Business Immigration: Employer Compliance, Employment Authorization Cards, PERM Certification, Visa Updates, & More

“Although the Presidential candidates will not be delving into all the volatile details of immigration in an election year,” writes labor and employment law firm Fisher & Phillips, “employers should tackle immigration issues to avoid monetary penalties and criminal sanctions.”

To help you do that, here’s a roundup of recent legal commentary on business immigration issues:

12 Steps To Immigration Compliance in 2012 (Fisher & Phillips LLP)

“Although employers are not required to complete I-9s for independent contractors, the USDOL and U.S. Department of Justice take the position that employers are obligated to do so if the contractors should be classified as employees. Similarly, if an employer uses H-1B contractors, USCIS will scrutinize the end-user to determine which employer truly exercises control over the contractor to determine which employer should be filing the H-1B work visa petition.” Read more»

As if I-9 Compliance Wasn’t Confusing Enough: How To Avoid Traps of New Federal Security Features (Nexsen Pruet, PLLC)

“Hiring managers know that in order to legally utilize immigrant workers, they must accurately complete an Employment Eligibility Verification Form I-9. But, there’s a redesigned federal document that is leading to confusion as businesses try to comply with the law.” Read more»

Immigration Alert: February 2012 (Epstein Becker & Green, P.C.)

“On January 5, 2012, the Massachusetts Supreme Judicial Court, the state’s highest court, held unconstitutional a state law that excluded certain immigrants from eligibility for subsidized health coverage under that state’s ‘Commonwealth Care’ program… At issue was a legislative appropriation that denied state subsidies for the purchase of health insurance to noncitizen immigrants residing lawfully in Massachusetts.” Read more»

H-2A Workers: IRS Advises on W-2/1099 Reporting and Mandates Backup Withholding When SSN is Missing (Constangy, Brooks & Smith, LLP)

“With 2011 W-2s due right about now, the IRS is committing manpower and enforcement on compliance relating to 2011 compensation that a grower paid to its foreign agricultural workers admitted into the US on H-2A visas. The IRS now mandates W-2 reporting of such compensation (and the grower must obtain the worker’s SSN or ITIN when reporting) and possible 28% backup withholding (where the worker fails to provide an SSN or ITIN).” Read more»

February Visa Bulletin, EB-2 For China And India Moves 12 Months And Other Immigration Law Updates (Duane Morris LLP)

“The employment-based second preference category for Indian and Chinese nationals is scheduled for another significant advancement on February 1, 2012. All applicants who have priority dates on or before January 1, 2010, may submit adjustment of status applications (Form I-485) as soon after February 1, 2012, as possible. Due to the rapid forward movement in recent months, retrogression later in the year is quite possible.” Read more»

PERM Labor Certification Process – Which One Are You? EB-2 vs. EB-3 – The Waiting Is The Hardest Part (NPZ Law Group, P.C.)

“If an employer has real business needs justifying the requirement of education and experience qualifications that exceed the SVP, the employer may still go ahead and file an EB-2 PERM application. The employer should be prepared to provide business necessity documents and/or evidence to justify its need once the DOL makes a request for such documentation.” Read more»

State Licenses Critical to H-1B Visas (Ronald Shapiro)

“Doctors, research scientists, engineers and other professionals seeking to work in the U.S. pursuant to the grant of a H-1B visa (a visa used to employ foreign workers in specialty occupations that require theoretical or technical expertise) must be mindful of the role that state licensing plays in this federal program.” Read more»

Immigration-Related Audits By The Government: What Employers Need To Know (NPZ Law Group, P.C.)

“There are three potential ‘hot spots’ for audits and investigations for the government related to the immigration and nationality laws. The first has to do with the documentation that the employer is required to maintain in connection with the H-1B nonimmigrant professional and specialty and occupation worker visa. The second area of potential audit concerns the employer’s obligations under the Immigration Reform and Control Act of 1986. The third, and one more recent, area of audit surrounds the new Labor Certification Application Program called ‘Permanent Electronic Review Management’.” Read more»

H-2A and H-2B Visas Open Up for 2012 (Ronald Shapiro)

“The U.S. Citizenship and Immigration Services (the “USCIS”) recently announced that citizens from 53 different countries will be eligible to participate in the H-2A and H-2B visa programs this year… In addition to the 53 countries currently on the list, the following five countries were designated for the first time this year: Haiti, Iceland, Montenegro, Spain and Switzerland.” Read more»

Employers Pay Substantial Fines For Immigration Document Abuse (Lane Powell PC – Immigration Law)

“In the current climate of high immigration worksite enforcement, most U.S. employers carefully check workers’ eligibility for employment, using the required I-9 form. But some employers are paying a price for checking their workers in a manner that does not comply with federal law. These employers fail to realize that the Federal government not only targets its workplace enforcement efforts against employers who fail to check work eligibility documents; the government also targets employers who discriminate against lawful workers by asking for specific documents, or by asking for too many documents.” Read more»

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