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Sunday, December 21, 2008

Immigration Law Update

Immigration Law Update: Lots of Changes Going On

Reprint - Opelika & Auburn News,


New Form I-9 in Interim Final RuleEffective Feb. 2, 2009, the federal Department of Homeland Security (DHS) has once again revised Form I-9 requirements and dictated the use of a revised form. Every employer is mandated by law to have newly hired employees complete a Form I-9 to verify employment eligibility. Among the changes to Form I-9:
Forms I-688, I-688A, and I-688B have been eliminated from the list of documents that can verify identity and employment authorization;
The employee attestation section is updated so that just above the employee’s signature appears the statement: “I am aware that federal law provides for imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form.” and
Added the category of “non-citizen national” to the classification list.

New H-2B Visa RegulationsOn Dec. 19, 2008, the Department of Homeland Security published new regulations that revise the H-2B visa program. The H-2B program is a temporary work visa program for foreign workers in nonfarm jobs. Here are the changes:
Non-immigrant workers in occupations other than agriculture, logging, or registered nursing can perform labor or services in the United States on a temporary or seasonal basis;
Employers must now attest that they have fully complied with all H-2B program requirements;
Employers are prohibited from imposing certain fees on prospective H-2B workers as a condition of employment; and
Under the Department of Labor regulations, which also revised the H-2B labor certification process, employers must apply to DOL for H-2B labor certification before they can petition DHS for the admission of H-2B workers to the U.S.

Updated H-2A Visa ProgramEffective Jan. 17, 2009, Department of Homeland Security has revised regulations that govern the H-2A visa program. The H-2A visa program allows foreign workers to do farm work in the U.S. The H-2A hiring process is streamlined for employers to encourage greater use of the program as follows:
Permits non-immigrant agricultural workers to provide labor or services in the United States on a temporary or seasonal basis;
Permit H-2A workers to more freely change employers if the new employers participate in E-Verify program;
Prohibit employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment; and
The Department of Labor also substantially revises its companion regulations, effective Jan. 17, 2009, that govern the H-2A labor certification process so that employers must apply to DOL for H-2A labor certification before they can petition DHS for the admission of H-2A workers to the United States.

E-Verify Mandated for Federal Contractors/Subcontractors
Beginning June 30, 2009, federal contractors and subcontractors will be required to use the federal E-Verify system to verify the employment eligibility of employees. The final rule was published November 14, 2008, amending the Federal Acquisition Regulation (FAR) and implementing President Bush's Executive Order 12989 which he signed June 6, 2008. (see O&A News Archives)
Practical Advice: Review of the new regulations and forms at http://www.dhs.gov/ and http://www.dol.gov/ is your critical first step. Next, proper I-9 Form completion, adoption of a new immigration compliance policy in your employee handbook, supervisor training, auditing 1-9 recordkeeping and E-Verify training are critical to a smooth transaction. Happy New Year from the outgoing Bush Administration!
 
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com