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There are three areas of immigration law where local governments are likely to need help or run into trouble:  (1) sponsoring nonimmigrant visas, (2) sponsoring immigrant petitions and (3) verifying eligibility to work in the U.S. 

I. Employment-based Nonimmigrant Visas

Employers, including local governments, may sponsor nonimmigrant visas issued to foreign nationals seeking to enter the United States on a temporary basis for various purposes, including employment. Local governments often seek to hire foreign nationals in areas including engineering, accounting, information systems, teaching, social work and other areas.

Sands Anderson works with employers to develop effective immigration strategies for prospective foreign national employees; prepares and files the appropriate visa petitions with United States Customs and Immigration Services (USCIS); tracks and files visa extension petitions as necessary; and prepares the employee for all required interviews.

II. Permanent Residency Petitions/Applications

Often, employers who have invested the time and money to sponsor the nonimmigrant visa for and train a foreign national employee will also sponsor an immigrant petition for permanent residency (i.e. green card) and continue their employment.

Sands Anderson works with employers to develop effective permanent residency strategies for those employees on nonimmigrant visas; develops and implements recruitment measures required by the Department of Labor; prepares and files the appropriate applications and petitions; and prepares the employee for all required interviews.

III. Verifying Employment Eligibility

A. Form I-9

All U.S. employers are responsible for the completion and retention of Form I-9 for each individual hired for employment in the United States, including both citizens and non-citizens. In recent years, Immigration and Customs Enforcement (“ICE”), the enforcement arm of USCIS, has greatly increased audit and raids resulting in civil and criminal penalties for employers and those completing I-9 Forms on behalf of employers. Local governments and their employees are not immune to audits, raids, or penalties.

B. E-Verify/Mandatory Use by Federal Contractors/Subcontractors

The E-Verify program, a partnership of the Department of Homeland Security (“DHS”) and the Social Security Administration (SSA), is an internet-based system that allows employers to electronically verify the employment eligibility of newly hired employees, regardless of citizenship.

Since September 8, 2009, DHS mandates E-Verify use by federal contractors and subcontractors awarded a contract which contains the Federal Acquisition Regulation (FAR) E-verify clause.

Local governments with federal contracts, including contracts funded under the American Recovery and Reinvestment Act (“ARRA”), should be enrolled and participating in the E-Verify Program.

Sands Anderson works with employers to design and implement effective I-9 Compliance Programs, as well as providing I-9 training, I-9 audits, and E-Verify training. Sands Anderson also represents employers who have been raided or audited to mitigate or avoid penalties and fines.

Sands Anderson Marks & Miller’s immigration lawyers and local government team have experience in these areas.  For more information, please contact R. Oliver Branch or Andrew R. McRoberts .

In 2007, this changed, but the statutes approved that year (Virginia Code sections 15.2-2316.1 and 15.2-2316.2) had some significant limitations, perhaps most significantly the requirement that the separation of the rights from the “sending” property be immediately “attached” to the receiving property.  In 2009, the statutes were significantly amended to correct this and other perceived barriers to localities and landowners using TDRs.  2009 Va Acts of Assembly ch. 413.

To assist localities and landowners alike in pursuing a TDR program, a group of stakeholders gathered at the Virginia Association of Counties (VACo) office for many months in 2009 to create a “model ordinance” and associated forms.  I blogged about this last Fall in an article entitled, “Transfer of Development Rights are on the Way”.  Now, the help has arrived! 

Here is the official announcement from VACo:

” A copy of a model transfer of development rights (TDR) ordinance has been posted on VACo website at this location: http://www.vaco.org/LegislativeNews/LegPubs/Model%20TDR%20Ordinance.pdf

“The ordinance, which is the product of a work group representing broad stakeholder interests meeting over the past four months, also includes commentaries, model deeds and suggested references.

“The initiative for the model ordinance was the extensive changes to the TDR statute enacted by the 2009 General Assembly (Ch. 413, 2009 Va. Acts). Because of those legislative amendments, which included local taxation of the severed rights during the time they are unattached to a specific land parcel, several stakeholders felt that a usable model ordinance was needed to encourage localities’ adoption of TDR provisions.

“The work group that produced the model ordinance included local government representatives, attorneys and lobbyist, planners, developers, appraisers and other real estate professionals, state officials, and other agriculture interest groups.

“As with any model ordinance localities are reminded that local conditions and concerns may require modifications before adoption.”

Any locality hoping to start a TDR program, or to revamp an existing one, would do well to review the work of the group, which includes extensive commentary and issues to consider, as well as the model ordinance itself.  The group discussed many issues, some particularly thorny, which localities should address in any TDR ordinance, whether based upon the model or not.  Some issues arise from the wording of the statutes, and others from the creation of a new class of taxable real estate — the “floating” development right. 

I and the whole Local Government Team at Sands Anderson Marks and Miller would be excited and proud to assist anyone with legal issues surrounding TDRs, which hold so much promise as a local government planning and land use tool, as well as an estate or financial planning tool for landowners. 

My thanks to VACo for including me on the team that prepared this document, to Chip Dicks for his excellent work in Chairing the group, to Ted McCormack for his working in arranging and coordinating the group, and to all those on the team for the good work, cooperative spirit and helpful work product that emerged. 

Note was made of the event on the Sands Anderson Marks & Miller website, of course.  The full interview is archived at the 22 Tweets website at this link:  http://22tweets.com/index.php/2009/10/22/andrewmcroberts/

I have often been interviewed by the press as a long-time local government attorney, of course.  But these interviews were typically about my client localities, their elected officials or staff and their activities.  This interview was one of only a few I can remember about me.  A little scary, actually, but fun.  I recommend it to other lawyers who tweet.