhorse of business immigration Numerical limitation: 65,000 per year Specialty Occupation - Entry level requirement = minimum Bachelor Degree or equivalent 3 for 1 rule -- 3 yrs. experience = 1 yr. of college Labor Condition Application required Six-Year Maximum Stay (can extend under certain circumstances - AC-21) 19

61 Challenges of H-1B Numerical limitation Expected to be met in early April Random Selection Gap in employment authorization for new graduates 20

62 Alternatives to H-1B Intra Company Transferees (L-1) Intra-company transferees, if overseas branch Is TN classification for Canadians and Mexicans H-1B1 classifications for Chileans and Singaporeans E-3 classification for Australians J-1 Exchange visitors H-3 Trainees O-1 s for Aliens of extraordinary ability 21

63 If none of these work Hope that you can find an American, a green card holder, or a refugee or asylee! 22

64 Permanent Residence Family-based Immediate relative Four preference categories Employment-based Five preference categories Diversity Visa Lottery

65 Naturalization to U.S. Citizen Lawful permanent resident for at least 5 years (3 years in some circumstances if married to a U.S. citizen) Must be eligible

66 HIRING ISSUES 25

67 Recruiting DOs and DON Ts - Pre-hiring Questions In 1998 the OSC blessed the following two questions as permissible in the pre-hiring process: Are you legally authorized to work in the United States? Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)? 26

68 Additional Approved Pre-Hire Questions Will you now or in the future require sponsorship for an employment visa? If you have a visa, how much time remains on your current visa? Will you now or in the future require sponsorship for an immigration-related employment benefit? For purposes of this question sponsorship for an immigrationrelated employment benefit means an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and job flexibility benefits (also known as I-140 portability or Adjustment of Status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer. (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.) 27

69 David Grunblatt Professionals Proskauer 1 of 2 4/8/2016 3:53 PM Follow Immigration & Nationality International Private Client Services professionals Awards & Recognition Expand All >> David Grunblatt Partner Immigration & Nationality International Private Client Services Newark t: f: David Grunblatt is co-head of the Immigration & Nationality Group in the Labor & Employment Law Department. David provides advice on all types of immigration law issues to corporations from a broad range of industries, including financial services, media and publishing, as well as luxury brand retailers. He counsels his clients on policies and programs to facilitate the hiring and transferring of foreign nationals and international personnel, using the full array of nonimmigrant and immigrant visa categories. David is an established authority on the I-9 program, other recordkeeping and compliance programs necessitated under immigration and nationality laws, and complex immigration issues resulting from mergers, acquisitions and other corporate changes. His stature in field of immigration law is reflected by his consistent "Band One" ranking in Chambers USA, in which clients praise him as "the dean of immigration" with "excellent judgment and perspective on how business is conducted." For 30 years David also has advised corporations, high-net-worth individuals and not-for-profit organizations on personal immigration issues, including family immigration, exclusion and removal (deportability), U.S. investment and tax-related matters. David draws on his broad knowledge and experience to develop, train and supervise his talented and capable team of lawyers and legal assistants. In recognition of his skills in this area, he received the Sam Williamson Award from the American Immigration Lawyers Association for his outstanding efforts in providing mentoring assistance to immigration lawyers. Prior to joining Proskauer, David was a partner and head of the corporate immigration practice at Wildes, Weinberg, Grunblatt & Wildes, P.C., where he practiced for more than 20 years. David has held numerous leadership positions in the immigration and nationality law bar. He lectures and writes extensively on the subject of immigration and nationality law for many notable U.S. seminars and publications, including the NJICLE Forum, the American Immigration Lawyers Association, the New York Law Journal, the New Jersey Law Journal and The Global Legal Post (UK) and PLI. David is also sought after by major publications for commentary on current immigration law issues. A member of Proskauer s Pro Bono Initiative Committee, David personally works on many pro bono matters in addition to supervising almost all of the firm's pro bono immigration work. He has been honored with the Empire State Counsel Silver Supporter Award for his extensive pro bono service.