UPDATE - COBRA Subsidy: New Extension Through March 31, 2010
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The following EBG client alert should be of interest to all Florida employers.
By Joan A. Disler, Michelle Capezza, and Jason M. Rothschild
As we reported in our Client Alert of December 24, 2009 ("UPDATE: COBRA Subsidy: What It Means for Employers Now"), President Obama signed into law the Department of Defense Appropriations Act, 2010 (the "Defense Appropriations Act"), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 ("ARRA") pertaining to premium assistance for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). The Defense Appropriations Act extended the COBRA premium subsidy program for assistance-eligible individuals who became eligible for COBRA from the period that began September 1, 2008, and ended on December 31, 2009, to the period that ended on February 28, 2010.
On March 2, 2010, President Obama signed into law the Temporary Extension Act of 2010 (the "Act"). The Act extends the 15-month COBRA premium subsidy program for an additional 31 days. Thus, this extension will provide the COBRA premium subsidy for eligible individuals who are involuntarily terminated from employment through March 31, 2010. Congress is currently considering another bill, H.R. 4213, the Tax Extenders Act of 2009, which would extend the COBRA premium subsidy program through the end of 2010.
The Act also expands the application of the premium subsidy to individuals who had a reduction of hours of employment (occurring from September 1, 2008, through March 31, 2010), followed by an involuntary termination that occurs on or after March 2, 2010 and before April 1, 2010. These individuals are eligible for the premium subsidy on a prospective basis, whether or not they made an election of COBRA coverage on the basis of the reduction of hours of employment. In such cases, the involuntary termination of employment is treated as the qualifying event for purposes of obtaining the subsidy. However, pursuant to the Act, the maximum duration of the COBRA period is determined as if the qualifying event were the reduction of hours of employment. Any of these individuals who have these new election rights are not required to make payments for any continuation coverage between the reduction of hours and the involuntary termination of employment. It is not clear whether the intent of the legislation is also to allow an eligible individual to elect retroactive (unsubsidized) coverage as of the date of the reduction of hours of employment. Administrators of group health plans will now have additional notice requirements with respect to individuals who are COBRA assistance-eligible under this new rule.
The Act also includes clarification regarding an employer's determination as to whether an employee's termination was involuntary. The Act provides that, for purposes of the COBRA subsidy rules, a termination of employment shall be deemed to be an involuntary termination, provided that (i) the employer determines that such termination is an involuntary termination based on a reasonable interpretation of ARRA and the administrative guidance thereunder, and (ii) the employer maintains supporting documentation of the determination, including an attestation by the employer of involuntary termination.
The Department of Labor Employee Benefits Security Administration has updated the introduction on its COBRA Web page to reflect the Act and is in the process of updating the fact sheet, frequently asked questions and other materials on the COBRA Web page. Additional guidance is anticipated
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 United States before seeking readmission or obtaining an extension of stay. According to USCIS' official release this final rule changes "the initial period of admission for TN workers from one to three years, making it equal to the initial period of admission given to H-1B professional workers." The release also points out that eligible TN nonimmigrants "may now be allowed to receive extensions of stay in increments of up to three years instead of the prior maximum period of stay of one year." USCIS's Q&A, issued simultaneously with the official release, also states "[T]his final rule will extend that period to a maximum of three years to be consistent with other nonimmigrant worker categories, such as the H-1B." The new regulation's summary, although not a part of the regulation, states:
one year to three years, and allows otherwise eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years instead of the current maximum of one year. In addition, this rule grants the same periods of admission or extension to TD nonimmigrants, the spouses and unmarried minor children of TN nonimmigrants to run concurrent. The rule also removes the mention of specific petition filing locations from the TN regulations and replaces the outdated term ``TC'' (the previous term given to Canadian workers under the 1989 Canada-United States Free Trade Agreement) with ``TN.''
(2) Without a valid I-94. If the alien seeking readmission to the United States in TN classification is no longer in possession of a valid, unexpired Form I-94, and the period of initial admission in TN classification has not lapsed, then a new Form I-94 may be issued for the period of validity that remains on the TN nonimmigrant's original Form I-94 with the legend ``multiple entry'' and the alien can then be readmitted in TN status if the alien presents alternate evidence as follows:
leave the United States for any reason while the petition is pending, the petitioner may request that USCIS notify the consular office where the beneficiary is required to apply for a visa or, if visa exempt, a DHS-designated port-of-entry where the beneficiary will apply for admission to the United States, of the approval.
On July 31, 2008, the House approved "H.R. 6633" to extend E-Verify, the federal government's electronic employment verification system, by five years. In spite of the many signs previously given by U.S. Representatives approved without amendment, HR 6633 or the Employee Verification Act of 2008, 407-2. 
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to extend the life of the voluntary program five years to Oct. 31, 2013. U.S. representatives initially supported legislation to scrap E-Verify in favor of a new mandatory verification system, but according Giffords, she introduced a five-year extension to make time for more study of the current system. Further, Giffords told lawmakers during House floor remarks that "within five years or less, the federal government must develop a mandatory system that operates uniformly across all 50 states." Technically, the bill would 
authorize two Government Accountability Office studies about aspects of E-Verify. The first study would examine erroneous tentative nonconfirmations under E-Verify, specifically focusing on the causes of erroneous tentative nonconfirmations, processes to remedy errors, and the impact of such errors on individuals, employers, and federal agencies. The second study would analyze the effect of E-Verify on small businesses and other small entities using the program. That study would focus on the cost to small entities of complying with E-Verify, an estimate of the number of small businesses participating in E-Verify, an analysis of compliance requirements such as reporting and recordkeeping, and steps DHS can take to minimize the economic impact of participating in E-Verify. 
allow additional time to design a fair and effective employment verification system is a workable proposition for employees and employers alike. The bill now moves to the Senate, which is in recess until Sept. 8, 2008. 