Business Immigration Monthly Update - April 2009

Date: 4/1/2009
 Immigration Monthly_April.pdf

CBP Issues Reminder Regarding Documents Required for Travel - Effective June 1, 2009

U.S. Customs and Border Protection ("CBP") reminds travelers that effective June 1, 2009, the Western Hemisphere Travel Initiative ("WHTI") will go into effect at land and sea ports of entry, requiring travelers to present an approved travel document to enter the United States. The approved documents include a passport, a passport card, a NEXUS, SENTRI or FAST trusted traveler program card or a state- or province-issued enhanced driver's license. Lawful permanent residents of the United States should present acceptable evidence of their lawful residence status when entering the country, such as a Permanent Resident Card (I-551). Travelers under age 16 need to present only a birth certificate or alternative proof of citizenship. The government is urging travelers not to wait until the last minute to obtain the required travel documentation. Travelers without appropriate documents after June 1 may face delays as CBP officers attempt to verify identity and citizenship.

Employers are Required to use the Revised Form I-9 effective April 3, 2009

The U.S. Citizenship and Immigration Services (USCIS) recently reminded employers that they are required to use the new Form I-9 on or after April 3, 2009. The USCIS initially planned to implement this form on February 2, 2009 but the Obama Administration delayed the implementation to review the form. After its review, the Obama Administration decided not to further delay the implementation of the new revised Form I-9.

The new revised Form I-9 narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. The USCIS stated in its interim final rule that the revised Form will significantly improve the security of the employment eligibility verification process. The revised Form I-9 contains the following modifications:

  1. Requires that all documents presented during the verification process be unexpired. If a document does not contain an expiration date (such as a Social Security card) it is considered unexpired.

  2. Eliminates Forms I-688, Temporary Resident Card and I-688A and I-688B Employment Authorization Cards from List A of the form because the USCIS no longer issues these cards.

  3. Adds to List A as evidence of identity and employment authorization:

    A. A temporary I-551 printed notation on a machine-readable immigrant visa in addition to a foreign passport; and

    B. Valid passports for citizens of the Federated States of Micronesia and the Republic of the Marshall Islands along with Form I-94 indicating nonimmigrant admission under the Compact Free Association between the United States and these republics.

  4. Makes other technical changes to update the list of acceptable documents.

Since the release of the interim final rule implementing these changes, the USCIS published a final rule on February 23, 2009 stating that a military identification card issued by the U.S. Armed Forces is an acceptable List A document if the employer is the Armed Forces and the Form I-9 is completed for the purposes of military enlistment.

A copy of the new revised Form I-9 with a revision date of 02/02/09 can be found at www.uscis.gov/i-9. Additionally, the USCIS has revised its Handbook for Employers, Instructions for Completing the Form I-9 (M-274) which is also available on the USCIS website. The USCIS has warned that employers who continue to use the 06/05/2007 addition of the Form I-9 on or after April 3, 2009 maybe subject to civil monetary penalties in an Immigration Customs Enforcement (ICE) enforcement action.

LEGISLATIVE UPDATE: DREAM Act Reintroduced in Congress

The Development, Relief and Education for Alien Minors (DREAM) Act was recently reintroduced in both the U.S. House of Representatives and the U.S. Senate. The DREAM Act is bipartisan legislation that addresses the situation faced by young people who are brought to the United States years ago as undocumented immigrant children and who have since grown up in the United States, and completed their schooling in the United States. Under the DREAM Act, most students with good moral character who came to the United States at age 15 or younger at least five years before the date of the bill's enactment and who are currently under the age of 35 would qualify for conditional permanent resident status upon acceptance to college, graduation from a U.S. high school or being awarded a General Education Diploma (GED) in the United States. At the end of the conditional period, lawful permanent resident status would be granted if the student has maintained good moral character, avoided lengthy trips abroad and met at least one of the following criteria:

  1. Graduated from a two-year college or certain vocational colleges or studied for at least two years towards a Bachelor's Degree or higher degree; or

  2. Served in the U.S. Armed Forces for at least two years.

The DREAM Act would also repeal Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which currently discourages states from providing in-state tuition or other higher education benefits without regard to immigration status.

The DREAM Act was first introduced in 2001. Since that time, the Act has advanced in both the House and Senate but has never been enacted. However, it is believed that its chances for passage this year have increased because besides having bipartisan support, the bill also has the support of the leadership in both the House and the Senate and the support of the Obama Administration.

Additional information about any advancement of the DREAM Act in congress will be contained in our firm's future Immigration Updates when it becomes available.

TSA Implements Secure Flight Program

The Transportation Security Administration (TSA) recently announced the implementation of its Secure Flight program. Under this program, airlines will gather a passenger's full name, date of birth and gender when making an airline reservation to determine if the passenger is a match to the No Fly or Selectee List. By providing information data elements of gender and date of birth, the program will more effectively help prevent misidentification of passengers who have similar names to individuals on a Watch list. Additionally, under the program, the TSA will have the responsibility for matching this information against the Watch list instead of individual airlines. The program is currently limited to domestic flights. However, TSA indicated that beginning in late 2009, it will expand the function to international flights. The TSA stated that its goal is to review 100% of all passengers on domestic commercial flights by early 2010 and 100% of all international commercial flights by the end of 2010.

USCIS and ICE Remind Employers about H-1B "Cap Gap" Rules for Qualifying F-1 OPT Employees

The U.S. Citizenship and Immigration Services (USCIS) and Immigration and Custom Enforcement's (ICE) Student Exchange Visitor Program (SEVP) recently released guidance reminding employers about the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B classification) for an employment start date of October 1, 2009 under the Fiscal Year 2010 H-1B quota.

For F-1 students with Employment Authorization Documents (EAD) based upon post-completion Optional Practical Training (OPT) that expires between February 1 and April 1, 2009, these students will be able to remain in the United States at least until June 2, 2009 if their employers have filed an H-1B petition under the fiscal year 2010 H-1B quota requesting a change of status from F-1 to H-1B classification. However, during this time, these students will not be able to work in the United States. If the student's petition is selected in the H-1B quota, they will be able to remain in the United States until October 1, 2009 until their H-1B status becomes effective. However, again, they will not be able to work during this period.

For F-1 students whose EADs based upon post-completion OPT expire on or after April 1, 2009 and who have had an H-1B petition filed on their behalf subject to the Fiscal Year 2010 H-1B quota which requests a change of status from F-1 to H-1B classification, they will also be able to remain in the United States until June 2, 2009. However, in addition to being able to remain in the United States during this period, these students employment authorization will be automatically extended. If the student's petitions are selected in the H-1B random selection process and are ultimately approved, they will be able to remain in the United States and continue working through October 1, 2009 when their H-1B status becomes effective.

In order to document continuing employment eligibility on the Form I-9, the F-1 students should contact their schools to obtain updated SEVIS Forms I-20. After the forms have been updated, the forms with the expired EAD card will serve as a List A Number 4 document on the Form I-9. When the student's petition is selected in the H-1B quota and a receipt is issued, the student may then obtain another updated SEVIS Form I-20 and this new updated SEVIS Form I-20 with the EAD card and the H-1B receipt notice may then be used as a List A Number 4 Form I-9 document.

Additional information about the fiscal year 2010 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

DOL Releases Current Perm Processing Dates

The U.S. Department of Labor (DOL) recently released its current PERM processing dates. The DOL indicated that it is currently completing the initial review of PERM applications filed in July 2008. The DOL is currently reviewing PERM applications that were selected for an audit which were initially filed in September 2007.

Additional information about the DOL's backlog is contained in our firm's previous Immigration Updates dated March 9, 2009 and March 16, 2009.

USCIS Provides Guidance about New Requirements for TARP Recipients for Hiring H-1B Nonimmigrants

The USCIS recently provided guidance about the implementation of the Employ American Workers Act (EAWA) which was enacted as part of the American Recovery Reinvestment Act on February 17, 2009.

EAWA makes employers who have received funds through the Trouble Asset Relief Program (TARP) or under Section 13 of the Federal Reserve Act H-1B dependent employers. EAWA also makes the exemption for H-1B nonimmigrants who have either earned a Master's or higher degree or are offered a salary of $60,000 or more inapplicable to these institutions. A list of TARP recipients is available at www.treas.gov/initiatives/eesa/transactions.shtml, http://online.wsj.com/public/resources/documents/st_BANKMONEY_20081021.html or http://projects.nytimes.com/crediterisis/recipients/table. The Federal Reserve has not released a list of the Section 13 recipients. Additional information about EAWA is contained in our firm's previous Immigration Update dated February 16, 2009.

After EAWA was enacted, the U.S. Department of Labor (DOL) placed a notice on its website that this provision applied to all new employment on or after February 17, 2009 by institutions who have received TARP or Federal Reserve credit window funding. However, the USCIS has now provided additional guidance about when EAWA applies. USCIS stated that EAWA applies to any Labor Condition Application (LCA) and/or H-1B Petition filed on or after February 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. USCIS stated that EAWA also applies to new hires based on an H-1B petition approved before February 17, 2009 if the H-1B employee had not actually commenced employment before that date. The USCIS also stated that EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. Although the USCIS did not provide examples of other work-authorized categories, these could include employees employed by these institutions pursuant to Optional Practical Training or TN status, to name a few. The USCIS also stated that EAWA does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

The USCIS has modified its H-1B Data Collection Form to request information about whether an employer has received TARP funding. However, the USCIS has not modified the form to further request if the employer is subject to the additional EAWA requirements by petitioning for a specific Beneficiary. Therefore, TARP institutions that are filing H-1B petitions for beneficiaries who do not make the institution subject to the additional EAWA requirements should clearly explain how the filing of the petition on behalf of the specific beneficiary does not make them subject to the additional requirements. The USCIS has warned that TARP employers that are subject to the EAWA requirements and that do not properly attest on the LCA that they are H-1B dependent employers and have complied with the additional attestations required of H-1B dependant employers will have their H-1B petitions denied by the USCIS.

The additional EAWA requirements remain effective for employers who have received TARP funds through February 17, 2011. Neither EAWA nor the USCIS guidance clarifies whether an institution that repays the TARP funds prior to February 17, 2011 will still be subject to the additional EAWA requirements.

Federal Court Invalidates Illinois Law Prohibiting Illinois Employers from Participating in the E-Verify System

A Federal Court in Springfield, Illinois recently invalidated an amendment to the Illinois Right to Privacy Act, which prohibits Illinois employers from participating in the E-Verify System until certain additional qualifications have been met.

On August 13, 2007, Illinois amended the Illinois Right to Privacy Act to prohibit employers from enrolling in the E-Verify System until the Social Security Administration (SSA) and the Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative non-confirmation notices issued to employers within 3 days. At the present time, neither SSA nor DHS are able to make a determination on 99% of the tentative non-confirmation notices issued by the E-Verify System within 3 days. Therefore, the U.S. Department of Justice sued the State of Illinois to stop the Illinois Act from becoming effective on January 1, 2008. As part of the litigation, the State of Illinois and the U.S. Department of Justice entered into an agreement under which the State of Illinois would not enforce the amendment during the pendency of the litigation.

A Federal Court in Springfield, Illinois recently held that the Illinois act conflicts with the Federal statute implementing the E-Verify System. The Court determined that the U.S. Congress extended the E-Verify System as a voluntary program to all employers across the United States. The court held that the Illinois statute frustrated the U.S. Congress' purpose for extending the E-Verify System to all employers and that the State of Illinois cannot dictate to U.S. Congress the accuracy and speed standards that the E-Verify Program must meet. Therefore, the Court permanently enjoined the State of Illinois from enforcing what it determined to be an invalid act. Therefore, Illinois employers may again select to voluntarily use the E-Verify System knowing that their usage of the system will not conflict with state law.

DOS Releases April 2009 Visa Bulletin -- Very Little Advancement in Most of the Employment-Based Immigrant Visa Categories

The U.S. Department of State (DOS) recently released its April 2009 Visa Bulletin. The DOS has experienced a steady demand for the employment-based third preference (EB-3) category. As a result, the DOS has retrogressed the EB-3 World and the EB-3 India preference categories. In contrast, the DOS has neither advanced nor retrogressed the EB-2 categories for Indian and Chinese nationals. The DOS has also retrogressed the EB-3 Other Worker category. As demand for visa numbers in each of the employment-based categories increases, it is assumed that the DOS will have to issue a new cut-off date to slow, stop, or retrogress the categories to ensure that future demand is significantly reduced.

The following is a comparison of the employment-based immigrant visa categories since the beginning of the current retrogression:

 

Oct 2005

Dec 2007

Jun 2008

Feb 2009

Mar 2009

Apr 2009

EB-3 World

03/01/01

09/01/02

03/01/06

05/01/05

05/01/05

03/01/03

EB-2 China

05/01/00

01/01/03

04/01/04

01/01/05

02/15/05

02/15/05

EB-3 China

05/01/00

10/15/01

03/22/03

10/01/02

10/22/02

03/01/03

EB-2 India

11/01/99

01/01/02

04/01/04

01/01/04

02/15/04

02/15/04

EB-3 India

01/01/98

05/01/01

11/01/01

10/15/01

10/15/01

11/01/01

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

03/15/03

03/15/03

03/01/01

Additional information about the advancement of the employment-based immigrant visa categories will be contained in our firm's future Immigration Updates.

U.S. Consular Sections in India Adjust Exchange Rate

On March 6, 2009, all United States Consular Sections in India adjusted the consular exchange rate from Rs. 52 to the dollar to Rs. 55 to the dollar. This rate change is effective for all rupee-denominated costs of applying for visas and passports, including the nonimmigrant visa application fee paid at HDFC bank branches prior to the scheduling of visa appointments. The new application fee for nonimmigrant visas is Rs. 7,205 (equivalent to USD $131). Receipts issued by HDFC Bank prior to March 6, 2009 that reflect a payment of Rs. 6,812 will remain valid.

Passport Data Incorporated into the E-Verify Program

The USCIS has incorporated the DOS' passport data into the E-Verify program. The enhancement was added to reduce the incidences of mismatches among foreign born citizens. A previously conducted evaluation by the USCIS revealed that foreign-born citizens were more likely to receive mismatches, known as Tentative Non-confirmations (TNCs), than U.S.-born citizens. The USCIS states that passport number checking capability for citizens providing a U.S. passport as Form I-9, Employment Eligibility Verification, identification improves the program. If the DHS or the SSA is unable to immediately confirm a U.S. citizen's work eligibility, USCIS can now check DOS records prior to issuing a TNC. If citizenship information provided on the Form I-9 matches those records, E-Verify will confirm the individual's work authorization. Without the enhancement, the system would have issued a TNC, prompting a potentially "authorized" worker to resolve the mismatch issue. In addition, foreign-born U.S. citizens who ultimately receive TNCs may now call the USCIS directly rather than visiting an SSA office to resolve their cases.

Agriprocessors, Inc.'s Former Supervisor Sentenced to Prison

Martin De La Rosa-Loera, a former supervisor at Agriprocessors Inc., in Postville, Iowa, was sentenced Wednesday to 23 months in federal prison for aiding and abetting in harboring illegal aliens. The U.S. District Court Chief Judge increased Mr. De La Rosa-Loera's sentence from the sentencing guidelines because he held a supervisory position, and also because 100 or more illegal aliens were harbored. According to information presented in court, Mr. De La Rosa-Loera became a permanent resident in 2002 and later became a naturalized U.S. citizen. Mr. De La Rosa-Loera supervised approximately 70 employees at Agriprocessors. In May 2007, he told his employees that they would need to change their Social Security numbers and names in order to continue working at the company. He also told them that would have to resume work at a lower wage of $6.25 per hour. Between 100 and 200 workers walked off the job in protest after this occurred. In April 2008, Mr. De La Rosa-Loera received a list of several employees who were to be terminated. Although Mr. De La Rosa-Loera was told the Social Security numbers of these particular employees were not valid, Mr. De La Rosa-Loera's supervisors told him six of the most valuable workers could stay if they got new identification documents. Mr. De La Rosa-Loera directed a leadperson under his supervision to get new identification documents, and directed the leadperson to tell five other employees on the list to do the same. The company's human resources director later determined the employees' new fake documents were not valid. Nevertheless, the six employees were allowed to continue working at Agriprocessors under their old documents. Subsequently, in October 2007, the ICE began investigating Agriprocessors. The investigation is ongoing.

For more information about this or any other immigration law topic, please contact Bob White, at 847.734.8811 or via email at rwhite@masudafunai.com. Weekly Immigration Updates are provided in the Legal Updates section of our Immigration Practice Area page at http://www.masudafunai.com/articles.aspx?Type=109.