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January 26, 2011
Immigration
Law Alert
Supreme Court
Upholds Treasury Rule that Denies FICA Tax Exemption for Medical
Residents
On January 11,
2011, the Supreme Court unanimously decided that medical residents
who spend most of their time with patients will continue to be
considered employees subject to Federal Insurance Contributions Act
(FICA) taxes, and not students who are exempt from those taxes.
The Supreme Court's decision denied an appeal by the Mayo Foundation
which offered medical residency positions and sought a refund of the
FICA taxes it had paid. Medical residents must continue to pay
FICA taxes under an Internal Revenue Service (IRS) regulation that
excludes full-time medical residents, who work more than 40 hours per
week, from a student FICA tax exemption. Under FICA, a student
who works for a school, college, or university is exempt from paying
FICA taxes so long as he or she is also enrolled in and regularly
attends classes at the same institution. However, federal regulations
exclude full-time employees who work 40 hours or more per week from
this student exemption.
New M-274 Handbook for Employers Issued
With Additional Form I-9 Guidance
The United
States Citizenship and Immigration Services (USCIS) has issued new guidance
for employers on the Form I-9, in a revised Employer Handbook,
Instructions for Completing the Form I-9 (M-274), which is now available
on the USCIS website. The handbook includes new
visual aids for completing the Form I-9; updated examples of USCIS
documents; additional guidance on lawful permanent residents,
refugees and asylees, individuals in Temporary Protected Status
(TPS), and exchange visitors and foreign students; additional
guidance on the processing of employees in or porting to H-1B status
and H-2A status; and additional guidance on extensions of stay for
employees with temporary employment authorization.
New H-1Bs Still Available
On January 21, 2011, USCIS announced
that it received approximately 62,800 H-1B petitions toward the
65,000 available per fiscal year, under the general H-1B cap.
In addition, USCIS received 19,700 petitions toward the 20,000
available per fiscal year, under the US Master's Cap. USCIS
continues to accept petitions toward the general cap and the US
Master's cap. The H-1B is a frequently utilized temporary work
visa for professional positions. For more information on the
H-1B visa, see the Clark Hill
website.
US Immigration and Customs Enforcement
(ICE) Updates
Below are summaries of recent efforts by the US
Immigration and Customs Enforcement (ICE) as they enforce laws
related to employment of persons not authorized to work in the
US. While there were many actions that took place recently,
below are a few of the highlights.
South Texas Bar
Owners Sentenced
On January 10,
2011 ICE announced that following an ICE investigation,
two bar owners were sentenced to 15 months in prison without parole
to be followed by a two-year-term of supervised release for
conspiring to harbor unauthorized workers they had employed as
barmaids and housed at their residence.
Indiana
Restaurant Owner Sentenced
On January 7,
2011, ICE announced that the former owner of a Chinese
restaurant had been sentenced to 36 months imprisonment, two years of
supervised release, and a $10,000 fine for concealing unauthorized
workers and for mail fraud following an ICE investigation. The
owner acknowledge that he did not have four workers complete the Form
I-9 or report their wages to the Indiana Workforce Agency.
Visa Priority Dates - February Visa
Bulletin
The February Visa Bulletin has been
posted. Visas for some employment based second and
third preference cases have moved forward. For a summary of priority
dates, retrogression, and how these dates impact US green card
processing, please visit the Clark Hill website.
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