IMMIGRATION ESSENTIALS 2008:Strategic Options, Critical

Compliance Presentation to Mass Biotech Council

October 8, 2008

Susan Cohen and Jeff GoldmanMintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C.

Martha BradfordSr. HR Manager, EPIX Pharmaceuticals

Agenda

• 1. Strategic options for hiring foreign national workers when there are no H-1B visa numbers available

• 2. E-Verify System: pros and cons

• 3. US Immigration Compliance: essentials and best practices

H-1B

• Most common way for US Companies to hire foreign talent for professional jobs

• Minimum of Bachelors Degree or equivalent in a discipline related to the work

• Employer must pay prevailing wage• Part-time allowed• Dual Intent allowed• If terminated, employer must provide return

transportation• Initial three year period• H-1B portability• Premium Processing

H-1B Cap

• The law provides for no more than 65,000 H-1Bs each fiscal year, plus 20,000 reserved for those with US Masters Degree or higher

• Singapore and Chile carve-out of 6800 visas leaves even fewer H-1Bs

• April 1 is first day to file, requesting an October 1 start date

H1-B cap exemptions

• 1. Those who already have received H-1B status in the past six years and who have not left the US for more than one year

• 2. Institutions of higher education• 3. Nonprofit organizations “affiliated” with institutions

of higher education• 4. Government research organizations• 5. Nonprofit research organizations• 6. J-1 nonimmigrants who received “Conrad Waiver”

Common Alternatives to H-1B

• L-1 multinational executives, managers, and persons of specialized knowledge

• E-1 and E-2 treaty traders or treaty investors and their essential workers

• E-3 for Australian professional workers• TN under NAFTA treaty for Canadian and Mexican

workers• J-1 interns or trainees• O-1 for persons of extraordinary ability• Family-based immigration options

Strategic Options when shut out of H-1B

• Spouses of J-1, L-1, E-1, and E-2 can have employment authorization

• Extending F-1 status by obtaining new Form I-20 and obtaining Curricular Practical Training

Strategic Options when shut out of H-1B

• Combining Cap-Exempt with Cap-Subject employer:

If employee can get a cap-exempt H-1B with either a university, a nonprofit affiliated with a university, or a government or nonprofit research organization, then employee may also have a concurrent H-1B with a cap-subject company, even if there are no cap-subject H-1Bs available.

Strategic Options when shut out of H-1B

• Consider starting permanent residency application: PERM application if there is ample time and if employee

is not from India or China Outstanding Researcher petition combined with

Adjustment of Status and EAD applications

Strategic Options when shut out of H-1B

• Permanent Cap-Gap Fix: OPT automatically extended for all who file H-1Bs on April 1; extension ends upon notification from USCIS that petition was not selected in the lottery, or was selected but then denied.

• E-Verify Participants: OPT extended for those who are currently in OPT and have just graduated with a degree in Science, Technology, Engineering, or Math (STEM). OPT extension takes effect upon the filing of the I-765, even before approved.

Case Study

• Question: when in the hiring process would EPIX Pharmaceuticals know that a potential hire has an immigration issue? How would you vet out different immigration options?

• At first interview, ask two questions DOL has sanctioned:

• A. Are you presently authorized to work in the U.S.?

• B. Do you now, or will you in the future, require our sponsorship for employment-based visa status?

E-Verify System

• A web based program that uses DHS and SSA databases to electronically verify employee’s employment eligibility

• Only used for new hires, not existing employees

• It does not replace I-9 requirements and compliance

• Program is currently “voluntary” at Federal level, but some employers are finding it unavoidable Government Contracts--Executive Order 12989 and

independent agency regulations State laws

Registering for E-Verify• Register online at: www.vis-dhs.com/employerregistration

• Three access methods:

a. Employer (perform verification queries for all employees within a state, can register individually or statewide)

b. Corporate Administrator (enables additional oversight of all hiring sites regardless of state)

c. Designated Agent- perform verifications for client company

• Sign Memorandum of Understanding with DHS and SSA

• Read user manual and complete online tutorial

How to Use E-Verify• Within first three (3) days of employment, complete I-9 for new

employee

• After I-9 is completed, E-verify user must submit information directly from the completed I-9 Form. System will query databases of SSA and DHS

• Initial verification will return one of THREE results: a. Employment authorized

b. SSA Tentative Non-Confirmation (information mismatch with SSA)

c. DHS Verification in Process (usually within 24 hours receive notice of employment authorization or DHS Tentative Non-Confirmation)

Results of E-verify

• If employment authorized, user must record the system

generated verification the number on the I-9, OR print the screen with the transaction # and store it with the I-9

• If tentative non- confirmation (“TNC”), user must print non-confirmation notice, review with employee, and inform them of right to contest the TNC and have both parties sign. If employee chooses to contest, additional obligations ensue)

• If employee chooses not to contest, it is considered a final non-confirmation and employer may terminate employee

Tentative Non-Confirmation (“TNC”) Process

• If employee chooses to contest a TNC, employer must make a Referral to SSA/DHS through the E-verify website and print and provide a Referral Notice to the employee to take to the appropriate agency to resolve the issue.

• Employee has 8 Federal workdays from date of the Referral to provide the required information to SSA/DHS. Agency will update system within 2 business days with result, unless additional time deemed necessary. 10 day period cannot be initiated until the Referral is made by the employer through E-verify

• Employer may not take any adverse action against employee during appeal process unless it obtains independent knowledge that the person lacks work authorization

Final Non-Confirmation

• Employer must inform DHS via E-Verify if it continues to employ a person after receipt of a Final Non-Confirmation. Employer is subject to monetary penalty for failure to notify DHS (up to $1000).

• Employer is subject to rebuttable presumption that it has knowingly employed an unauthorized alien if it continues to employ an individual after a final non-confirmation

Memorandum of Understanding Employer obligations under MOU:

• E-verify can only be used after offer accepted and I-9 completed. Verification must be initiated within 3 days of hire.

• E-verify must be applied to all new hires, regardless of citizenship status

• Employer must post a notice confirming its participation in E-verify in an area visible to prospective employees

• Employer must post an Anti-Discrimination Notice issued by Office of Special Counsel DOJ in a visible area

Additional MOU Obligations• Employer must record E-verify authorization results on/with I-9

• Employer must carefully follow obligations related to Tentative Non-Confirmation process to initiate 10 day appeal process (requiring Notice of TNC to employee, initiation of Referral via E-verify, and Referral Notice to SSA/DHS)

• Employer must notify DHS if it continues to employ an employee after Final Non-Confirmation (invokes rebuttable presumption)

• Employer must allow DHS or SSA to make periodic visits to review E-verify related records , to interview them regarding their experience in E-verify, to interview employees hired during E-verify about their experience and must make other employment records available as requested by DHS and SSA

Advantage: Extending OPT

• OPT (Optional Practical Training) is granted to F-1 students for 12 months of post-degree work. An additional 17 months is now available, BUT:

• Only available to graduates with STEM degrees– Science– Technology– Engineering– Math

A complete list of STEM degrees is included in the DHS STEM Designated Degree Program List is located at www.mintz.com; click on ‘Practices’, and then ‘Immigration’.

Additional Requirements for Extended OPT

• In addition to STEM degree requirement, F-1 student must:

* be currently in OPT and maintaining F-1 status;

* be working for a US employer in a job directly related to the student’s major area of STEM study;

* be working for, or have accepted employment with, an employer enrolled in E-Verify

Obtaining and Maintaining Extended STEM OPT

• Extended OPT obtained by filing with USCIS Form I-765 with new Form I-20 endorsed by University DSO.

• A shocking display of empathy from USCIS: A timely filed I-765 for the STEM Extended OPT gives F-1 student the right to work while I-765 is pending up to 180 days.

• F-1 student has significant reporting obligations: must check in with University every six months, and notify University of all changes in address and employment.

Case Study

• Question: would the E-Verify system be beneficial for EPIX Pharmaceuticals?

U.S. Immigration Compliance Trends Overview

Increased immigration enforcement activities by U.S. government agencies have placed a heavy burden on employers to ensure compliance with immigration laws

Emerging Worksite EnforcementActions and Trends

• Increased focus on enforcement of employment-based immigration laws through employer audit, investigation and raid methods

• U.S. Immigration and Customs Enforcement (“ICE”) is the enforcement arm of the Department of Homeland Security (“DHS”)

• ICE continues to reiterate its intention to pursue worksite enforcement operations

• Penalties for non-compliance include significant monetary fines and criminal liability, including prison terms

• 2007 Enforcement Statistics relating to worksite enforcement:– 864 criminal arrests - 92 were in employers’ supervisory chain.

Criminal charges against employers included illegal hiring, harboring and conspiracy

– 4,077 administrative arrests– 4,940 total arrests– $30 million collected in criminal fines, restitution and civil judgments as

a result of worksite enforcement operations

Types of Employers at Risk in Context of Worksite Enforcement

• The types of employers at risk for an ICE investigation or enforcement operation range from small local employers to large national employers

• Large national employers such as Wal-Mart and Tyson Foods both have been a target of ICE raids where executives as well as undocumented workers are arrested for immigration compliance violations

• Smaller organizations in manufacturing and other industries have also been targets, including nationwide cleaning services, local poultry plants, local construction companies, textile companies and etc.

Ensuring Compliance and Avoiding Liability

Four separate areas of concern for most U.S. employers:– Compliance with Employment Eligibility Verification laws

(both federal and state laws)– Responding to Social Security No-Match Letters– Accuracy of Petitions and Applications submitted to

governmental agencies to secure an immigration benefit (i.e. temporary work visa or employer sponsored permanent residence (green card) status - defending against DHS audits

– Compliance with Department of Labor requirements

Employment Eligibility Verification

• In the past, federal laws exclusively governed U.S. employers’ obligations to verify a potential new employee’s or an existing employee’s right to work in the U.S.

• More recently there is an emerging trend of State legislation governing an employer’s obligation to ensure employment eligibility of all employees

• These laws vary by state and place a heavy burden on national employers with multiple offices and facilities throughout the U.S. to create and maintain processes which ensure compliance

• Managing the various state requirements and ensuring compliance involves training staff on new procedures, creating policies and other due-diligence issues which draw on human resources

• Increased obligations and penalties for employers under federal laws

Strategies for Ensuring Compliance with Employment

Verification Laws• Establish a workable process by identifying roles/positions

that will be responsible for employment verification (Staffing, Human Resources and etc).

• Convey importance of ensuring eligibility to work in the U.S. to and through senior levels of management

• Provide periodic training and refresher courses for employees designated to handle the employment verification process

• Perform frequent self-audits to ensure those charged with employment verification duties understand and are completing the tasks correctly

• Identify tools which assist in ensuring timely re-verification

Corporate Strategies for Ensuring Accuracy of Information in

Petitions• Establish an internal policy that is disseminated broadly to business

managers and stakeholders which articulates who, how and when the company will sponsor for immigration benefits (i.e. by level, type of role and etc)

• Convey importance of accuracy of petitions to business managers and key stakeholders

• Avoid working directly with the employee or prospective employee to secure information that should be from a corporate perspective (i.e. job descriptions, titles, salary information and etc)

• Partner with HR and Business to build alignment on the immigration process

• Establish a review process which is designed to identify any incorrect information

• Have business managers or individuals providing information sign certification language or petitions directly where appropriate

A Corporate Immigration Compliance Policy Blueprint

A Thorough Immigration Policy Will:• Establish that all employees will comply with all federal, state and local

immigration laws• Designate a compliance officer who will ensure policy is enforced• Mandate training at all levels within the company• Spell out consequences to employees for violating the policy• Establish protocol for dealing with government visits, audits, investigations and

raids• Set out standards for:

– I-9 compliance– Compliant responses to Social Security No-Match Letters– Compliance with Department of Labor wage and record-keeping

requirements• Set out uniform standards for sponsorship of employees for immigration benefits

so benefits are provided in a non-discriminatory fashion• Ensure employees are not asked to reimburse immigration expenses that are

required by law to be paid by the employer

I-9 Compliance• Identify who is responsible for completing I-9• Provide regular training to such personnel on documentary

requirements and regarding non-discrimination requirements• Establish consistent names for maintaining I-9 records and for

keeping the records for the proper length of time• Ensure a reminder system is in place to conduct re-verification and

to purge records when permitted• Establish schedule for internal audits• Ensure independent contractors are not hired with knowledge they

lack a legal status• Ensure all contracts with subcontractors performing work on

premises (1) contain representations and warranties that subcontractor is in compliance with all federal, state and local immigration laws and (2) include indemnification language

Compliance with Social Security No-Match Letter Requirements

• New DHS regulations (currently on hold) create new definition of constructive knowledge of employee’s lack of work authorization.

• Establish standard approach to receipt of all Social Security no-match letters

• Confirm in writing that such letters shall not be ignored• Instruct employees that receipt of no-match letter does not

prove the employee is not a legal worker• Require that all employees be notified in writing of receipt

of receipt of no-match letter• Establish standard time period during which each employee

subject to a no-match letter may address the discrepancy and apply time period consistently

DOL-Related Requirements• Temporary work visa (H-1B) requirements:

– Ensure employee is paid correct wage as promised to DOL and DHS– Ensure no improper benching of employee– Ensure compliance file properly maintained– Ensure no unlawful penalties imposed against employees

• Permanent Residence (PERM) Requirements:– Ensure labor market test properly completed - ads properly placed,

etc.– Ensure recruitment documentation and results maintained for 5

years from date of filing– Ensure process conducted in good faith (e.g. not in a manner that

would have a chilling effect on U.S. applicants)– Ensure employer does not improperly require payment by employee

or seek reimbursement by employee of legal fees and costs required by law to be paid by employer

Case Study

• Question: what policy and guidelines does EPIX Pharmaceuticals have in place to ensure compliance with as many immigration laws as possible?

THANK YOU!