Tag Archives: USCIS

How Will the End of the Deferred Action For Childhood Arrival (DACA) Affect Employers?

Contributed by Sara Zorich, September 14, 2017

On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”

Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without documentation, yet met several guidelines, could request consideration of deferred removal proceedings and request authorization to live and work in the United States legally. Currently, the program shields around 800,000 young undocumented immigrants from deportation and allows them to work legally.

U.S. Citizenship and Immigration ServicesU.S. Citizenship and Immigration Services (USCIS) issued new guidance on their website as of September 5, 2017 regarding initial DACA requests and DACA renewals. Here are the key points to note:

  • DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement
  • No new DACA applications will be considered, but applications filed by September 5, 2017 will still be processed
  • Current DACA recipients whose permits and or work authorization expires between now and March 5, 2018, have until October 5, 2017 to apply for renewal of these benefits

In light of this change, employers are recommended to review their Form I-9’s and identify any individual whose work authorization is going to expire on or before March 5, 2018. Employers should notify these employees of the date their work authorization will expire and remind them that the company cannot continue to employ the employee past this expiration date unless the employee is able to provide proof of continued work authorization. To reiterate, any DACA renewals must be filed no later than October 5, 2017 or USCIS will not process them. Read the USCIS announcement for details.

However, some Employment Authorization Document (EAD) categories (other than DACA) have been granted a 180 day automatic extension to the employee’s work authorization deadline. Visit the USCIS website for more information on the eligibility requirements for the Automatic Employment Authorization Document (EAD) Extension. Thus, employers must be careful to follow the applicable guidelines when addressing the proper end date of an employee’s work authorization and reauthorization requirements.

Final Takeaway: Employers must understand that they MAY NOT discriminate and cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.

We anticipate that Congress may now attempt to fast track some type of immigration reform related to those persons that were formerly covered under DACA, but only time will tell.

USCIS Proposes New Form I-9

Contributed by Sara Zorich

The current version of the Form I-9 is set to expire on 3/31/16. In advance of the expiration, USCIS has issued proposed changes to the Form I-9 for public comment. The new version would allow employers to complete the form on their computer with some imbedded prompts assisting them in the completion of the form. This is an attempt to reduce technical errors commonly made on the Form I-9. Employers would still be able to complete the form by hand if they choose to do so.

Some of the proposed changes included are:

  • Electronic checks on certain fields to ensure accuracy
  • Drop down lists for documents and calendars
  • Additional instructions to assist in completing fields
  • Streamlining the certification for foreign nationals
  • Separating the instructions from the form itself

Note, this new proposed Form I-9 is NOT an electronic I-9 as defined by the regulations. Thus, if a company uses this new form on their computer, they would still need to print the form, have the employee sign Section 1 and the employer would sign Section 2 and retain the original form.

The public comment period for the proposed changes ends on January 25, 2016. The proposed regulation and comment link can be found at http://www.regulations.gov/#!docketDetail;D=USCIS-2006-0068.

Employers should continue to use Form I-9 version 03/18/13N with expiration date 3/31/16 until a new version of the form is approved. The current version of the form may be found at http://www.uscis.gov/sites/default/files/files/form/i-9.pdf.

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

 

E-Verify Update Regarding 10-Year Record Deletion

Contributed by Sara Zorich

Employers who have been using E-Verify for more than 10 years must be aware that as of January 1, 2015, the U.S. Citizenship and Immigration Services (USCIS) will be deleting any transaction records in the E-Verify system that are more than 10 years old.  As of January 1, 2015, employers will no longer have access in E-Verify to any case they created prior to December 31, 2004.  In order to have a record of the cases that are more than 10 years old, employers must download the new Historic Records Report before the December 31, 2014 deadline.  USCIS is encouraging all employers who were using E-Verify on or before December 31, 2004 to download the Historic Records Report and maintain it with the company’s Form I-9’s.  Employers will be advised each year going forward by USCIS when the annual Historic Records Report is available for download.

Going, Going, Gone! USCIS’ FY 2015 H-1B Cap

Contributed by Jacqueline Lentini McCullough

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year 2015, which begins on October 1, 2014. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advance degree exemption. Approximately 172,500 H-1B petitions were received by USCIS during the filing period, which began on April 1, 2014. On April 10, 2014, USCIS completed a computer generated random selection process, or lottery, to select enough petitions to meet the 65,000 general cap and 20,000 advanced degree cap exemption. For petitions not selected during the lottery, USCIS will return the petitions along with the filing fees. The mad rush for H-1B cap filings highlights the importance of reforms to the legal immigration system to be based on market needs.

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.