IMMIGRATION

EMPLOYERS FORCED TO COMPLY WITH NEW IMMIGRATION RULES

	Gail S. Seeram

By GAIL S. SEERAM

In a new effort to penalize unauthorized employment by illegal immigrants, the Department of Homeland Security (DHS) has announced tougher rules for employers to verify employee�s Social Security numbers. The final Immigration and Custom Enforcement (ICE) �No Match� regulations reiterate that employers remain accountable for the workers they hire and clarifying the steps employers should take to resolve mismatches identified in letters issued by Social Security Administration (SSA). The new rules provide guidance that will help employers comply with legal hiring requirements by outlining specifics steps they should take under immigration law when they are notified that employee�s names or corresponding Social Security numbers as provided on Form W-2 do not match SSA records.

There are many reasons for a mismatch between employer and SSA records, including transcription errors and name changes due to marriage that are not reported to SSA. SSA is not changing its procedures for issuing employer no-match letters, and SSA guidance on how to correct Social Security records is unchanged. However, no-match letters issued by SSA for tax year 2006 will be accompanied by a letter from ICE informing employers on how to respond to the employer no-match letter in a manner consistent with obligations under U.S. immigration laws.

The DHA regulations and the ICE letter describe with specificity what steps employers should take upon receipt of a no-match letter: 1) verifying within 30 days that the mismatch was not the result of a record-keeping error on the employer�s part; 2) requesting that the employee confirm the accuracy of employment records; 3) asking the employee to resolve the issue with SSA; 4) if these steps lead to resolution of the problem, follow instructions on the no-match letter itself to correct information with SSA, and retain a record of the verification with SSA; and 5) where the information could not be corrected, complete a new I-9 form without using the questionable social security number and instead using documentation presented by the employee that conforms with the I-9 document identity requirements and includes a photograph and other biographical data.

If the employer cannot verify the employee�s completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien.

It is expected that the new rules will be backed up by stepped-up raids on workplaces across the country that employ illegal immigrants.

Gail S. Seeram, an immigration attorney, handles cases involving family petitions, business/investors visas, citizenship, deportation, asylum, work authorization, and extension of status. Call her office toll free at 1-877-GAIL-LAW (1-877-424-5529), send an email at [email protected] or visit her Web site at www.go2lawyer.com.

	Dilip Patel

CHANGE OF ADDRESS IN THE IMMIGRATION CONTEXT
By DILIP PATEL, ATTORNEY-AT-LAW

In this article, I would like to discuss the immigration aspects of a change of address. It will come as no surprise that if you have an immigration application pending, you need to notify the Immigration Service if you move. However, people often forget that there is an obligation to file a change of address notification even if you do not have any pending applications and in some situations, even if you are a U.S. citizen. In this article, we will look at the situations where there is an obligation to inform the U.S. Citizenship and Immigration Service (�USCIS�) of an address change, and also how to do it.

U.S citizens. In general, there is no requirement for U.S. citizens to update their address with the Immigration Service. The main exception is where the U.S. citizen (or even a permanent resident) has filed an Affidavit of Support on Form I-864. If at any time in the past you completed an Affidavit of Support on Form I-864 to sponsor an immigrant, you are required to report your change of address within 30 days of the change if the sponsorship agreement is still in force.

The sponsorship agreement remains in force until the sponsored immigrant:

Becomes a U.S. citizen;

Can be credited with 40 quarters of work;

Departs the United States permanently and either formally abandons lawful permanent resident status (by filing FormI-407) or is formally held in a removal proceeding to have abandoned that status;

In a removal proceeding, loses the lawful permanent resident status that the sponsored immigrant obtained based on your Form I-864;v or Dies.

Note: Divorce does not terminate the sponsorship agreement. Also note that there is no such obligation with respect to the Affidavit of Support on Form I-134.

The change of address has to be reported on Form I-865 available on the USCIS website at www.uscis.gov. It is important to keep a copy of the form and use certified mail with return receipt so that you have proof of mailing and receipt. The penalties for failing to comply with this requirement can be as high as $5,000.

If you are a U.S. citizen (or permanent resident) and you have a case pending with USCIS. Even though it is not required by law, if you have filed any other application or petition with USCIS and it is still pending a decision, you need to update your address so you can get any notices or decisions on your application. I have been retained by several new clients recently to help them in situations where family based petitions filed by them a long time ago were denied because they did not respond to a notice sent to an old address. Re-filing a case would mean years of additional delay in many of the family-based preference petition categories. In such situations, a Motion to Reopen or Reconsider is perhaps the best hope for retaining the earlier priority date. For a pending case, you should write to the office, which is currently processing the application, and quote the full file number and basic details about the application along with details of the old and new addresses. In addition, you also should call the USCIS Customer Service section at 1-800-375-5283, and request them to update your address in the system. Unfortunately, it may take 30 minutes or longer to get to speak to a customer service representative.

The good news is that USCIS has recently enabled online address change procedures (discussed below), which will also update pending applications.

All others. The law requires nearly all non-U.S. citizens to report a change of address within 10 days of moving by completing a Form AR-11. The only persons exempt from this requirement are nonimmigrants currently in A or G status (foreign government officials and international organization aliens) and certain nonimmigrants who do not possess a visa and whose current stay in the U.S. has not exceeded or will not exceed 29 days. The USCIS has, in general, not strictly enforced the 10-day requirement. So, if you are not sure whether the USCIS has your correct current address, go ahead and update it now. As mentioned above, the good news is that you can now process your change of address notification online. The link is: https://egov.immigration.gov/crisgwi/go?action=coa.Terms and can be navigated from the USCIS website www.uscis.gov. The best thing about changing your address online is that you can also update your address on any pending applications at the same time, and hopefully avoid the long call to USCIS Customer Service.

Approved Petitions Pending at the NVC. If your petition was approved and is at the National Visa Center for further processing or waiting for a visa number, you should inform them of any address changes. You should write to the NVC and include your case number or your USCIS receipt number so that they can locate the file. You can mail your letter to: The National Visa Center, 32 Rochester Avenue, Portsmouth NH 03801-2909; or fax it to 603-334-0791.

Summary. It is important to know about address change requirements � not only to comply with legal requirements � but also to ensure that any notices issued on pending cases reach you and avoid the risk of denial for failing to respond.

Dilip Patel is a Board Certified Immigration Attorney. He is the founder of the Dilip Patel, P.A. law firm (www.dplawfirm.com) and has practiced business and immigration law in the Tampa Bay area since 1990. Patel can be reached at (727) 712 0066 or by email at [email protected]

	Nikhil Joshi

LABOR LAW

IMPLICATIONS OF MERGERS AND ACQUISITIONS � PART III
By NIKHIL N. JOSHI, J.D., M.B.A.

This is the last of a three-part series of articles on the labor law-related challenges that entrepreneurs can face when they grow their businesses in part due to acquisitions of other properties that present an opportunity to enter a new market, to obtain greater economies of scale or to gain other value-added benefits.

As stated in prior articles, with the growth of mergers and acquisitions of such properties, it is incumbent upon those individuals considering acquisition to conduct a thorough due diligence, beyond mere financial review, of the properties under evaluation. We have already discussed the impact of the general employment laws and the labor (union-related) laws. Today, we will consider the three remaining areas, including the �employee benefits laws,� the immigration laws and the laws governing mass layoffs.

EMPLOYEE BENEFITS LAWS

As part of its due diligence, the purchaser must seriously evaluate any retirement and/or benefit plans put into effect by the seller. The laws governing employee retirement and welfare benefits are extremely complex. Their application to the benefits implemented at the seller�s workplace, and thus any legal obligations that may arise, must be examined by experienced labor counsel, auditors and tax counsel to ensure compliance.

This examination is even more critical in the event the seller�s benefit plans are part of a multi-employer pension and benefits plan administered by a union. In the latter situation, the seller has a fiduciary responsibility to ensure the pension plan is not under-funded. If the plan is under-funded, the seller and, in some cases, the buyer may be assessed liability and steep financial penalties for the failure to adequately fund the plan under the federal labor and benefits laws.

IMMIGRATION LAWS

Under the Immigration and Reform Control Act of 1996, the purchaser is responsible for ensuring that all immigration-related documentation applicable to the seller�s employees complies with the law. To wit, as the successor employer, the purchaser must review the I-9 Forms for all employees who will continue working for the purchaser to ensure that they remain eligible to work in the United States. It is recommended that the employees be asked to freshly complete I-9 forms when the new owners take over.

Moreover, certain positions in transient businesses such as hotel or resort operations may be staffed by workers of foreign origin who hold special work visas. These visas may be particular to the employer/business and may limit the worker to the specific position held. Immigration compliance issues may arise if there are any changes to the position or any changes to the employing entity. As a result, if the purchaser would like to continue the relationship with a worker on a visa in compliance with the immigration laws, it may have to evaluate the options available to amend the employment-based visa petition.

LAYOFFS

In some cases, if the purchaser is not acquiring the rights to retain the workforce of the seller, which will result in the termination of the seller�s employees, then the seller may have to comply with obligations under the federal Worker Adjustment and Retraining Notification Act (WARN) and state and/or local laws dealing with mass layoffs and closings. Employers who are covered under these laws have obligations to provide advance notice to employees who will be affected by the mass layoff or closing and, in some cases, to the municipality and state where the business resides.

Failure to do so may result in penalties being assessed against the employer in addition to the monetary remedies available to the employees who were not provided such notice. To determine whether your business is subject to these laws, please consult with your labor counsel as the threshold for coverage and compliance varies depending on the circumstances of the closure or layoff.

The information presented in this article is general in nature. Nothing in this article is intended to provide specific legal advice. Please contact your labor counsel or other counsel if you have any particular issues that require attention.

Nikhil N. Joshi, a labor counsel with concentration in Human Resources Management at Kunkel Miller & Hament, P.A. in Sarasota, can be reached at 800-828-7133 or e-mail [email protected]