Business Immigration Monthly Update - September 2009

Date: 9/1/2009
 Business Immigration Monthy - September

Federal Contractor E-Verify Requirement to Become Effective on September 8, 2009

The final rule amending the Federal Acquisition Regulation (FAR) to require certain federal agency contracts and sub-contracts that are performed within the United States to include a provision mandating the use of the E-Verify program will become effective on September 8, 2009. This final regulation was initially released on November 14, 2008 but its implementation was postponed numerous times due to litigation. However, the litigation was recently dismissed by a district court and it is assumed that the court will not stay the implementation of the regulation while the decision is appealed.

After the dismissal of the litigation, the Department of Homeland Security (DHS) issued a press release reminding certain federal contractors and sub-contractors that they will be required to use the E-Verify system to verify their employees' eligibility to work in the United States effective September 8, 2009. However, this press release is inaccurate. Only certain federal contractors and sub-contractors who are awarded contracts on or after this date that contain the E-Verify requirement will be required to verify their new employees' and certain existing employees' eligibility to work in the United States. The rule requires all federal solicitations and contracts over $100,000 lasting for a period of 120 days or more to include a provision that the contractors:

  1. Enroll in E-Verify (if not already enrolled.)
  2. Use E-Verify for all new hires in the United States, regardless whether they perform services on the contract. Institutions of higher education, state or local government, the government of a federally recognized Indian tribe or a surety performing under a takeover agreement entered into with a federal agency pursuant to a performance bond may choose to verify only new hires assigned to the contract instead of all new hires.
  3. Use E-Verify for all workers assigned to the contract who are directly performing work under the contract. Employees are not considered to be assigned to the contract if they normally provide support work (such as indirect or overhead functions) and do not perform any substantial duties applicable to the contract. Contractors are also not required to re-verify workers who have been previously verified by the contractor using E-Verify; workers with active security clearance of "confidential," "secret" or "top-secret;" or workers for whom background investigations have been completed and have been issued credentials pursuant to the Homeland Security Presidential Directive (HSPD-12).
  4. Include a provision in sub-contracts for commercial or non-commercial services and construction that are over $3,000 and last for a period of more than 30 days requiring the use of E-Verify by the sub-contractors.

Contractors and sub-contractors covered by the regulation may also opt to re-verify all existing workers hired after November 6, 1986 whether or not they are assigned to the contract. This provision only applies to contractors and sub-contractors who are subject to the provisions of the regulation. If a contractor or sub-contractor elects this option, it must notify DHS and initiate verification within 180 days of the notice to DHS or enrollment in E-Verify.

Certain federal contracts are exempt from the requirement, including those for

  1. Commercially available off-the-shelf (COTS) items.
  2. Items that (but for minor modifications) would be COTS items.
  3. Agricultural products shipped as bulk cargo that would otherwise been categorized as COTS.
  4. Commercial services that are part of the purchase of a COTS item, performed by the COTS provider and normally provided for that COTS item.

The contracting officer will determine if a contract qualifies for one of the exemptions.

The following is a chart of the timeframes for enrollment in and use of E-Verify by federal contractors and sub-contractors that are not exempt from the E-Verify requirement:

Contractors and Sub-contractors Not Enrolled in E-Verify at Time of Contract Award

Timeframe

Start Point

Required Action

Within 30 days

Contract award

Enroll in E-Verify

Within 90 days

Enrollment in E-Verify

Verification of all new workers within 3 days of hire

Within 90 days

Enrollment in E-Verify

Verification of workers assigned to the contract

Within 30 days (if later than 90-day timeframe directly above)

Workers are newly-assigned to the contract

Verification of workers newly-assigned to the contract

Within 180 days

Contract award

Optional to reverify all existing workers (not just those assigned to the contract)


Contractors and Sub-contractors Enrolled in E-Verify at Time of Contract Award

Timeframe

Start Point

Required Action

Immediately (if enrolled in E-Verify 90 days or more)

Contract award

Verification of new workers within 3 days of hire

Within 90 days (if enrolled in E-Verify less than 90 days)

Enrollment in E-Verify

Verification of new workers within 3 days of hire

Within 90 days

Contract award

Verification of workers assigned to the contract

Within 30 days (if later than 90-day timeframe directly above)

Workers are newly-assigned to the contract

Verification of workers newly-assigned to the contract

Within 180 days

Notification to E-Verify Operations

Optional to reverify all existing workers (not just those assigned to the contract)

All Contractors

Timeframe

Start Point

Required Action

Contracts with performance terms of less than 120 days

n/a

Not required to enroll in E-Verify

Sub-contracts with performance terms less than 30 days

n/a

Not required to enroll in E-Verify

The DHS or the Social Security Administration (SSA) can terminate a federal contractor or sub-contractor from the E-Verify system if the contractor violates the terms of the Memorandum of Understanding (MOU) that it is required to sign in order to use the E-Verify program as a federal contractor or sub-contractor. This MOU differs significantly from the MOU for employers that are not subject to this rule and who elect to use the E-Verify program. For example, one of the major differences involves the fact that federal contractors and sub-contractors are required to E-Verify current workers assigned to the contract whereas E-Verify employers who are not subject to this rule can not use E-Verify to confirm the employment eligibility of current workers. The MOU for federal contractors subject to this rule outlines the procedure to verify existing workers assigned to the contract and it appears that most employers will have to complete a new Form I-9 process for these workers prior to completing the E-Verify process to verify that the information/documentation that the employer has received meets all of the E-Verify requirements. If DHS and/or SSA terminate an effective federal contractor from the E-Verify system for violating the terms of the MOU, the agency must refer the contractor to a suspension or debarment official for possible suspension or debarment from the federal contracting program.

Finally, DHS has reminded employers that the use of the E-Verify system by any employer does not prevent DHS from conducting Form I-9 compliance inspections or from conducting any other enforcement activity.

Additional information about the implementation of the FAR E-Verify final rule will be contained in our firm's future Immigration Updates when it becomes available.

USCIS Updates Form I-9

The U.S. Citizenship and Immigration and Services (USCIS) recently updated its Form I-9. Earlier this year, the USCIS implemented substantive changes to the Form I-9 Employment Eligibility Verification. However, this revised form expired at the end of June 2009. The new Form does not make any changes to the form other than updating the issuance date and the expiration date. However, the USCIS is encouraging employers to use its most recent version of the Form which has a revision date of August 7, 2009. However, the USCIS stated that the Form with the revision date of February 2, 2009 is also acceptable. Forms I-9 with revision dates earlier than February 2, 2009 are no longer acceptable.

USCIS Amends Successor-in-Interest Applicability in the Form I-140 Process

The USCIS recently issued a Memorandum amending its Adjudicator's Field Manual to provide new guidance on factors for making successor-in-interest determinations in the adjudication of Immigrant Petitions for Alien Worker (Form I-140).

Prior to the issuance of this guidance, the USCIS Texas Service Center recently indicated that a successor company would only be considered to a successor-in-interest if the successor company assumes all of the rights, duties, obligations and assets of the original employer and continues to operate the same business as the original employer.

The USCIS stated that it is issuing the updated field guidance to acknowledge the fact that business practices have changed, especially of the areas of acquisitions, mergers and transfers of assets and liabilities between entities. The USCIS stated that for all new and currently pending Forms I-140 petitions, the following three factors should be considered in determining whether a valid successor-in-interest relationship exists:

  1. The job opportunity offered by the successor must be the same as the job opportunity originally offered on a labor certification;
  2. The successor bears the burden of proof to establish eligibility of all respects, such as evidence of the predecessor's ability to pay the offered wage as of the date of the filing of the labor certification with the U.S. Department of Labor (DOL).
  3. For a valid successor-in-interest relationship to exist between the successor and predecessor that filed the labor certification, the petitioner must describe and document the transfer and assumption of the ownership of the predecessor by the successor.

The USCIS reminded its officers that their can be instances were a valid successor relationship exist even if the successor entity has not assumed all the assets, rights, obligations and liabilities of its predecessor entity.

The USCIS stated that this new guidance is not applicable for Form I-140 petitions that do not require a labor certification, including EB-1 multi-national managers or executives. These employers must file a new Form I-140 to establish the employee's continuing eligibility for the classification.

The USCIS also reaffirmed that a successor entity need not file a new petition on an employee's behalf if the employee qualifies for the "green card" portability provisions contained in the American Competitiveness in the Twenty-First Century Act (AC21).

H-1B and H-2B Quota for Fiscal Year 2010 Update

The U.S. Citizenship and Immigration Services (USCIS) recently announced an update on the status of the FY 2010 (October 1, 2009 to September 30, 2010) H-1B Quota and the first half of FY 2010 H-2B Quota. H-1B visas continue to be available. As of August 28, 2009, out of the total limit of 65,000 visas per fiscal year, 45,100 qualifying petitions have been filed. The Master's or higher Degree exemption of 20,000 has tentatively been met. However, USCIS has indicated that it continues to accept H-1B petition filings under both the regular H-1B quota and the Master's or higher Degree exemption quota and will continue to do so until the quotas have been met. The USCIS Vermont Service Center recently indicated that it is currently receiving approximately 1,000 H-1B quota cases per month.

USCIS began accepting H-2B petitions for the first half of FY 2010 on June 1, 2009. As of August 21, 2009, 15, 164 petitions have been received out of a target number established by the USCIS of 47,000. This higher target number has been established by the USCIS to ensure that the first half of FY 2010 H-2B quota of 33,000 is completely met. Currently 11,196 have already been approved and 3,968 are awaiting adjudication.

DOL Updates i-Cert System

The U.S. Department of Labor (DOL) recently announced that it is upgrading its i-Cert system. Since July 1, 2009, employers have had to process Labor Condition Applications (LCA) through the i-Cert system.

The DOL stated that the key features in the update include:

  1. The ability to withdraw certified LCAs on-line as long as the LCA was initially filed through the i-Cert system.
  2. The ability for main account holders to grant account permission to their associate accounts.
  3. The ability of associate account holders to create profiles for frequently used company/attorney information and can use those profiles to pre-fill applicable sections on the LCA form.
  4. The ability to copy the Attorney/Agent's e-mail address with certification and denial reasons that have previously only been sent to the employer's main contact address.
  5. Enhanced and updated user guide detailing more application features.
  6. Usability and navigation enhancements to the system.

The upgrade does not change the amount of time that is required to be out of the system before logging back into the system if a user is timed out of the system. Unlike the current PERM system where a user who is timed out of the system can immediately re-access the system, i-Cert requires users to remain out of the system for 15 minutes before the system will time-out and allow the user back into the system. This 15 minutes delay has caused disruption within attorneys' offices and employers' offices because it has caused an unnecessary increase in the amount of time for which it takes to process some LCAs when users are inexplicably timed out of the system. To date, the DOL has not indicated that it will be modifying this time-out delay.

Additional information about the further developments with the DOL's i-Cert system will be contained in our firm's future Immigration Updates when it becomes available.

LEGISLATIVE UPDATE: Obama Administration Delays Consideration of Comprehensive Immigration Reform Until at Least Next Year

President Obama recently indicated that it is highly unlikely that Congress will consider immigration reform legislation before next year. President Obama previously indicated that immigration reform was the third priority for his administration. However, because it is assumed that health care reform will consume most of Congress' time for the remainder of the year, the Obama Administration indicated that it does not believe that immigration reform legislation will be considered by Congress until next year. However, the administration encouraged Congress to at least introduce a comprehensive immigration reform bill in both the House and the Senate by the end of this year so that it can be considered next year.

In order to reaffirm the importance of the continued need for immigration reform, the administration recently held a summit at the White House with more than 100 interested community based organizations, unions, companies and advocacy organizations to begin to solicit their input about the major issues that need to be addressed by comprehensive immigration reform legislation.

Additional information about the development and progress of any immigration reform legislation will be contained in our firm's future Immigration Updates when it becomes available.

DHS Proposes to Rescind Previous "No Match" Letter Regulation

The U.S. Department of Homeland Security (DHS) recently proposed a regulation to rescind its previous final regulation which would make the receipt of a "No Match" letter from the Social Security Administration (SSA) constructive knowledge that the employer may have hired a foreign national who is not authorized to work in the United States. The previous regulation also established a "safe harbor" procedure for an employer to reduce its liability upon receipt of such a letter. After the previous regulation was introduced, a lawsuit was filed against the DHS to prevent it from implementing the previous regulation. A court granted a temporary restraining order against the implementation of the previous regulation which is still effective today.

DHS indicated that it is releasing the current proposed regulation because it has determined that a more appropriate utilization of DHS resources would be to focus enforcement/community outreach efforts on increased employer compliance through the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system, Immigration and Customs Enforcement's (ICE) Mutual Agreement Between Government and Employers (Image) and other programs.

Although this is a proposed regulation, the Obama Administration has indicated that it would like to finalize the regulation to reinstate the provisions of the employment eligibility verification regulation as they existed before the previous regulation was finalized. However, a bill has passed the Senate which would require DHS to implement the previous regulation and thus nullify this proposed regulation. Although this bill has passed the Senate, it still has to be reconciled with another bill that did not contain the provision which passed the House. It is assumed that the reconciliation process of the two bills will occur in September 2009.

Additional information about the rescission or implementation of the previous "No Match" letter rule will be contained in our firm's future Immigration Updates when it becomes available.

September 2009 Visa Bulletin Released – EB-2 Category Advances for Indian and Chinese Nationals

The U.S. Department of State (DOS) recently released its Visa Bulletin for September 2009. As previously indicated by the DOS, the EB-3 category remains Unavailable and will continue to remain Unavailable at least until the beginning of the government's next fiscal year on October 1, 2009. In July of 2009, the DOS severely retrogressed the EB-2 category for Indian and Chinese nationals. However, the current Bulletin shows advancement in both categories back to pre-July dates. The DOS has previously warned that the EB-2 category may become Unavailable for Indian and Chinese nationals for the remainder of the government's fiscal year. However, with the advancement of the categories this month, it appears that the DOS has determined that there may be sufficient availability so that the DOS does not have to make the categories completely Unavailable until the beginning of the government's next fiscal year.

The following is an overview of how the various employment-based preference categories have either progressed or retrogressed since the beginning of the current retrogression in October 2005:

Oct 2005

Dec 2007

Jun 2008

June 2009

July 2009

Aug 2009

Sept 2009

EB-3 World

03/01/01

09/01/02

03/01/06

U

U

U

U

EB-2 China

05/01/00

01/01/03

04/01/04

2/15/05

01/01/00

10/01/03

01/08/05

EB-3 China

05/01/00

10/15/01

03/22/03

U

U

U

U

EB-2 India

11/01/99

01/01/02

04/01/04

01/01/00

01/01/00

10/01/03

01/08/05

EB-3 India

01/01/98

05/01/01

11/01/01

U

U

U

U

EB-3 Other Workers

10/01/00

10/01/01

01/01/03

U

U

U

U

Additional information about the advancement of the employment-based immigrant visa priority dates will be contained in our firm's future Immigration Updates when they become available. The current Visa Bullet is available at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.

Expansion of CBP's Global Entry Program

The Department of Homeland Security's (DHS) Global Entry program has been introduced in 13 additional airports. The Global Entry program is an "international trusted traveler program" that facilitates entry into the U.S. for U.S. citizens, U.S. nationals (residents of American Samoa and Swain's Island (AS)), U.S. lawful permanent residents and citizens of other certain countries. Travelers wishing to apply must hold a machine-readable passport, pay a $100 fee and pass a background check including an in-person interview. Participation in the program is for five years and allows travelers to use automated kiosks to clear U.S. Customs and Border Patrol (CBP) passport control and access to a separate exit lane out of the CBP area.

For a list of current airports participating in the program, as well as online application links, instructions and pamphlets please visit: http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/.

ICE Charges 50 Individuals with Running Sham Marriage Ring

Fifty individuals from the Cincinnati area were indicted and are currently being located and arrested by ICE on charges of entering into fraudulent marriages to obtain immigration benefits. The maximum penalties faced are fines of up to $250,000, three years of supervised release, and five years imprisonment. Those who are unauthorized to remain in the U.S. will likely face deportation charges.

USCIS Has New Director

On August 12, 2009, Alejandro Mayorkas was sworn in as USCIS Director. Mayorkas was nominated by President Obama in April and confirmed by the Senate on August 7. As Director, Mayorkas will be in charge of the USCIS, an agency of 18,000 employees under the jurisdiction of the Department of Homeland Security, which adjudicates immigration-related applications and petitions. For more information on Mayorkas, please see: http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/mayorkas_12aug09.pdf.

Company in Houston Fined by ICE

Shipley Do-Nuts and Supply Company was fined by ICE in the amount of $250,000 including an order to forfeit $1.334 Million. In January 2008, ICE conducted a criminal investigation of the company reviewing I-9 Forms and the Social Security Administration (SSA) No-Match letters, issued when an employee's reported social security number does not match the SSA's records. The fines were in addition to the criminal conviction of the company's president and several supervisors for hiring and continuing to hire undocumented workers.

Immigration Statistics for 2008 Released

The DHS's Office of Immigration Statistics released its "2008 Yearbook of Immigration Statistics" which contains current and historical information about legal permanent residents, asylees and refugees, citizenship applicants, nonimmigrants, and enforcement actions. This publication has been released annually since 1890 and provides interesting data on immigration statistics and trends. The current publication and yearbooks from 1996 to the present are available at the DHS's website, http://www.dhs.gov/files/statistics/publications/yearbook.shtm.

New USCIS Website to be Launched

The U.S. Citizenship and Immigration Services (USCIS) recently announced that it would be updating its website to improve its design and functionality. The USCIS will offer features such as the ability to receive case status updates via email, text messaging and online. The new website is currently under development, but will be unveiled on September 22, 2009. The new website will feature the following characteristics:

  • A customer-centric home page that provides applicants with a "one-stop shop" of immigration services information.
  • Simplified navigation and improved search capability.
  • Enhanced customer service tools including expanded Case Status Online with both email and text functionality.
  • Information that is written clearly and meets the needs of customers.

In order to help customers prepare for the launch of the redesigned website, the USCIS is providing a mock up of the new home page reflecting the new changes which are accessible on its website at www.uscis.gov.

Emergency Travelers Required to Carry Machine-Readable Passports

The laws governing the Visa Waiver Program (VWP) require that travelers to the United States must carry a machine-readable electronic passport (e-passport) if that passport was issued on/after October 26, 2006. The U.S. Department of State (DOS) recently announced that the rule does not provide an exception for temporary and emergency passports. Consequently, all emergency or temporary passports must be e-Passports to be eligible for travel to the United States, including transit through the United States, under the VWP. The DOS stated that for those who are unable to obtain e-passports must make an attempt to obtain a U.S. The U.S. Embassies and Consulates abroad will try to accommodate emergency visa appointments. The U.S. Customs and Border Protection (USCBP), has been authorized to grant discretionary waivers of the e-passport requirement to those VWP travelers who were unable to obtain an e-passport or visa prior to their travel. USCBP can also exercise its discretion with respect to any fines levied on air carriers for boarding travelers with non-e-passports.

USCIS Reopens H-2B Quota for Fiscal Year 2009

On August 6, 2009, the USCIS announced the reopening of the fiscal year 2009 H-2B petition filing period and began immediately accepting new H-2B petitions. Earlier in the year, on January 7, 2009, the USCIS had announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000. However, the U.S. Department of State (DOS) received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are currently approximately 25,000 visas that may go unused, as they have not been approved. As a result of the low visa issuance rate, the USCIS has reopened the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

The standard adjudication period for H-2B petitions is 60 days. The USCIS is encouraging employers to file as soon as possible and request premium processing service to allow expedited processing of the application. The USCIS will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year deadline of Sept. 30, 2009, the USCIS cannot guarantee approval of any H-2B petition on or before Sept. 30, 2009.

Petitions must include a valid temporary labor certification issued by the Department of Labor with the petition, which indicates an employment start date beginning in fiscal year 2009 and covers the requested employment period. Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap and are subject to all eligibility requirements for fiscal year 2010 H-2B filings, including the requirement that the start date listed on the petition be the same as the start date authorized on the temporary labor certification.