Wolfsdorf Immigration Law Group Newsletter Mid-January 2010

1. WILG U.S. Immigration Seminar for Physicians - 1/23/10 in NYC - Registration Deadline Extended

Avi Friedman, Rita Sostrin and Naveen Rahman Bhora will host a WOLFSDORF IMMIGRATION LAW GROUP Immigration Seminar for Physicians in New York City on January 23, 2010. The seminar will be held at Roosevelt Hospital, Conference Room C, 1000 10th Avenue from 11:00 a.m. to 1:00 p.m. Topics covered will include J-1 Waivers, Visa Options for Physicians and Scientists, and Consular Processing of Nonimmigrant Visas. Participants will be able to engage in a free case strategy consultation following the seminar. If you would like to attend, please RSVP to Art Rivadeneyra at art@wolfsdorf.com by January 21, 2010. See http://www.wolfsdorf.com/images/Seminar%20E-mail12%2009.pdf for more information regarding the seminar.

2. DHS Grants TPS to Haitians Following Catastrophic Earthquake

Following the catastrophic earthquake in Haiti last week, the Obama administration announced that it is granting temporary protected status (TPS) to Haitians who were in the U.S. as of January 12, 2010. The designation will allow eligible Haitian nationals in the U.S. to continue living and working in the country for the next 18 months. Secretary of Homeland Security Janet Napolitano noted that "[t]hose who attempt to travel to the United States after January 12, 2010, will not be eligible for TPS and will be repatriated."

In the AILA Press Release issued January 15, 2010, “AILA Applauds the Grant of TPS to Haitian Nationals”, Bernie Wolfsdorf noted “[t]he tragic situation in Haiti justifies such a designation. The worst earthquake in 200 years has left thousands, and perhaps millions, homeless. Infrastructures have quite literally crumbled. There is simply no way that Haiti could absorb the return of its nationals under these conditions. The Administration has expressed its desire to apply our immigration laws in a fair and compassionate manner. Here is a situation that cries out for that fairness and compassion.”

In a field guidance memo issued on January 15, Secretary Napolitano said that U.S. Citizenship and Immigration Services "will implement procedures to adjudicate favorably, where possible, applications for change or extension of nonimmigrant status following the expiration of an applicant's period of admission; grant an additional period of parole or advance parole in appropriate cases; and authorize 'F' nonimmigrant students' requests for off-campus employment work authorization." She said USCIS will also "expedite the processing of advance parole applications and relative petitions for minor children from affected areas," and will "grant employment authorization where appropriate."

The field guidance memo, which outlines actions a USCIS officer may take when an applicant is a Haitian national or a habitual resident of Haiti, is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/haiti-field-guidance.pdf. The announcement, along with information about USCIS's Haiti relief effort, is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=9cf75869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=9cf75869c9326210VgnVCM100000082ca60aRCRD. Details on TPS application and eligibility requirements for Haitians are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e54e60f64f336210VgnVCM100000082ca60aRCRD&vgnextchannel=e54e60f64f336210VgnVCM100000082ca60aRCRD. Department of State information about queries related to U.S. citizens in Haiti and related issues is available at http://travel.state.gov/travel/cis_pa_tw/pa/pa_haiti_info_number.html

3. USCIS Announces Restructuring of Fraud Detection, Customer Service, Domestic Operations

U.S. Citizenship and Immigration Services announced on January 11, 2010, that it has realigned its organizational structure "to achieve greater efficiency and to more ably accomplish our mission." The realignment reflects the prioritization of certain critical agency responsibilities, USCIS said. The three most significant changes are:

• The creation of a Fraud Detection and National Security Directorate.
• The creation of a new Customer Service Directorate.
• The division of the existing Domestic Operations Directorate into two separate directorates: Service Center Operations and Field Operations.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=687e62cb6ee16210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A USCIS organizational chart is available at http://www.uscis.gov/USCIS/News/Images/USCISOrgChart.JPG.

4. USCIS Issues Controversial Memo on Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

Donald Neufeld, Associate Director for U.S. Citizenship and Immigration Services (USCIS) Operations, released a memorandum on January 8, 2010, that provides guidance concerning the requirement that an H-1B petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

The memo states that a lack of guidance clearly defining what constitutes a valid employer-employee relationship has "raised problems," particularly with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Mr. Neufeld notes that the placement of a beneficiary/employee at a worksite that is not operated by the petitioner/employer (third-party placement), common in some industries, "generally makes it more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist.

Among other things, petitioner control over the beneficiary must be established when the beneficiary is placed into another employer's business and is expected to become a part of that business's regular operations, the memo notes. "The requisite control may not exist in certain instances when the petitioner's business is to provide its employees to fill vacancies in businesses that contract with the petitioner for personnel needs. Such placements are likely to require close review in order to determine if the required relationship exists," the memo warns.

Further, the memo notes, USCIS must ensure that the employer is in compliance with Department of Labor regulations requiring that a petitioner file a labor condition application (LCA) specific to each location where the beneficiary will be working.

The memo includes a discussion of the "right to control" when, where, and how the beneficiary performs the job, which the memo distinguishes from "actual control." The memo states that the employer-employee relationship hinges on the right to control the beneficiary, and outlines 11 factors USCIS will consider to make such determinations. The memo also provides examples of valid and invalid employer-employee relationships; exceptions; documentation to establish the employer-employee relationship; and requests for evidence.

The memo, which has stirred controversy (see, e.g., http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html and http://www.nationofimmigrators.com/), is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

5. SSA Fails To Verify 19 Percent of New Hires

In a recent 18-month period, the Social Security Administration (SSA) failed to verify the Social Security Numbers of 19 percent, or 1,767 of 9,311 new SSA employees, as required. In other cases examined by the SSA's Office of the Inspector General, the SSA improperly screened E-Verified volunteers who should not have been screened under federal guidelines, and inappropriately screened some candidates in advance of hire.

SSA agreed with the Inspector General's recommendations, including verifying the 1,767 workers and issuing guidance to remind staff to: (1) verify all new hires, (2) conduct verification queries within three business days after a new employee has reported for duty and both sections of the I-9 employment eligibility verification form have been completed, and (3) prohibit the verification of existing SSA employees, job candidates, and volunteers.

The Inspector General's report is available at http://www.ssa.gov/oig/ADOBEPDF/A-03-09-29154.pdf.

6. IRS New Guidance on “HEART ACT” – Exit Tax for U.S. Expatriates

On November 9, 2009, the IRS issued new guidance regarding their enforcement of the Heroes Earnings Assistance and Relief Tax Act (the “HEART Act”). ( (http://www.irs.gov/irb/2009-45_IRB/ar10.html) Enacted in June 2008, the HEART Act imposes a “mark-to-market tax” on certain high net worth, or high earning lawful permanent residents who relinquish their green card (“covered expatriates”). Such persons become subject to an exit tax (“mark-to-market tax”) if, at the time of expatriation, they have had their green card for any portion of eight, of the previous 15 tax years and they have a:

(i) Net worth of more than $2 million;
(ii) Average net annual U.S. tax liability of more than $145,000 (adjusted annually for inflation); or
(iii) Failed to certify that they have satisfied all U.S. federal tax obligations for the five years preceding expatriation.

This exit tax is applied to the net unrealized gain on the expatriate’s worldwide assets as if the property were sold for its fair market value on the day before the date of expatriation. Any net gain on this deemed sale in excess of $626,000 (2009 figure) is taxable.

IRS CIRCULAR 230 NOTICE

In compliance with IRS requirements, we inform you that any U.S. tax advice contained in this communication is not intended or written to be used, and cannot be used, for the purpose of avoiding tax penalties or in connection with marketing or promotional materials.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

FIRM NEWS

Bernie Wolfsdorf will speak at AILA’s MidYear Conference in Mexico on the Impact of Global Business on Business Immigration Practice on January 29, 2010. He will also be speaking at the AILA Rome chapter Spring conference in Paris on EB-5 million dollar investors on April 22, 2010 and on April 23, 2010 he will speak on Comprehensive Immigration Reform.

Avi Friedman will be the discussion leader for the AILA Southern California Meeting on Consular Processing Issues on Wednesday, February 17, 2010.

Cliff Rosenthal will be in South Africa for in-person U.S. immigration consultations until January 22, 2010. Please email him at crosenthal@wolfsdorf.com or call (310) 570-4088 to set up an appointment.

****

The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310) 570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

****

Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

To be removed from future listings please type the word ”unsubscribe” in the subject line and press send. Thank you.