Immigration Law Changes Will Benefit Agriculture Based Industries

The New York’s Farm Bureau reports that fruit and vegetable growers and dairy farmers have been suffering from a shortage of agricultural labor. “Vineyards and orchards had crops left on the vine or fruit left on the tree because of a shortage of workers. That adds up to millions of dollars that are lost in local revenue to the rural economies.”

Dairy farmers have warned that a lack of workers has hampered their ability to meet rising demand from the growing Greek-style yogurt industry in Western New York.

Under the proposed immigration law changes, many illegal alien workers would be able to get an agriculture card, also known as a “blue card,” which would make them eligible to work in agriculture as legal permanent residents if they have paid all taxes, not been convicted of any serious crime and paid a $400 fine. The provision is important to Western New York farmers because they would be able to continue to employ the workers they’ve already trained, and would help workers get a slightly expedited and less costly path to citizenship. The benefit will trickle down to agriculture based industries such as brewers, wineries and distillers. Another provision would set up a three-year guest-worker program with the option to renew for another three years.

Posted in Immigration Hot Topics | Tagged , | Leave a comment

Twitter can help you plan your road trip!

Road trips can be fun when you travel with friends and family, but there are always times during every road trip where you can find yourself thinking “I wish I were on a plane” One of the most frustrating things about cross-border road trips for me is the wait at the border. The lineups at the border can be quite unpredictable and depend on what events, shows or holidays are coming up that cause people to travel over the border.

While there is no way to by-pass the long wait without a Nexus pass, there is some information available to better prepare you for the wait ahead.

The Canadian Border officials have a Twitter account. The account was created to provide an hourly update on the border wait times. Each Canadian Border Service Agency has its own twitter account to allow users to follow the borders closest to them. A full list of the Canadian Border Service Agency Twitter accounts can be found at http://www.cbsa-asfc.gc.ca/new-neuf/twitter-eng.html.

The United States Customs Border Patrol also has a Twitter account (@CustomsBorder); however, it does not provide up to date border times for travelling back into the US. They do offer a mobile friendly website that provides up-to-date information on border wait times. This can be found at:  http://apps.cbp.gov/bwt/.

So, next time you take a road trip to Canada or Mexico, check out the CBSA twitter account and CBP mobile website to help plan your drive.

Posted in Immigration Hot Topics, Permanent Residency, Visas | Tagged , , , | Leave a comment

How Immigration Reforms Affect Business Owners

Business owners want to know how the 2013 immigration reforms will affect business. Let’s look at some of the issues and how they will trickle down to middle America and small business, especially high tech start-ups, restaurants and agribusinesses (wineries and vineyards) here in Western NY.

There will be increased border security and the Immigration authorities will employ an enhanced screening system to track all non-citizens who leave the country. There will be stronger prohibitions on racial profiling and excessive use of force in immigration enforcement.

There will be the launch of a legalization program for undocumented immigrants. Undocumented people will register, then pay back taxes and a fine to earn a probationary legal status that will allow them to live and work temporarily in the U.S. (People with a serious criminal history will be ineligible.) Once enforcement measures have been completed, those with probationary legal status must pass background checks, pay taxes, learn English and civics, demonstrate a history of work in the U.S., and have current employment to earn lawful permanent resident status (green card).

Young undocumented immigrants who were brought to the U.S. by their parents, and those undocumented immigrants working in the U.S. agriculture industry, will be eligible for green cards without fulfilling all of the above criteria. With many undocumented workers in New York, this will open the employee pool for employers, especially for unskilled workers such as those working in food service and agribusiness.

There will be improvement of the legal immigration system to attract the world’s best and brightest talent to the U.S. workforce. The USCIS will reduce the current, long backlogs for people who are legally eligible to immigrate to the U.S. in both the family and employment categories, especially those from China, India, Mexico and the Philippines.

The government will develop a program to grant permanent resident status (green card) to people who graduate from U.S. universities with a master’s or doctoral degree in a STEM discipline (Science, Technology, Engineering or Mathematics). With Rochester having such a strong presence in technology, this is likely to benefit new start-up ventures who can attract top talent from local universities. It may also encourage these talented graduates to initiate their own start-up endeavors here in Rochester.

There will be enhancements to the employment verification process. The current E-verify system has known drawbacks and many are not inclined to use it because it adds a “Big Brother” element that can be used in enforcement proceedings against the employer. The USCIS will improve the E-Verify system to be fast and reliable for employers, to prevent identity theft, and to reduce the ability of unauthorized workers to use false documents. There will be increased penalties against employers who knowingly hire undocumented immigrants. This will hopefully address the problems with E-verify and allow it to work as intended to simplify the employer verification process so employers can comply with immigration rules.

The new laws will allow employers to hire immigrants if employers can demonstrate they were unsuccessful in recruiting an American to fill an open position (without displacing American workers). This will include unskilled labor, not just technology and executive level labor. Immigration laws will admit more lower-skilled immigrants when the economy is creating jobs and fewer when it is not. In particular, the Immigration Service will create a program to meet the needs of America’s agriculture industry, including dairy, to find workers when Americans are not available to fill open positions. This will open the employee pool for employers, especially for unskilled works such as those working in food service and agribusiness. With the growing wine industry, brewery industry and yogurt industry here in Western New York, this should create a workforce for these key industries for the regional economy.

Immigration reform is always slow and controversial, but the 2013 reforms should benefit Western New York businesses.

Posted in Immigration Hot Topics | Tagged , | Leave a comment

Foreign inventors may qualify for an EB-5 Visa if they expand business operations to the US and create jobs

Inventors and foreign companies with patent technology may wish to manufacture or sell in the US. For some, this is a path to a visa, especially for persons from countries that typically have lengthy waits to get permission to live and work in the US (China, India, Mexico and the Philipines).  In order to build a corporate presence in the US, a company may be able to take advantage of the Fifth Preference (EB-5) employment creation visa category. This visa provides conditional residency to foreign nationals who invest $1,000,000 (or $500,000 in targeted employment and rural areas) in a new commercial enterprise that creates full-time employment for 10 United States citizens or authorized immigrant workers (such as H1B employees), provided that the visa holder engages in the day-to-day management of the business.

In order to successfully receive an EB-5 visa, the applicant should gather the following supporting documentation for the visa application:

The enterprise

The applicant must invest in a “new commercial enterprise,” (for example, most for-profit business entity structures will meet the standard, including limited liability companies, corporations,  limited partnerships, holding companies and their wholly-owned subsidiaries). To qualify as new, the entity should be formed after 1991. The applicant will need a copy of the entity’s Articles of Incorporation (or comparable business formation document) as well as minutes or other substantiation of authorization to do business in the US and that s/he is corporate officer and director; or in the case of a partnership, the partners’ management or policy-making activities consistent with rights, powers and duties normally granted limited partners under the ULP Act.

Investment documents

The investment can be in cash, equipment, inventory, other tangible property, cash equivalents, or an indebtedness secured by assets owned by the entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure any of the indebtedness. A loan to the commercial enterprise or any other debt arrangement between the entrepreneur and the new commercial enterprise does not constitute an investment.  The investment must be at-risk (subject to loss) depending on the success of the business endeavor.

The applicant must provide evidence of the investment, which may include bank statements, evidence of purchased assets, evidence of property transferred from abroad, stock certificates given for investment; or loan or mortgage agreements. To demonstrate the $1,000,000 investment, all capital is valued in U.S. dollars and at fair market value.

The applicant must establish that the investment comes from accounts under his name or from funds in joint accounts by the applicant and his/her spouse. The joint accounts cannot be with other family members (siblings, parents or children).

The applicant must provide evidence of the source of funds and that they are legitimate.

Lawful source of funds

To demonstrate that the funds are legitimate, applicant will be required to provide foreign business registration records; corporate, partnership and, personal tax returns filed for the preceeding five years; and evidence identifying other sources of capital. Where the source is sale of house or business, the applicant investor needs to provide copies of sales contracts, closing documents and/or or deeds. If the investment was from savings, the applicant will need to provide evidence of his level of income during the preceeding years (usually 5-10 years). The applicant will need to provide certified copies of any judgments or evidence of all pending governmental, civil or criminal actions, administrative actions, and any private civil actions involving monetary judgments within the past 15 years.

Job creation of 10 jobs and Targeted Employment Area (TEA)

The applicant will need to provide I-9s (if working in the US), tax records and substantiation that this is a full-time business endeavor (not a part-time hobby). He will also need to submit a comprehensive business plan demonstrating where the 10 employees will be hired, the nature of the work they will perform and giving approximate dates within the next two years.

If the employment will be in a TEA, the applicant must provide evidence of the statistical area (or MSA) and a letter from an appropriate state agency that the area has high unemployment.

Petitioner will be engaging in business on a day-to-day basis or through policy formation

Lastly, the applicant must provide documentation of his title (and evidence that s/he is a corporate officer and director (or partner) and a description of job duties. These duties should be consistent with those of similarly situated executives in similar businesses.

The success of EB-5 visa applications is strongly related to the strength of the application package. If you would like to discuss this or other employment -related visa options, Tracy Jong Law Firm would be pleased to explore your options and guide you through the process.

Posted in Employment visas, Visas | Tagged , , , , | Leave a comment

Retaining Form I-9

Employers are required to retain the page of the form on which the employer and the employee enter data. While some employers keep copies of the ID documents provided for verification of status, it is not a requirement to keep/store copies of these documents.

 It is important for employers to understand that Form I-9 must be kept on record for a period of at least 3 years, even if the employee only worked for a few weeks. If the employee stays with the company longer than 3 years, then the employer must keep the Form I-9 with their records for as long as the employee is employed with the company (even when longer than three years).

In some circumstances, the employer must make sure to have the Form I-9 updated in order to stay in compliance with USCIS regulations. These situations occur when the employee has an expiration date on their work authorization when they initially fill out the Form I-9. For example, an H1-B worker may have work authorization and must have Form I-9 on file with his employer; however, the H1-B visa is typically issued for an initial period of only 3 years. After the 3 years, the worker’s visa must be renewed in order for the work authorization to remain valid. At this point, once the expiration date has passed, the employer must request an updated evidence of work authorization permitting the worker to continue to lawfully work in the United States.

While every system is different one suggestion to keep track of ALL Form I-9 applications and their validity is to do an annual audits of the forms. During the review, those forms that have an expiration date on the work authorization in the upcoming year can be noted and the employee can be notified of when he needs to provide an updated proof of work authorization. This will also allow the employer to treat all employees equally and not single out non-citizens. Another way to track the specific dates of expiration is to keep track of them as deadlines in the HR calendar – that way the HR personnel will know when they will need to have an updated work authorization document, which will result in a more efficient renewal process.

Any and all changes to the documents must be documented and kept with the Form I-9.

If copies of documents presented by employees are made, those too should be kept with the Form I-9. (Employers may store the instructions and List of Acceptable Documents page as well.)

It is important to not only retain Form I-9 but to do regular (i.e. annual) self-audits of the Form I-9 of every employee to make sure that there is always a correctly completed form on file for each person. In the event that an error needs to be corrected, the employer and employee CROSS OUT (do not white-out or erase) the error, make the change on the form so that the change can be seen and initial the change with the date.  If it is not possible to cross out the information that needs to be changed, a separate Form I-9 must be completed and attached to the incorrect Form I-9 with a signed explanation by both the employer and employee. This new form must not be backdated and should reflect the date of the change.

If the employer fails to adequately review the company files and fails to request proof of an updated work authorization and note it in the files, the employer must immediately request and obtain a copy of the updated documents and make note on the file of the request (a signed statement by both parties and update to the file reflecting the extended work authorization date). If the USCIS audits the company during this period, the employer could face fines for failing to keep an updated record for the Form I-9.  Simply put, make sure that Form I-9 is updated for every employee who does not have an indefinite work authorization (i.e. Green Card holders, non-immigrant workers etc.).

Posted in Employment visas, Immigration Hot Topics, Visas | Tagged , , | Leave a comment

How to store your Form I-9

There is no specific requirement or guideline for how to store Form I-9; however, the USCIS has recommended that employers ensure adequate safeguards are put in place to protect the highly sensitive and personal information contained in the completed Forms I-9. Employers may use a paper system, an electronic system or a combination of paper and electronic systems to store Forms I-9.

Paper Copy

When storing the original paper Forms I-9 (if that is something the employer decides to do) they can be stored with the employees’ employment records. However, it is a better practice for employers to keep the Forms I-9 in a separate file from the general personnel records of the employee. In the case of an inspection or audit, this practice will facilitate a smoother, less intrusive way to comply with the inspection request. This way, if the USCIS requests to audit your Form I-9 files, it will only need to access these forms and will not require access to personal or sensitive employee information.

It is important to note that any information requested and provided on the Form I-9 is required to be made available to the USCIS, and any information found during the audits can be used by the USCIS to review an employee’s legal status in the U.S.  Because of this, it is a best practice to keep the Forms I-9 in a separate file/folder than the employees’ personal information not related to the completion of the form.

Electronic Copy

When storing Forms I-9 electronically, the electronic system must:

  1. Include devices to ensure the integrity, accuracy and reliability of the e-storage system;
  2. Include a method of detecting and preventing the unauthorized or accidental alteration or deterioration of an electronically stored Form I-9, including the electronic signature, if used;
  3. Include a device to maintain an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms;
  4. Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used;
  5. Include an index of all data so that any record can be accessed immediately; and
  6. Produce a high degree of readability when displayed on the screen or reproduced on paper.

Depending on your company’s main method of operation, the electronic system could be the best or worst way to store your documents. Many companies keep copies of these records both electronically and in paper format to ensure that they are keeping up-to-date records and complying with USCIS regulations in one way or another. No matter how you choose to store Forms I-9, you must be able to present them to government officials for inspection within three days of the date on which the forms were requested.

If you choose to maintain a combination of paper and electronic systems to store Forms I-9, you must make sure that the system storing the electronic forms meets the system requirements laid out above and that the requirements for storing paper forms are also met.

Posted in Employment visas, Immigration Hot Topics, Visas | Tagged , , , | Leave a comment

All companies must comply with I-9 requirements

You may not think that you need to worry about immigration paperwork for your company. After all, you may be a small local company, you hire family members or people you know for a fact to be born and raised in the U.S., so why would the USCIS care about your company? Actually, the USCIS requests that every company complete Form I-9 (even though they are not required to be filed with the USCIS) for every employee.  Strictly speaking, this includes your own family members if they are employees. Even an owner of a corporate entity that employs the owner should have Form I-9 on file in the business personnel records.

Form I-9‘s purpose is to verify the worker’s eligibility to work in the United States by completing the form and providing the employer with facially valid documentation that verifies the worker’s identity and legal status to work in the U.S.

The most common documents used to validate identity and confirm legal status to work in the U.S. is a valid U.S. issued passport or a valid, unexpired state-issued driver’s license and a valid social security card allowing for work in the U.S.  A U.S. passport alone is sufficient to prove both citizenship and identification.

Whatever documents that employees present to the employer, employers must make sure to make a good faith effort to review the document to confirm that it is a facially valid form of identification. Photocopies of documents, or documents that look like they have been compromised should raise a red flag. In the event an ID is deemed questionable, the employer should ask for another form of documentation in its place.

Form I-9 became a legal requirement by the Immigration Reform and Control Act of 1986 by the INS (now the USCIS). While many employers complete the form and keep it on file, the reasons and importance of the form are usually ignored. Employers may not find it necessary to adequately review the documents on a regular basis since it does not need to be filed. As a result, changes in some employees’ work authorization may not be caught, leaving the employer exposed to potential fines and penalties imposed by the USCIS if they are audited.

Like every rule, there are exceptions. Employers need not fill out and retain Form I-9 for the following workers:

  • Individuals hired on or before Nov. 6, 1986, who are continuing in their employment and have a reasonable expectation of employment at all times. Also excepted are individuals hired for employment in the Commonwealth of the Northern Mariana Islands (CNMI) on or before Nov. 27, 2009.
  • Individuals employed for casual domestic work in a private home on a sporadic, irregular or intermittent basis. This would mean if you hired a person to clean your home once without an expectation of repeat/regular work.
  • Independent contractors or individuals providing labor to you who are employed by a contractor providing contract services (for example, employee leasing or temporary agencies).
  • Individuals not physically working in the United States

Since Forms I-9 are never filed with the USCIS, it is important to understand the effects of not completing and retaining the forms for every employee. There are different levels of fines and civil penalties which are determined by taking into account the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. Monetary penalties for knowingly hiring and continuing to employ the employee violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties, at the higher end. Penalties for substantive violations, including failing to produce a Form I-9, range from $110 to $1,100 per violation.  A detailed list of the penalties can be found here.

A copy of Form I-9 along with a list of acceptable documents can be found at: http://www.uscis.gov/files/form/i-9.pdf . For information on how to store the Form I-9 and how long you must retain the forms with your records, please see our other articles: “How to store your Form I-9” and “Retaining Form I-9”.

Posted in Employment visas, Immigration Hot Topics, Visas | Tagged , , , | Leave a comment

Immigration and Will Drafting

Immigration is a very broad topic that affects all aspects of one’s life. One area that many don’t think about is their estate planning. While it may be common knowledge that when a non-resident alien or (even a resident alien intending on eventually travelling back to their home country) prepares a will in the U.S. they are doing so to make sure their affairs are in order in the U.S. while making sure they have documentation back in their home country (or in some instances cultural norm takes over by default).

An issue that may come up more often than people may think – especially in cities close to the Canadian Border or with a lot of foreign students/workers – is when a U.S. resident/citizen names a family member as executor of their will who is not a U.S. resident/citizen. This happens many times when clients use online legal services to prepare their wills and other estate planning documents, without the help of a licensed attorney.

Under New York Surrogates Court Procedure Article 7, § 707.  Eligibility to receive letters:

“Letters may issue to a natural person or to a person authorized by law to be a fiduciary except as follows:

  1. Persons ineligible … a  non-domiciliary  alien except one who is a foreign guardian as provided in subdivision four  of  section  one  thousand  seven  hundred sixteen  of  this  chapter,  or  one  who  shall  serve with one or more  co-fiduciaries, at least one of whom is  resident  in  this  state.  Any  appointment  of a non-domiciliary alien fiduciary or a New York resident  fiduciary hereunder shall be made by the court in its discretion

What this section states is that an executor of a New York will must be a resident or citizen of the US. One exception to this rule is when the will or court appoints at least one  co-executor (co-fiduciary) who is a New York Resident (and a permanent resident/US citizen).

In cases where the named executor is a non-resident alien and there is no co-fiduciary listed, the court has the authority to appoint a co-fiduciary or authorize the appointment of the non-resident alien to be the executor.

This is just one example of how the immigration status of a person can affect various aspects of his/her life. It is important to consult an attorney when dealing with legal matters that deal with your person or property to make sure all applicable issues can be addressed.

Posted in Immigration Hot Topics | Tagged , , , | Leave a comment

Bringing your alcohol stock over the border when you move

You are moving to the US and you are certain you have thought of everything. You have your moving truck, furniture, clothes, and all your travel documents. Many think about all the essentials and even understand the required claim form (Customs Form 6059B “Customs Declaration” for goods traveling with you and Customs Form 3299 “Declaration for Free Entry of Unaccompanied Articles” for goods being brought over by friends, family, mail or delivery company) necessary to bring in your personal belongings when you legally move to the US.

But there are a lot of things that many don’t consider. Recently, I was asked about what one would do when bringing their alcohol collection (yes, collection) to the US. It isn’t something to which many of us give much thought. But when you really think about it, you realize what a practical question it is. After all, we all see the limitations on the amount of alcohol we can bring in when we travel outside the US and visit the Duty Free Shop (if you haven’t been outside the US, take a trip over the border to Niagara Falls, if nothing other than to experience the Duty Free Shop – where everything is cheaper and – you guessed it – TAX FREE!!).

US Residents travelling back to the US after a trip longer than 48 hours are permitted to bring a 1-liter bottle of alcohol duty free for each person 21 years or older. The US Customs and Border Protection enforces this law on behalf of the Bureau of Alcohol, Tobacco and Firearms. They also decide whether or not amounts of  alcohol over the permitted limit is being brought into the US for commercial purposes. And so comes into play how to transfer your treasured liquor stock to the U.S.

Luckily, there is an answer to this question. While each state has its own specific rules for how much alcohol can be brought to the US for personal use without a license, permit, or payment of taxes on the alcohol, the federal government does not limit the amount of alcohol you bring in.

The best thing to do to make sure your alcohol can travel with you to your new home in the US and not incur a fine or tax is to check with the ABC law of the state you are ENTERING (not your final destination) to determine the permitted amount.

Currently, New York State Department of Taxation and Finance allows a person to import up to 360 liters of liquor in a one year period without applying tax on the alcohol. It is important to note that if the amount of alcohol being imported is more than 90 liters at a time, you must complete Form MT-39 no more than 30 days before the date of travel.

So remember, if you are planning to move to the US, you need to contact the State ABC and Tax Department of the state you are entering the US. Yet another aspect of immigration law that ties into everyday life!

Posted in Immigration Hot Topics | Tagged , , , , | Leave a comment

Are you hiring undocumented workers?

Regardless of the industry you are in, making sure your business is employing people who are authorized to work in the US is a big concern and has become a hot topic in the recent months. The New York Times and various other news outlets have identified the restaurant and bar industry as one of the most common places to find undocumented workers.

While the Form I-9 was implemented to assist employers in determining whether or not their employees had valid work authorization, there is always the chance that the document or information provided by the worker (and even adequately checked by the employer) may not be valid or authentic. In these cases, the employer is still held liable for the employment of an unauthorized worker.

To help alleviate some of the stresses involved with hiring process, especially in industries where undocumented workers are most commonly found, E-verify was introduced.

History:

In 1997, ICE (now the USCIS, United States Citizenship and Immigration Services) began testing a program known as the Basic Pilot Program to assist employers in identifying issues with the work authorization of their potential employees. Presently, this system is called the E-verify system and despite the controversy surrounding its use, it has grown in use and popularity over the past few years.

What is it:

E-verify is a system that takes information from the completed Form I-9 and compares it to data from the Department of Homeland Security (DHS) database and the Social Security Administration (SSA) records.  The information is used to confirm the eligibility of an employee for employment in the United States.

NOTE: The system is not fool proof – which is why it is so controversial

While not all states require their employers to enroll in the program there is currently a new proposal circulating that will make E-Verify a mandatory program for all employers in every state in the U.S.

Where is it used:

Currently, there are 30 states, including New York, that do not require E-Verify enrollment for any employer. Out of these 30, Rhode Island, Illinois and California are even leaning towards discouraging the use of the system.

An exception applies to employers who hire foreign students enrolled in Science, Technology, Engineering and Math who are applying for their  Optional Practical Training. These employers MUST be enrolled in the E-verify program.

It is important to note that over the next few months, the participating states and E-Verify requirements may change drastically, especially for those states who do not require E-Verify AT ALL. It is important to stay up to date on this information to ensure that you are staying compliant.

This table provides a list of states that require E-verify and details which employers must be enrolled in the program.

Posted in Employment visas, Immigration Hot Topics | Tagged , , | Leave a comment