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Immigration Law Update - October

October 29, 2008

1. Worksite Enforcement

Immigration and worksite enforcement continues through state laws mandating the use of the federal government's E-Verify system. Examples include Arizona's Legal Arizona Workers Act, which makes participation in the federal government's E-Verify mandatory for all Arizona employers and allows the superior courts in Arizona to suspend or revoke business licenses of employers who knowingly or intentionally hire unauthorized aliens. The Legal Arizona Workers Act was recently upheld by the U.S. Court of Appeals for the Ninth Circuit. Other states have enacted laws that require certain types of employers, such as state agencies or state contractors, to participate in E-Verify. Currently, there is no pending legislation in Michigan that would mandate participation in E-Verify.

Recent federal regulations include a supplemental Social Security No-Match Rule and a proposed regulation that would require certain federal contractors and subcontractors to participate in E-Verify. The public comment period on the proposed E-Verify regulation has closed, and the agency is currently in the process of evaluating the comments and finalizing the rule.

On October 23, 2008, the Department of Homeland Security ("DHS") issued a Supplemental Final Rule to provide additional background and analysis of its August 2007 Social Security No-Match Rule. The Supplemental Final Rules is scheduled to be published in the Federal Register in the coming weeks. Both the August 2007 rule and the Supplemental Final Rule require employers to terminate employees who do not resolve the discrepancies that resulted in a Social Security No-Match letter within 90 days or risk DHS claims that the employer had constructive knowledge that the employee was unauthorized. The U.S. District Court for the Northern District of California issued a preliminary injunction in October 2007 preventing enforcement of the August 2007 rule. DHS has indicated plans to request that the District Court lift the injunction in the near future so that it can proceed with implementation of the rule.

In addition, immigration enforcement continues to increase through Form I-9 audits and immigration raids. Immigration and Customs Enforcement ("ICE") reports that it made 1,100 criminal arrests in connection with worksite enforcement investigations in fiscal year 2008. Over 130 of the arrests involve owners, managers, supervisors or human resource employees who face charges from harboring to knowingly hiring illegal aliens. In addition to the criminal arrests, ICE reports more than 5,100 administrative arrests for immigration violations during worksite investigations in fiscal year 2008. In the prior year, ICE made more than 4,000 arrests in worksite enforcement cases, including 863 involving criminal violations. This represents a 45-fold increase in criminal worksite arrests compared to fiscal year 2001. Furthermore, in fiscal year 2007, ICE obtained more than $31 million in criminal fines, restitutions and civil judgments as a result of worksite related enforcement actions.

2.TN Visa Issued for Three Years

U.S. Citizenship and Immigration Services ("USCIS") has increased the maximum period of time a Trade-NAFTA (TN) professional worker from Canada or Mexico may remain in the U.S. before seeking readmission or obtaining an extension of stay from one year to three years. Both the initial period of admission and extensions will be granted in three-year increments. The TN nonimmigrant classification is a visa category available to eligible Mexicans and Canadians with at least a bachelor's degree or appropriate professional credentials who work in certain qualified fields pursuant to the North American Free Trade Agreement.

3. Diversity Lottery

Each year the U.S. Department of State distributes 50,000 immigrant visas to applicants from qualifying countries in a random drawing pursuant to the Diversity Visa Lottery Program. The application period for the 2010 Diversity Lottery is 12:00 p.m. EST Thursday, October 2, 2008 through 12:00 p.m. EST Monday, December 1, 2008. Applicants must apply on-line at www.dvlottery.state.gov and submit in the specified format digital photos of the applicant, applicant's spouse, and each unmarried child less than 21 years of age. The Department of State will disqualify all entries by an applicant if more than one entry for that applicant is received. More information on qualifying countries, education and work experience requirements, and the application process is available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

For more information about these or any other immigration matter, contact Kim Clarke at 616/336-6441 or Nina Thekdi at 248/567-7406.

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