Rose Immigration Law Firm: News Articles

Congratulations to Cheryl Williams, Rose Paxtor, and all the Rose Immigration staff who were successful in preventing the deportation of one of our long-term clients by successfully proving a complicated derivative citizenship claim. Our client’s journey to a U.S. passport was chronicled on the front page of Nashville’s The Tennessean newspaper on Friday, June 5, 2009. If you missed the article, click here, or visit the website at: http://www.tennessean.com/article/20090605/NEWS03/906050372/Deportation+order+in+Nashville+snares+U.S.+citizen

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As of June 1st, passports required for anyone to enter the U.S.

On June 1, 2009, the U.S. government will implement the full requirements of the land and sea phase of the Western Hemisphere Travel Initiative. The proposed rules require most U.S. citizens entering the United States at sea or land ports of entry to have a passport, passport card, or other travel document approved by the Department of Homeland Security. See the WHTI website for more details. Non U.S. citizen travelers should apply for appropriate travel documents as soon as possible. Please contact our office for assistance. [Top]

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February 2009 Newsletter

Click here to read our current newsletter. [Top]

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The "Key" to Immigration for Musicians.

Linda Rose recently authored an article about immigration options for musicians. Bender's Immigration Bulletin published this article on January 15, 2009. Click here to read the article. [Top]

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Religious worker regulations amended.

USCIS recently released new religious worker regulations. The thrust of the regulations is to address fraud concerns, and it impacts both ministers and other religious workers. Click here to read our summary. [Top]

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Linda Rose featured in The Tennessean's article on no-match letters, firm's recent seminar on I-9 compliance and worksite enforcement noted.

Linda Rose is featured in the November 17, 2008 edition of The Tennessean. The article centers on no-match letters. Our recent seminar on I-9 compliance and worksite enforcement is also noted. Click here to read the article. [Top]

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Electronic prescreening required for visitors to the U.S. traveling on a visa waiver

Beginning January 12, 2009, visitors to the U.S. using the Visa Waiver program must undergo electronic prescreening for admissibility to the U.S. by Customs and Border Patrol at least 72 hours in advance of travel. The Electronic System for Travel Authorization (ESTA) will be operational beginning August 1, and a preview has been posted on the CBP website. After January 12, 2009, Visa Waiver travelers will not be allowed to board a flight or cruise to the United States without an ESTA. Click here for more information. [Top]

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Tennessee's Business Journal and Tennessee Bar Journal publish article by Linda Rose and Rose Paxtor

Linda Rose and Rose Paxtor wrote an article about a new law in the state of Tennessee dealing with the employment of undocumented workers. The article was published in the Spring 2008 edition of Tennessee's Business Journal and a similar version of the article was featured as the cover story in the July 2008 Tennessee Bar Journal. Click here to view the article. [Top]

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Linda Rose quoted in article about changes to the marriage license law

Linda Rose was recently quoted in the May 24, 2008 edition of The Tennessean.. The article discusses a change in the marriage license law that formerly required a valid social security number or a valid passport and visa. The law prohibited the fundamental right to marry for anyone not possessing these documents. Click here to view the story. [Top]

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New Immigration Rule Extends Optional Practical Training to Cover H-1B “Cap Gap”

On Friday, April 4, 2008, the Department of Homeland Security issued a new rule that extends Optional Practical Training (“OPT”) for many students. The rule has two parts: 1) an automatic OPT work permit extension for certain beneficiaries of H-1B petitions accepted in the cap lottery; and 2) a 17-month work permit extension, by application, for a limited group of graduates. Below follows a summary of the new rule, which is effective immediately.

Prior to this rule, F-1 students were granted only one year of OPT. Often students use OPT to work until they obtain a H-1B status, which runs for at least six years. Due to the 65,000 cap on H-1B numbers, many employers have been filing H-1B petitions for their foreign student employers on OPT, requesting the first possible start-date, which has been October 1 st. But many students run out of OPT before the effective date of the H-1B status and are thrust into illegal status. The time between the end of the OPT and start of H-1B status is referred to as the “cap gap.”

I. Automatic OPT Extension to October 1, 2008

Change of Status requested. For students whose OPT expires before October 1, 2008, and who have a pending petition to change status to H-1B beginning October 1 st, the OPT and F-1 student status are automatically extended until October 1 st, unless the H-1B petition is denied.

Notify Consular Post requested. If the petition requested USCIS notify a consular post instead of “change of status” (which would, in most cases, have been the proper choice when filed under the old rules) the petition should now be amended. USCIS has not yet explained the procedure to do this, however.

This rule applies to all students regardless of their field of study and all employer H-1B petitions. If a student’s status or employment authorization ends between the time an H-1B application is filed and October 1 st, then this rule will fill the "gap" in their work authorization and status. Keep in mind that the H-1B petition must be filed with USCIS for the student to be eligible for the cap gap fix. Students whose H-1B petitions are not selected in the upcoming H-1B lottery will not receive this benefit.

II. 17-Month Extension of OPT

The new rule establishes complex criteria for certain F-1 students to be granted an OPT extension for 17 months, for a total, in some cases, of 29 months of OPT. This includes both new applications and extending current OPT.

-- Overview

Foreign students with a degree in science, technology, engineering or mathematics (“STEM”), who have OPT and are working in their field for an employer enrolled in the Department of Homeland Security E-verify Program, with the endorsement of the school’s DSO (Designated School Official for student visa matters) may:

file an application to extend OPT employment authorization for an additional 17 months (29 months total)

the OPT Employment Authorization Document (EAD) will be automatically extended up to 180 days while the application is pending

the employer will be required to report termination of employment to the DSO or other DHS designated agent

the DSO will report the details of the student’s employment, and the maintenance of status through SEVIS (the government’s post-9/11 student tracking system).

-- Degree requirement

To be eligible for the 17-month extension, a student’s degree must be in one of the following areas:

Actuarial Science
Computer Science (other than data entry/microcomputer applications)
Engineering
Engineering Technologies
Biological and Biomedical Sciences
Mathematics and Statistics
Military Technologies
Physical Sciences
Science Technologies
Medical Scientist (MS or PhD)

The Classification of Instructional Programs developed by the U.S. Department of Education National Center for Education Statistics is utilized to determine degree classification.

-- Employer requirements – E-Verify

The student may work only for an employer enrolled in the E-Verify program. Only one percent of employers are currently enrolled in E-Verify. Participating in E-Verify requires an application by the company, and signing a “Memorandum of Understanding.” This involves an ongoing commitment by the company to utilize the government’s E-Verify system to verify that EVERY new employee has a legal right to work in the U.S. – not just foreign students with F-1 visas.

Most employers are not currently enrolled in E-Verify. There are costs and burdens as well as benefits to this program beyond those related to OPT. Whether to enroll in E-Verify will be a business decision for each employer and will be driven by many factors.

If a student applies for a 17-month extension or 29-month OPT, the employer must agree to notify the student’s DSO or other agent designated by DHS within 48 hours should the student’s employment end.

-- DSO, student, and employer responsibilities

A student must request his or her DSO to recommend the extension. The DSO will verify the student’s eligibility, certify that the student’s degree is on the STEM Designated Degree Program List, and assure that the student and employer are aware of their responsibilities for maintaining status. The recommendation by the DSO is made through the online SEVIS database. It requires an interface, which, as of this writing, is not available.

The student is required to report to the DSO every six months to verify continued eligibility. Within 10 days, the student must also report to the DSO any change of name, mailing or residential address, employer name and address, and interruption or loss of employment. The DSO will update SEVIS with this information. The DSO will enter these reports into SEVIS.

The employer is required to report any termination in employment.

-- Continued employment

OPT employment must be in the area of the student's education (i.e., STEM). Students with OPT must remain employed to maintain status. Cumulative unemployment of more than 90 days during post-completion OPT (12 months) will be considered violation of status. Cumulative unemployment of more than 120 days during the 17-month extension will be considered violation of status.

III. Questions and comments

Questions remain open including the following, many of which we expect will be clarified in the near future:

When will STEM graduates be able to apply for the 17 month extension?

Where employers requested on pending H-1B applications "consular notification" rather than “change of status” for F-1 students with "gap" problems, will USCIS allow petitions to be amended to request a change of status?

When will SEVIS be updated to reflect the new regulation?

How will those with automatic extensions be able to document the extension for purposes of renewing driver's licenses, or updating I-9 forms?

Linda Rose is on a committee of the American Immigration Lawyers Association, which will submit a detailed comment about this rule to the Department of Homeland Security. Among other things, the committee will address the onerous burdens placed on employers and the issue concerning unemployment and maintenance of status. Please speak with one of our lawyers if you have comments you feel should be addressed.

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January 2008 - Linda Rose named among the top 150 lawyers

For the past four years, Linda Rose has been named among the top Lawyers in the State of Tennessee. Once again, for a fifth time, she has earned this important distinction. Business TN magazine surveys lawyers every year to indentify the top lawyers in the state. Linda Rose is named one of the top lawyers in the state for her work in the field of immigration law. Click here to view the story. [Top]

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Linda Rose quoted in article about changes to the driver's license law

Linda Rose was recently quoted in the January 31, 2008 edition of Nashville's City Paper. The article discusses the problems resulting from the Tennessee driver's license law passed in October 2007. See "Driver's Licenses - Fight for your Right" below. A new law is currently being voted on to correct the issue and allow documented workers who will be in the U.S. less than a year to receive a Tennessee driver's license. Click here to view the story. [Top]

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Driver’s Licenses – Fight for your Right

If any of your employees need to apply for a new Tennessee driver’s license, you might want to consult with us first. You would think a driver’s license application is a straightforward process. But under a new Tennessee law that took effect in October 2007, TCA § 55-50-331(g), the DMV will issue licenses only to those applicants who can demonstrate authorized legal status for a period of at least one year. The problems with this law are endless. Take the O-1 biomedical research scientist, in complete legal status. O-1s are issued only in one-year increments. By the time the research scientist receives his or her approval and goes to the DMV, the status is valid for less than a year. Result? License denied! There is an alternative, however. The applicant must request (demand) a “records review” where by the applicant’s immigration paperwork will be reviewed by a division within DMV. That division will then make a determination whether issuance of a license is consistent with the spirit of the law. [Top]

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Tennessee Employers Beware License Revocation Law

Effective January 1, 2008, a new Tennessee law went into effect. This law authorizes the revocation of a business license for any employer that knowingly employs an illegal alien. Excuse us for the use of the term “illegal alien” but that is the precise language of the statute. Any foreign worker who is either undocumented (in U.S. illegally) or without authorization to work (could be in U.S. legally) is considered an “illegal alien” for purposes of this law. The employer who is found to be employing workers in violation of the immigration law will be given a one-time opportunity to correct the indiscretion. After that, the employer’s license to do business will be revoked for one year. The full text of the new law can be found at Tennessee Code Annotated 50-1-103, accessible from HERE. How vigorously this law will be administered and its economic impact is yet to be seen. [Top]

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"A day without Mexicans would be a very sad day in Tennessee." -Linda Rose

Linda Rose was recently quoted in two articles. The first article, from The Tennesseean, discusses the issue of new Tennessee state laws in effect to curb hiring of undocumented workers. Click here for full story. [Top]

The second article, printed in The Atlanta Journal-Constitution, discusses the difficulties that properly-documented foreing nationals are encountering in trying to obtain a driver license under new Tennessee state laws. Click here for full story. [Top]

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Department of Homeland Security abandons current "no match" rule

"The Bush administration will suspend its legal defense of a new rule issued in August to punish employers who hire illegal immigrants, conceding a hard-fought opening round in a court battle over a central measure in its strategy to curb illegal immigration, according to government papers filed late Friday in federal court." New York Times, Nov. 25, 2007. Click here for full story. [Top]

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Linda Rose Citizenship Op-Editorial published in the October 21, 2007 edition of The Tennessean

The October 21, 2007 edition of The Tennessean featured an Op-Ed piece by Linda Rose. The editiorial explains that the difficulty of becoming a U.S. citizen extends well beyond the controversial new citizenship test. Click here to read the article. [Top]

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September 2007 - Linda Rose quoted in article in Knoxville's The Daily Times

Click here to view the article that quoted Linda Rose concerning the Constitutional right to due process as it relates to the judicial conduct of Judge Young of Tennessee. [Top]

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Rules for non-U.S. citizens applying for a Tennessee Driver's License or Identification Card

Effective October 1, 2007, the State of Tennessee has announced new rules related to non-U.S. citizens applying for a Tennessee Temporary Driver or Identification License. A Driver or Identification License is available to individuals living in Tennessee who are authorized to stay in the United States. Among other things, the individual applying for a license must provide proof of legal status. This can be an I-94, I-94W, Lawful Permanent Resident card (I-551), Temporary Resident Identification Card (I-688), or Employment Authorization Card (I-766). The state requires that these documents be valid for at least one year beyond the date of applying for the license. Since most Employment Authorization Cards are valid for only one year, and since most cards are received after their effective start dates, individuals applying for a license might not be able to use their employment cards to prove legal status. This is an unfortunate circumstance that we are attempting to correct with the State Department of Safety. We will keep you informed.

For details of what these state-issued documents are and the documents required to apply, please visit http://www.tennessee.gov/safety/driverlicense/tdl.htm.[Top]

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Department of Labor publishes new rules for Labor Certifications, requiring employer to pay legal fees and eliminating substitution of foreign beneficiary

The Department of Labor published a Final Rule in the Federal Register effective July 16, 2007 which makes significant changes in the Labor Certification program. This has been driven by concern with fraud schemes involving false job offers and sale of labor certifications. While we trust that our clients and associates have not engaged in any fraudulent activities, unfortunately all parties involved in the labor certification process must adhere to the new rules. The rules will:

Require Employers to pay all legal fees and recruiting costs for the preparation, filing and processing of a Labor Certification application on or after July 16, 2007. These costs cannot be transferred to the alien employee by allowing the employee to pay the attorney directly. The rule does allow the employee to pay fees to represent her/his own attorney in the process, but only when the employer has a separate lawyer.

Labor Certifications will now expire within 180 days of approval if an I-140 petition is not filed within 180 days of approval. Effective July 16, 2007, the employer must file an I-140 petition within 180 days of approval of the underlying labor certifiction application, or the labor certification will become invalid. Previously labor certifications were valid indefinitely.

Substitution of alien beneficiaries will no longer be permitted. Substitution cases filed before July 16, 2007 will not be subject to this prohibition. Substitution of employers has been permitted in very limited circumstances. It is not clear whether the rule forbids this practice.

Sale, barter or purchase of an approved Labor Certification is prohibited.

Employers and Attorneys who violate these rules will have their labor certification processing suspended and be barred from filing for five years.

What does this mean for employers?

Employers who already pay full costs and legal fees will not be able to recover these fees through contracts that provide for recovery of costs in the event the employee leaves the employer too soon after obtaining approval of permanent residence based on labor certification.

For employers who do not pay the full costs or have the employee share costs and fees:

We encourage you to develop your relationship with immigration counsel to take control of your labor certification cases and to pay the full fees and costs. You may think of it as the employee’s case because they benefit from it, but in they eyes of the Department of Labor it is your case and your responsibility. If you are responsible to pay, then you should be involved rather then delegate full control to the employee.
If you have cases in the pipeline, begin them immediately. If the attorney is paid by the employee, or if the employer deducts the costs from the employee’s wages prior to July 16, 2007, the new rule does not apply, even though the case is not yet filed or approved by that date.
Consider participating in a lawsuit on this issue if you will not pay fees and costs. Contact us if further information is desired. The American Immigration Law Foundation is seeking employers who are willing to be plaintiffs in a lawsuit to challenge the unfairness of the new rule.

What does this mean for employees?

If your employer is unwilling to pay fees or costs, you can make payment of the labor certification portion of your case before July 16 when the rule comes into effect.
After that date it will become more difficult to find representation. One possibility is to have one attorney represent you and another represent he company. You can pay one attorney where the company has another attorney. We are exploring how this option might work.
Consider participating in a lawsuit if your employer will not pay, but will allow their name to be used in the lawsuit.

There is no shortage of immigration news these days. We will issue separate Bulletins on the proposed USCIS filing fee increases effective July 30, 2007 and the Elimination of the Visa Number backlog for all Employment-Based categories except unskilled workers for the month of July. Meanwhile, we will continue to evaluate the impact of the labor certification rules as we modify our practices and procedures to comply with the new rules. [Top]

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Linda Rose quoted in the Chattanooga Times on immigration difficulties and national security

Chattanooga's major newspaper Chattanooga Times quoted Linda Rose in its May 31, 2007 edition. The article discusses the increased difficulties encountered by immigrants since 9/11.

Click here to read the article. [Top]

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Linda Rose quoted in The Tennessean on employer compliance efforts by immigration service

The major Nashville newspaper The Tennessean quoted Linda Rose in its April 13, 2007 edition. The article focuses on new, stricter, employer compliance efforts by the immigration service.

Click here to read the article. [Top]

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USCIS Reaches Fiscal Year 2008 H-1B Cap

In an Update issued by the U.S. Citizenship and Immigration Services (USCIS), the fiscal year 2008 H-1B cap was met on April 2, 2007, the first day for submitting petitions for H-1B classification. USCIS received approximately 150,000 H-1B petitions subject to the 65,000 cap. Therefore, USCIS regulations mandate random selection of petitions for adjudication in this scenario. The selection process will include all H-1B cap-subject petitions received on April 2, 2007 and April 3, 2007. Out of the 150,000+ H-1B cap-subject petitions, approximately 65,000 will be selected for processing, minus “carve outs” reserved for special cases. Any petition not selected will be returned with all filing fees.

All petitions must first be receipted before the random selection can take place. As such, USCIS indicates it will be several weeks before the selection process will go into effect. We will continue to closely monitor this situation and advise clients appropriately.

Click here to read the USCIS Update. [Top]

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On-Line AR-11 Change of Address

The Department of Homeland Security has now made it possible to update a foreign national's address instantly on-line. This is a notable improvement to the prior, mail-based system, which can still be utilized when lack of internet access is an issue. As you know, all foreign nationals are required to notify USCIS within ten days of any address change. Failure to do so can trigger future inadmissibility. Accordingly, we urge you to make use of this new, on-line system. When updating your address, we suggest you keep a print-out of the completed form, and a written notation directly on the face of your print out confirming the date and time the electronic transmission was made. Please let us know if you have any questions on this procedure.

For more information, go to: www.uscis.gov/AR-11. [Top]

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IMAGE Program Gives Employers Help with I-9 Compliance

On July 26, 2006 the Department of Homeland Security announced a new program to help employers meet I-9 requirements for employment eligibility verification. The program, entitled "ICE Mutual Agreement between Government and Employers (IMAGE)" is designed to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers.

For some of our clients the IMAGE program might be a useful tool for workplace compliance. Please let us know if your company is interested in implementing the program. We will then evaluate the benefits and risks of the program with your orkforce in mind.

For more information, go to: https://www.vis-dhs.com/EmployerRegistration/StartPage.aspx?JS=YES&AccessMethod=. [Top]

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