Tag Archives: United States Citizenship and Immigration Services

Form I-9 Compliance Update

Contributed by Sara Zorich

Green Cards May No Longer Always Contain a “Signature”

Employers should be aware that some Green Cards (“permanent resident cards”) now have an image stating “Signature Waived” on the front and back of the card where a signature would normally be located instead of the permanent resident’s actual signature. U.S. Citizenship and Immigration Services (“USCIS”) has indicated that these cards are issued to people entering the U.S. for the first time as lawful permanent residents after obtaining their immigrant visa abroad from a U.S. Embassy or consulate. This process began in February 2015. The Green Cards are valid documents and acceptable to support an employee’s authorization to work in the U.S. Employers should train the employees responsible for the Form I-9 process regarding this change.

EADs Come With Varying Expiration Dates Based on Court Injunctiongreen card

On February 16, 2015, a federal district court judge in Texas granted a preliminary injunction temporarily blocking the implementation of President Obama’s Deferred Action for Parents of Citizens and Lawful Permanent Residents (“DAPA”) and the expansion of Deferred Action for Childhood Arrivals (“DACA”). As a result of the injunction, USCIS was ordered to stop issuing 3-year Employment Authorization Documents (“EAD”) for DACA recipients and only issue 2-year EADs going forward.  Approximately 2,100 3-year EADs, issued after February 16th, were required to be returned to USCIS by July 31st. USCIS has indicated that they have issued 2-year EADs to the 2,100 affected persons. Note, the February 16th injunction DOES NOT affect the approximately 108,000 three-year EADs that were issued PRIOR TO the February 16th injunction going into effect. There continues to be ongoing litigation regarding the implementation of DAPA and the extended DAPA which will affect the period of time in which a DACA recipient may receive an EAD.

Employers should be aware that their employees may present EADs with varying expiration periods. Employers need not keep track of the daily process of the ongoing federal litigation but should train their employees responsible for the Form I-9 process that there is no set expiration date for an EAD and the expiration will vary based on the EAD. Remember, employers are not required to be document experts.  During the Form I-9 process, employers are required to accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if the employee provides a document that does not reasonably appear to be genuine and relate to them during the Form I-9 process, you must reject that document and ask the employee to present alternate documents that satisfy the requirements of Form I-9.

Immigration Updates

Contributed by Sara Zorich

Since Congress has recessed for the holiday break, no immigration reform bills and/or comprehensive immigration reform bill is slotted for vote in 2013.  It appears that there will be a major push for the topic to be addressed during 2014.  We anticipate that mandatory E-Verify will be a component of any immigration bill passed, thus all employers must be cognizant of pending immigration reform.  We will keep you updated of the developments in 2014.

December has been a busy month for E-Verify updates.  The U.S. Citizenship and Immigration Services (USCIS) issued a number of announcements regarding updates to E-Verify policies and procedures:

  • There is a new page for employers on E-Verify that explains the role of E-Verify Monitoring and Compliance. (http://www.uscis.gov/e-verify/employers/monitoring-and-compliance) Employers should review this information and note that their usage of E-Verify is being monitored.  Suspected misuse or abuse of the program is being referred to appropriate agencies for enforcement.  Misuse/abuse of the program could lead to an employer to incur fines, back wage payments and/or debarment from the program.
  • On December 8, 2013, E-Verify released new Memorandums of Understanding (MOU) for those employers participating in E-Verify.  The revision date noted on the new MOUs is June 1, 2013.  The effective date of the MOU for new users is December 8, 2013.  Existing E-Verify employers/users do not need to execute a new MOU but are bound by the new or revised MOU that applies to their access method.  The effective date of the new MOU for existing users is January 8, 2014.  A copy of the new MOUs can be found at: http://www.uscis.gov/e-verify/publications/memos/publications-memorandums. Employers are encouraged to review the new MOU applicable to them to ensure they are aware of their new and continued obligations under the E-Verify program.
  • The E-Verify participation posters have been modified, requiring less ink while printing.  Employers currently enrolled in E-Verify do not need to print these new posters so long as they printed and have the prior versions posted in their workplace.  New employers signing up to E-Verify will be prompted to download, print and post the English and Spanish Notice of E-Verify Participation and the Office of Special Counsel Right to Work posters after enrollment and completing the online tutorial. Employers can access the posters after logging in to E-Verify.

Immigration Updates

Contributed by Sara Zorich

E-Verify

The federal government was shut down from October 1 – October 16, 2013.  During the governmental shutdown, E-Verify was unavailable for use.  E-Verify came back online on October 17, 2013.  Employers were unable to enter any employees into E-Verify during the governmental shutdown and employees were unable to address Tentative Nonconfirmations during such time.  Due to the shutdown, U.S. Citizenship and Immigration Services (USCIS) is allowing employers to enter each employee hired during or otherwise affected by the shutdown into E-Verify by November 5, 2013. If the employer is prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), USCIS has indicated the employer should select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field.  A copy of USCIS’s full instructions with additional information to assist employers dealing with E-Verify issues due to the federal government shutdown can be found at here.

According to USCIS, on October 22, 2013 E-Verify experienced some technical issues resulting in Tentative Nonconfirmations for employees who provided a U.S. Passport or Passport Card.  USCIS has provided guidance to employers who had this issue on October 22, 2013: “If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as ‘Invalid because the data entered is incorrect.’  You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.”  If, when entering the new case, employers are prompted to select the reason the case was not submitted within 3 business days, they should select “Technical Problems” from the drop-down menu.  Employers MAY NOT ask the employee to provide different documents if the U.S. Passport or Passport Card used to enter the employee into E-Verify on October 22, 2013 appeared to be genuine and relate to the employee.

New Driver’s Licenses for Undocumented Immigrants in Illinois

In December 2013, the Illinois Secretary of State will begin issuing driver’s licenses to undocumented immigrants meeting the following criteria: (1) has resided in the state for more than one year; (2) is ineligible to obtain a social security number (SSN); and (3) is unable to present documentation authorizing his or her presence in the U.S.  The driver’s licenses being issued are called Temporary Visitor Driver Licenses (TVDLs), have a purple banner (instead of the standard driver’s license with a red banner) and state they are “Not Valid for Identification.”  Since the driver’s license states it is not valid for identification, employers must take care NOT to accept a TVDL as a valid List B document for Form I-9 purposes.

DOMA is Dead – Implementation of the Supreme Court Ruling in U.S. Immigration

By Jacqueline Lentini McCullough

On June 26, 2013, the Supreme Court unequivocally affirmed there is no legitimate reason for the federal government to discriminate against married couples based on sexual orientation. The Defense of Marriage Act (DOMA) of 1996 defined marriage as a legal union between a man and a woman. The implication of the Supreme Court’s historic decision in the immigration context is that the U.S. must treat married gay and lesbian couples the same way it treats married heterosexual couples.

While many details of how the immigration process will be implemented are still uncertain, U.S. Citizenship and Immigration Services (USCIS) published Frequently Asked Questions (see www.uscis.gov) regarding same-sex marriage on July 2, 2013. A same-sex marriage can now be the basis for an immigrant visa for a spouse married to a U.S. citizen. In evaluating the petition, USCIS will look to the law of the location that the marriage took place to determine if it is a valid marriage for immigration purposes. The law of the state of residence must also be taken into account. Further fact specific circumstances may develop as federal immigration benefits are applied.

USCIS Implements New Immigrant Visa Processing Fee

Contributed by Jacki Lentini

The USCIS implemented a new Immigrant Visa fee effective February 1, 2013. Applicants for an Immigrant Visa package issued on or after February 1, 2013, at a U.S. Consulate or Embassy abroad (including Canada and Mexico) are required to pay two Immigrant Visa fees: one to the U.S. Department of State (DOS) and one to USCIS. The new USCIS fee will be $165.

Applicants for Immigrant Visas through the U.S. Consulates abroad will be required to pay the new USCIS fee through the USCIS website before departing the U.S. The applicant will need to provide USCIS with either checking account or debit/credit card information to pay the fee. It must be drawn on a U.S. bank. USCIS warns that if an applicant fails to pay this new USCIS fee, the applicant will not receive a Permanent Resident Card until the fee is paid. Failure to pay the fee will not affect the applicant’s lawful permanent resident status when entering the U.S. In the event that an individual does not pay the USCIS fee prior to departing the U.S., the individual will still have their passport stamped (I-551 stamp) evidencing lawful admission and permanent resident status when entering the United States as an immigrant. However, the admission stamp is only valid for one year. USCIS advises that applicants pay the immigrant fee as soon as possible to avoid any delays in receiving the Permanent Resident Card.

The immigrant fee will cover USCIS costs of staff time to handle, file and maintain the immigrant visa package, and the cost of producing and delivering the permanent resident card. Each month, USCIS processes approximately 36,000 immigrant visa packages.

The New Form I-9 Has Arrived!

Contributed by Sara Zorich

Employers have been hearing “buzz” about the new Form I-9 for about a year now.  After two rounds of revisions, U.S. Citizenship and Immigration Services (USCIS) announced it has released the new Form I-9.  Employers should take note that the new Form I-9 will look vastly different then prior versions of the Form I-9.  Most importantly, the new Form I-9 that employers and employees must complete is a 2-page form with seven additional informational pages.

Employers may begin using the new Form I-9 as of March 8, 2013.  The revision date on the new form is ‘‘(Rev. 03/08/13) N’.”  USCIS is allowing employers a 60 day grace period in which to start implementing use of the form with their new employees in order for employers to update their business processes.  USCIS has indicated that employers should not wait the 60 days in order to begin utilizing the form if they have updated their business practices.  Employers must be aware that after May 7, 2013, all prior versions ((Rev. 08/07/09) Y and (Rev. 02/02/09) N) can no longer be utilized for employment verification.  After May 7, 2013, employers who fail to use Form I–9 (Rev. 03/08/13)N may be subject to all applicable penalties under section 274A of the INA, 8 U.S.C. 1324a.

According to the USCIS notice in the Federal Registrar, the key revisions to the Form I–9 include: (1) adding data fields, including the employee’s foreign passport information (if applicable) and telephone and email, (2) improving the form’s instructions and (3) revising the layout of the form and expanding the form employees and employers must complete from one page to two pages.

Any employers utilizing electronic Form I-9 systems should contact their software vendor to discuss updating their system to comply with the new form and requirements.  Those employers who have developed their own electronic I-9 software must review their systems, update accordingly and ensure they are complying with the requirements for completing and maintaining electronic I-9’s.

Copies of the Form I-9 for download can be found at http://www.uscis.gov/i-9.  Additionally, copies of the Handbook for Employers (M-274) guide to using the Form I-9 has been updated and can be found at http://www.uscis.gov/files/form/m-274.pdf.

After the posting of this blog, USCIS revised and amended its prior instructions for the new I-9 form indicating that employers MUST begin utilizing the new I-9 form as of May 7, 2013 and not as of May 8, 2013.  Thus employers MUST begin using the new I-9 form for all new employees NO LATER than May 7, 2013.

Fiscal Year 2014: H-1B Filing Date Coming Up Quickly

Contributed by Jacqueline Lentini McCullough

The H-1B visa category is used by employers hiring a foreign national in a professional-level position (“specialty occupation”) requiring at least a Bachelor’s degree or the equivalent.  Typically, H-1B petitions are filed for foreign nationals hired from abroad, or for F-1 and/or J-1 students who are currently working in the U.S. pursuant to student status work authorization. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2013, with a start date of October 1, 2013 (FY 2014). 

There is an annual cap of 65,000 new H-1B petitions permitted per fiscal year, with an additional 20,000 H-1B’s available for foreign nationals who have earned a U.S. Master’s degree or higher, who are exempt from the H-1B cap. In addition the special rule pertaining to foreign nationals who have earned a U.S. Master’s degree or higher, petitions for new H-1B employment are exempt from the annual cap if the foreign national will work at an institution of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. 

While last year the H-1B cap was reached in mid-June, it is anticipated that the quota will be reached earlier this year. Of course no one has a crystal ball to say exactly when the cap will be exhausted. Consequently, it is advisable to file an H-1B petition by April 1, 2013.  Beware, the first step of the application process is filling the Labor Condition Application (LCA) with the Department of Labor, which can delay the application process.

Typically, it takes approximately five to seven days for an LCA to be certified, and the LCA must be certified before filing the H-1B petition with USCIS.