Posts Tagged ‘COBRA’

H-1B Cap Almost Reached and Other News

December 19, 2009

Happy Holidays from the Davis Brown Immigration Department!  Surviving 2009 is an accomplishment in itself.  We wish all of you a safe, happy and prosperous New Year!

Following is an update on the latest in immigration-related law and policy.

H-1B Cap Almost Reached

The soft economy this year resulted in H-1B (professional work visas) being available for much longer than they have been in the recent past. Usually these visas run out on April 1, the first day of the application period.  But last week the Immigration Service reported that only 1,000 remain and will likely be used up in the next few days.

This means that the only H-1B filings we can make until April 1 are for transfers (where the person has been counted toward the cap already) and cap-exempt positions (jobs at colleges or universities, doctors receiving a Conrad 30 waiver, and jobs at entities affiliated with higher education institutions, for the most part).  Those cases filed April 1 for new H-1Bs must be for jobs starting October 1, 2010.

Immigration Reform Bill Introduced in the House

The Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 was introduced by Rep. Gutierrez (D-IL) on December 15.  It is a huge bill and is the first in an expected series as Congress considers changing the immigration system.  More to come as we analyze this bill and its chances of success (why do they always introduce immigration legislation during the holidays?)

I-9 Enforcement – This Time They Mean It

After many fits and starts over its 20+ year history, the I-9 form is finally getting the attention that has been threatened for so long.  Immigration & Customs Enforcement (ICE) has not only announced, but is actually doing, wide-spread I-9 audits, resulting in fines. The stated goal of these audits is as a criminal prosecution tool as well as an administrative enforcement tool.

The audits are focused on particular industries on a rolling basis, adding new industries as others are completed. While the numbers are not huge (85,000 I-9s reviewed, 16% resulting in Notice of Intent to Fine and more than $2 million in fines from 654 audits), they are continuing and consistent for the first time in memory.

Now is a good time to self-audit I-9s and consider an outside “spot-audit” to assess potential liability and any other workforce concerns.  If your company receives an audit request, consider it with no less seriousness than an IRS audit or wage/hour or OSHA visit, and let us know if we can help.

ESTA Travel Registration – When “Delay” Means “Denial”

Travelers using the visa waiver program (people from certain countries are not required to obtain a visitor’s visa, but may instead enter for up to 90 days on a passport) must now register on-line under the ESTA (Electronic System for Travel Authorization) (go to

Recently, the government announced that persons who had applied for visas and been refused for lack of information under INA §222(g) should disclose this “delay” as a denial on ESTA.  Failure to do so could result in refusal at entry as a person making a misrepresentation.

The problem is that visa applicants do not always realize that the request for more information is actually a “denial”.  Therefore, this pronouncement is controversial and we hope it will be changed.  In the meantime, please be careful in filling out ESTA registration and let us know if you have questions.

ESTA Travel Registration – Watch Out for Scams!

In finding the website for the above item we found that many non-governmental sites are operating purporting to register people for ESTA.  Please make sure to enter through the Customs and Border Protection portal ( rather than these other sites, which may be scams to obtain your ID information or sell you something that is offered FREE by the federal government.

Inquiries for the Citizenship & Immigration Service

As many of you know, the Immigration Service as established a National Customer Service Center with an 800 # (800-375-5283) for various inquiries.  This number provided a lot of unreliable information – and long waits to talk to a person – when first established but has improved.  While we still caution that the 800# is not legal advice, it is an initial portal to making most case inquiries, even for attorneys.

An email inquiry box is also now available at the four service centers, but only if you have called the 800# first and waited 30 days in most instances.

Because Canadians cannot access the National Customer Service Center through the 800# number to ask about general immigration questions, Canadian customers may now inquire about general immigration information at in addition to obtaining immigration information at

The website,, was recently re-designed.  It is better in some ways and worse in others, but it is a good place to find general information.  We refer our clients to the site in limited instances, such as to find the nearest Civil Surgeon for an immigration medical exam.

Improved customer service is a fantastic goal – but it is not legal advice.

In Other News

Some other items that are not as recent, but still important:

Congress has extended the religious worker (non-minister) immigrant category, the EB5 “regional center” immigrant program to allow for indirect job creation for immigrant investors.  These programs expire every few years, causing consternation for all.  But at least we have another breather.  The e-Verify employment verification program was also extended.

The HPV vaccination is no longer required for women green card applicants.  This vaccine was controversial and expensive.

HIV has been removed from the list of communicable diseases resulting in a bar to immigration absent a waiver.

Lou Dobbs (a vocal opponent of immigration reform) resigned from CNN and is now running for Congress.  His platform includes supporting legalization for unauthorized immigrants.  You just never know . . .

For Employers – COBRA Extension

Our Health Law Department reports the following:

The House has passed a bill extending the federal COBRA subsidy.  The bill’s provisions extend the time frame to qualify for the subsidy by two months, through February 28, 2010.  The bill also extends the length of the subsidy from 9 months to 15 months.  The bill also contains notification requirements for employers.

We expect the bill will quickly be passed by the Senate prior to its recess for the holidays.  Once the bill has passed the Senate, we will provide you with a detailed summary of the bill’s provisions and its impact on employers.

Please contact Susan Freed at if you would like to be on her list or need additional information.


Obama Commits to Immigration Reform in 2009

April 10, 2009

Somewhat surprisingly, the Obama administration has stated that immigration reform will be on the plate this year – at least for debate. See

Given the election cycle, many believe that if reform does not happen this year, it would not happen until 2011. Stay tuned.

H-1B Cap NOT Reached

In another surprise, only about half of the “regular” H-1B visa allotment was filled in the initial filing period (April 1 – 7). Therefore, all applicants for H-1Bs who filed in this window will have their cases adjudicated (and granted if found eligible). Interestingly, almost the entire allotment of 20,000 H-1Bs for persons who earned U.S. master’s degree were received during this same period. This shows that the demand for H-1Bs is tied to high skill levels.

What does this mean? First, if you have a potential employee for whom you could not apply during the initial filing period (whether bachelor’s or master’s degree – or Ph.D. for that matter), you can still apply until the cap is reached. CIS will announce the last day of that they will take cases and will conduct a lottery to award H-1Bs received on that day.

Second, anyone who was in valid OPT status when the H-1B was filed will automatically be allowed to continue working through September 30 (unless the case is denied before then) even if the EAD expires before that date (“cap gap” work authorization).

Finally, it means that the H-1B program is working as it should. When the economy is down, employers are less likely to seek foreign talent to fill positions. Critics of the program maintain that H-1Bs are used to find “cheap labor” rather than needed skills. If this was true, employers would be more likely to seek H-1Bs in economic downturns so as to save on wages.

New I-9 and Employer Handbook

As noted last week, the new I-9 form went into effect April 3. CIS also has published a new Employer Handbook (form M-274)

The major change is that expired documents are no longer acceptable for I-9 purposes. This includes U.S. Passports or the new Passport Card.

The handbook clarifies many issues, such as when to re-verify an employee with an expiring document, and has been re-drafted to be more user-friendly.

However, CIS received numerous complaints about specific situations that are not covered in the form or handbook, but decided to proceed without amendment to address these items. Employers are again left with guesswork about how to correctly fill out this one page form.

Now is a good time to re-examine your I-9 policies to make sure they conform with the new rules and to review your I-9 procedures and training.

ICE Signals New Direction in Work Site Enforcement

Janet Napolitano, Secretary for the Department of Homeland Security, delayed a series of planned raids at the end of March to assess how and when the operations were being conducted. Sources say that this move signals a coming change in work site enforcement priorities that will focus on more on the employer and less on the worker.

This could mean more administrative audits or more management prosecutions – it is too early to tell. In the only major work site operation carried out so far under this Administration, several workers were arrested, but were later released and given work permits. This is a big change from the treatment of workers in Postville, Iowa, where most of the people released on humanitarian grounds following the raid of May 12, 2008, are still without work authorization and in ankle bracelets. Still, these actions are confusing.

Watch this space for further updates.

In Other News – for Employers

Employers interested in the new COBRA subsidy provisions can go to our website for a free FAQ that is updated as new information comes out. See:

As part of the economic stimulus bill, Congress extended the HIPAA privacy and security requirements to “business associates”. “Business associates” are individuals and entities that access health information in the course of providing services to a health care provider, health plan, or health care clearinghouse. Examples of clients who are business associates include information technology providers, attorneys, accountants, banks, collection agencies, third party administrators, and consultants. Previously, these business associates were only contractually obligated to comply with the HIPAA privacy regulations. Now they are required to comply not only with the privacy regulations but also the security regulations. Additionally, government enforcement efforts can now be directly targeted at the business associate.

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