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Immigration News - November 5, 2007

November 05, 2007

By Immigration Practice Group

* DHS to Issue Updated I-9 Form and Employer Handbook
* New Rule Eliminates Need for Adjustment of Status Applicants with Valid H and L Visas to Carry Receipt Notices Upon Return from Travel Abroad
* Failure to Pay Required Wage to Nonimmigrant Nurses Results in Back Pay Order of Over $1 Million

DHS to Issue Updated I-9 Form and Employer Handbook
The Department of Homeland Security reportedly will issue a revised and updated I-9 employment verification form in the near future. We expect that the new I-9 form will contain a reduced list of acceptable identity and employment eligibility documents that will match the list of acceptable documents under the agency's current regulations, which were last updated approximately ten years ago. The new I-9 form should no longer include, as acceptable evidence of identity and work authorization, the following documents from List A that are acceptable under the current form (although not acceptable under the current regulations):

  • A2: Certificate of U.S. Citizenship (Form N-560 or N-561)

  • A3: Certificate of Naturalization (Form N-550 or N-570)

  • A5: Permanent Resident Card or Alien Registration Receipt Card with photograph (Form I-151) (Form I-551 is still acceptable)

  • A8: Unexpired Reentry Permit (Form I-327)

  • A9: Unexpired Refugee Travel Document (Form I-571)

In addition, we expect that the new I-9 form will add Form I-766, Employment Authorization Document, as acceptable evidence of identity and employment eligibility. Although we cannot be sure of the exact timing of the new I-9 form's release, we have received reports that it may be issued within the next few weeks. We also expect that DHS will be issuing a new Handbook for Employers, which provides guidance to employers on I-9 procedures. The Handbook was last revised in 1991. Paul Hastings will monitor the situation and issue an alert when the new documents are released.

New Rule Eliminates Need for Adjustment of Status Applicants with Valid H and L Visas to Carry Receipt Notices Upon Return from Travel Abroad
USCIS has announced that certain adjustment of status applicants with valid H-1 and L-1 visas (or Canadian citizens who are visa exempt, but are in valid H-1 or L-1 status) are no longer required to present an adjustment of status receipt notice at a port of entry after a trip abroad in order to avoid having the adjustment application deemed abandoned. (The H-1 or L-1 visa holder must be returning to the U.S. to resume employment with the same employer for whom he or she has been previously authorized to work.) Dependents who hold H-4 or L-2 status and have valid visas (unless visa exempt) are also no longer required to present receipt notices.

This new rule eliminates the need for certain H and L visa holders to postpone travel plans until the issuance of an adjustment of status application (Form I-485) receipt notice. This is a welcome announcement since the issuance of receipt notices for these applications has recently been delayed by several weeks, if not longer, in light of the huge number of filings this past summer. This new rule only applies to H-1 and L-1 nonimmigrants and their dependents with valid visas, if required, and does not eliminate the requirement for all other adjustment applicants to present a valid advance parole travel document at the port of entry upon return from a trip abroad. Individuals are strongly encouraged to confirm whether they have the appropriate documentation prior to planning any trip abroad.

Failure to Pay Required Wage to Nonimmigrant Nurses Results in Back Pay Order of Over $1 Million
The U.S. District Court for the Northern District of Illinois has upheld an order by the Department of Labor requiring Alden Management Services ("Alden") to pay more than $1 million in back wages to 119 foreign national nurses from the Philippines. The nurses were working for Alden in the U.S. pursuant to H-1A visas. In obtaining the H-1A visas, Alden attested that it would pay the nurses at the same rate as that paid to other registered nurses employed by the same facility. Alden did not pay at that rate, but argued that it should not be required to pay at the rate required for registered nurses because the foreign national nurses on H-1A visas did not perform the duties of registered nurses. Instead, they served as CNA's (certified nurses aides) and RNLP's (registered nurses license pending). The Court rejected this argument, finding that Alden's attestation that it would pay at the rate for registered nurses required it to pay at that rate, even if the nurses were not performing registered nurse duties.

While the H-1A visa program is a fairly narrow and limited nonimmigrant category, the Alden case nevertheless has important lessons for other visa categories requiring a wage attestation, such as H-1B visas, E-3 visas, and the PERM labor certification process. Where an employer attests that it will pay a particular wage, the Department of Labor can be expected to require the employer to pay at the attested rate, even if the duties being performed by the employee are not what was originally expected. Enforcement of wage requirements is becoming a growing priority for the Department of Labor, so employers should be particularly vigilant about ensuring that they are complying with wage requirements.