NEWS

Posted August 28, 2009

E-Verify Update

As some of you may be aware, on August 25 a federal judge for the U.S. District Court for the District of Maryland denied the U.S. Chamber of Commerce's challenge to an amendment to the Federal Appropriation Regulation.  The amendment, which requires that participating government contractors (and downstream subcontractors) initiate E-Verify for new and certain existing employees.  This requirement was originally mandated by an Executive Order by President Bush, and has been subsequently adopted by the Obama Administration.  The lawsuit by the Chamber of Commerce resulted in a temporary stay of the amendment. That stay was lifted by this week’s decision, and as a result, the amendment will go into effect on September 8, 2009.

Employer Requirements as Federal Contractors:

Employers who have been enrolled in E-Verify for more than 90 days: These employers are required to continue to initiate verification of newly hired employees within three business days of their start date, but have 90 days from the effective contract/subcontract award date to begin using E-Verify for each current employee who is performing work upon an existing federal contract.

Employers who not already participating in E-Verify: The contractor and any covered subcontractors will be required to enroll in E-Verify within 30 calendar days of the contract/subcontract award date. New enrollees will be provided an additional 90 days to enroll and initiate verification queries for existing employees assigned to fulfill a federal contract and to begin using the system to verify all newly hired employees.

If your company is a Federal contractor or subcontractor, you must review these regulations to determine whether you are required to comply. A copy of the Court decision is available at http://www.aila.org/Content/default.aspx?docid=29882. The cite to the regulations is 73 Fed. Reg. 67,651 (Nov. 14, 2008), which may be accessed at http://tinyurl.com/napb6w.     

What the Future May Hold

Universal participation in E-Verify is probably inevitable, given the enthusiasm of Congress and the Department of Homeland Security for the E-Verify program.  Many states are already mandating participation in E-Verify to various degrees.  Given these realities, I advise you to give serious consideration to participating in E-Verify, even if you are not a Federal Contractor, if you are not participating already.

For additional information or if you’d like to discuss the pros and cons of E-Verify participation in general, please don’t hesitate to contact me.

Posted December 28 , 2008

Significant Additions to US-VISIT

USCIS announced on December 18 that it is expanding the classes of foreign nationals subject to US-VISIT to include Permanent Residents, Canadian citizens who receive a Form I-94 at inspection, and aliens paroled into the U.S., including, presumably, those traveling on advance parole.  The rule, which becomes effective on January 18, 2009, requires the following individuals to register with US-VISIT upon each entry to the United States, in addition to those nonimmigrants who are already subject to the requirement:

•  Lawful Permanent Residents (LPRs) 
• Aliens seeking admission on immigrant visas
• Refugees and asylees
• Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility
• Aliens paroled into the United States
• Aliens applying for admission under the Guam Visa Waiver Program.

The US-VISIT program was established in 2003 to verify the identities and travel documents of visitors. US-VISIT automates this verification by comparing biometric identifiers, and by comparing biometric identifiers with information drawn from intelligence and law enforcement watch lists and databases. Visitors subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival at, or departure from, the United States. Currently, people entering the United States pursuant to a nonimmigrant visa, or those traveling without a visa as part of the Visa Waiver Program, are subject to US-VISIT requirements, with certain limited exceptions. 

DHS says that the expansion of this requirement to include permanent residents will help to combat document fraud, and at some ports of entry will actually decrease time spent processing an arriving individual’s entry to the United States.

The rule appears in today’s Federal Register.  You can access the rule at http://edocket.access.gpo.gov/2008/pdf/E8-30095.pdf.

New Form I-9

The Department of Homeland Security this week published a final rule again amending Form I-9.  The rule eliminates from the list of acceptable documents several documents which are no longer issued by DHS, and adds certain foreign passports and the U.S. passport card to List A.  It also makes some changes to the form instructions.

Employers must use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization beginning February 2, 2009.

The new Form I-9 will eventually be available for download at http://www.uscis.gov/i-9.  You can view the final rule at http://edocket.access.gpo.gov/2008/pdf/E8-29874.pdf. 

ESTA - A Friendly Reminder

Just a reminder that the Department of Homeland Security’s pre-authorization program for Visa Waiver travelers, known as ESTA (Electronic System for Travel Authorization), becomes mandatory on January 12, 2009.  For additional information and to use ESTA, visit  https://esta.cbp.dhs.gov.

Posted September 19, 2008

FY2010 Diversity Visa Lottery Entry Dates Announced

The U.S. Department of State has just released the entry dates for entering the Fiscal Year 2010 Diversity Visa Lottery.  Section 203(c) of the Immigration & Nationality Act provides a maximum of up to 55,000 Diversity Visas (DV) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.  Winning the lottery allows foreign nationals to obtain permanent residence (“green cards”) in the United States. Foreign nationals born in certain countries, including, but not limited to, Canada, China, India, Mexico, Russia, Philippines, and the United Kingdom, are not eligible to enter the lottery.  If eligible, an applicant must complete an electronic application, submit a photo, and be able to document at least a high school education or two years of work experience.

The DV-2010 Lottery online entry begins at Noon EDT on October 2, 2008, and ends at Noon EST on December 1, 2008.  Instructions for this year are not yet available, but may be accessed at http://travel.state.gov/visa/immigrants/types/types_1318.html as soon as they are released.   

Applicants should file their own applications.  There is no charge to download and complete the Electronic Diversity Visa Entry Form, and paying a fee to anyone to complete the application will not increase an applicant’s chance of success.  

I urge anyone who is eligible to apply for the visa lottery.  Please feel free to forward this email to any interested party.  For additional information, please don’t hesitate to contact me.  

Posted September 3, 2008

DHS’s ESTA Program

As promised earlier this summer, the Department of Homeland Security has launched its pre-authorization program for Visa Waiver travelers, known as ESTA (Electronic System for Travel Authorization).  Effective August 1, Visa Waiver travelers may request pre-authorization to travel to the United States.  The program essentially involves completing a Form I-94W online, and travelers will immediately receive a “yea” or “nay.”  A denial will require a traveler to obtain a visa at a U.S. consulate before traveling to the United States.

The program will become mandatory on January 12, 2009.   For additional information and to use ESTA, visit  https://esta.cbp.dhs.gov.

Ten Fingerprints Now Required for Visas

The Department of State has published a rule which requires that nonimmigrant visa applicants provide a scan of all ten fingerprints when they appear for interview at a U.S. consulate. Exceptions to the rule include applicants under the age of 14 and over the age of 79.

For additional information, please see
http://edocket.access.gpo.gov/2008/pdf/E8-19316.pdf.

New Passport Card is Acceptable Form I-9 Document

USCIS announced last week that the new U.S. Passport Card, which can be used by U.S. citizens to facilitate land and sea travel between the U.S., Canada, Mexico and the Caribbean islands, is an acceptable List A document for Form I-9.  

For additional information and an example of the passport card, please visit http://travel.state.gov/passport/ppt_card/ppt_card_3926.html.  
A copy of the USCIS Press Release is available at http://www.uscis.gov ; click on “For Employers.”

 New Naturalization Test

USCIS has begun to publicize the redesign of the test the agency gives to applicants for naturalization to U.S. citizenship.  The test will be required of all applicants who file for naturalization on or after October 1, 2008.  Applicants who filed an application prior to October 1, 2008, but who are not interviewed until after October 1,  will be given a choice between the old and the new tests.  The new test is similar to the old test in format, but many of the questions asked in the civics test have changed.

For additional information and study materials, please visit http://www.uscis.gov/naturalization, and click on “Redesigned Naturalization Test” on the right side of the page.

USCIS Establishes Genealogy Program

Admittedly, this has nothing to do with business immigration, but I thought it was interesting.  CIS has recently implemented a new program for requesting records for genealogy purposes. Previously, USCIS required individuals seeking immigration records of their ancestors to file a FOIA request, which took forever and also increased the wait for non-genealogy requests.  Additional information and request forms are available at http://www.uscis.gov/genealogy.

Posted: June 27, 2008

New Form I-9 Released

U.S. Citizenship and Immigration Services (USCIS) has released a new Form I-9, dated June 16, 2008.  While the content of the form has not changed since the 2007 version, the date of the form and the OMB expiration date have been updated.  Please note that previous editions of the form are not acceptable; all employers MUST begin using the June 2008 form.  

The form is available for download at http://www.uscis.gov/i-9 .
We advise all employers to check this site regularly to be sure they are using the current version of the form.

New interim final rule for entering the U.S. under Visa Waiver Program

The Department of Homeland Security (DHS) plans to implement a new rule on or before January 12, 2009 which will require persons traveling to the United States under the Visa Waiver Program (VWP) to electronically submit the information that they normally handwrite on Form I-94W (i.e., full name, date of birth, country of citizenship).  This will involve applying for prior approval through the Electronic System for Travel Authorization (ESTA) program.  This electronic data will be reviewed by U.S. Customs and Border Protection (CBP) officers prior to a traveler boarding an airplane or ship.  DHS believes that by automating the I-94W process and establishing a system to provide VWP traveler data in advance of travel, CBP will be able to determine the eligibility of citizens and eligible nationals from VWP countries to travel to the United States.  DHS also believes that if such travel poses a law enforcement or security risk, CBP can identify persons of potential interest before they depart for the United States, thereby increasing security and reducing traveler delays upon arrival at U.S. ports of entry.  

On August 1, this program will become voluntary; it will become mandatory on January 12, 2009.  Once the program is fully operational, the current I-94W paper version will be eliminated.  For additional information, please see http://www.dhs.gov/xnews/releases/pr_1212498186436.shtm.

Summer Travel – Pack Your Sunscreen AND Documentary Proof of Citizenship

U.S. Customs & Border Protection (CBP) officials remind travelers that merely making an oral declaration of citizenship at the border is no longer sufficient to enter the United States.  Please be aware that when traveling, you must provide documents to gain entry into the United States (i.e., official passports, passport cards, copies of birth certificates along with government-issued photo identification, enhanced driver’s licenses or NEXUS or FAST cards).  While the new rules have been in effect since January 31, 2008, CBP officers are explaining the requirements to those who do not present the proper documentation, and exercising discretion about whom to admit to the U.S. without the required documentation.  For additional information concerning current documentary requirements for entering the United States, please visit http://www.dhs.gov/xtrvlsec/crossingborders/.

Proposal to Increase Periods of Stay for TN Workers from Canada or Mexico

USCIS recently released a Notice of Proposed Rulemaking which, when finalized, will allow Trade-NAFTA (TN) professional workers from Canada and Mexico and their dependents to remain in the United States for three years instead of one year, as the rules currently allow.  The rule will allow extensions of stay to be granted in three-year increments as well.  This change is expected to ease administrative burdens and costs for TN nonimmigrants as well as for their U.S. employers.  Please note that this is not yet a final rule, and until it is, TN nonimmigrants and their dependents are admitted for only one year. We will advise you if and when the rule becomes final.

Posted: May 2 , 2008

F-1 Optional Practical Training Regulations

The Department of Homeland Security (DHS) recently published a rule which extends Optional Practical Training (OPT) for some categories of F-1 students.  The interim final rule published on April 8 allows F-1 students who hold U.S. degrees in science, technology, engineering or mathematics (STEM), currently in the initial 12 month period of OPT,  to apply for an extension of 17 months of OPT.  The one catch is that the employer must be enrolled in the E-Verify program, an internet-based system developed by DHS in conjunction with the Social Security Administration to allow employers to verify the employment eligibility of new hires.  So while E-Verify is a voluntary program, this rule is, in part, an effort to increase participation in the program so that companies can allow recent foreign graduates to obtain the additional OPT authorization.  Companies that do not participate in E-Verify, and thus cannot offer the OPT extension, may find themselves unable to attract suitable candidates.  For additional information about E-Verify, please consult www.dhs.gov/everify  or contact me.

H-1B “Cap Gap” Relief Provision

One problem that many F-1 students have faced in recent years is a gap between the end of their F-1 status or OPT and the start of H-1B status on October 1.  Such a gap has resulted in students having to cease work and return to their home countries, unable to return to the U.S. until October.  These individuals will get relief from this H-1B “cap gap” as the result of a provision of the same rule mentioned above.   Under the provision, students who have timely filed a cap-subject H-1B petition for the next fiscal year, whose F-1 status will expire before October 1, are automatically granted an extension of their F-1 status and their work authorization until October 1.  If the H-1B petition is denied, F-1 status and work authorization will terminate.  For additional information about this “cap gap” rule, please contact me.

Visa Waiver Program – New Additions

As you may already know, nationals of 27 countries are allowed to travel to the U.S. without a visa for short-term visits (90 days or less) under the Visa Waiver Program (“VWP”).  This includes most western European countries as well as other nations with which the U.S. has agreements (i.e., Japan, Australia, Singapore, and others).  Several countries have signed Memoranda of Understanding with the U.S. to participate in the VWP:  South Korea, Czech Republic, Estonia, Latvia, Slovakia, Hungary, Lithuania and Malta.  It is expected that nationals of these countries will be permitted to visit the U.S. under the VWP within the coming year.  For additional information, please contact me.

New Visa Form

The Department of State (DOS) this week announced that it will be phasing out its current Visa Application Form DS-156 in favor of a new Form DS-160, which will be completed and signed electronically.   The completed Form DS-160 will be submitted electronically to the appropriate consular post.  The applicant will be matched to his or her DS-160 through submission of biometrics – photos, passports, and fingerscans.  Form DS-160 does not yet appear to be available, and Form DS-156 will be accepted until further notice.  DOS has not provided a date by which it will completely phase out Form DS-156.

New Medical Form

DHS announced on April 29 that it has released a new medical examination form, Form I-693, which is used by applicants for permanent residence.  The most recent version of Form I-693, dated April 2, 2008, is the only version of the form that will be accepted after May 1, 2008.  If you or your employees have medical examinations scheduled, they should be sure that they have the most recent version of Form I-693.  A separate vaccination supplement is no longer required, as the new Form I-693 contains vaccination information. The current Form I-693 is available for download at www.uscis.gov/i-693 . 

Posted: April 15 , 2008

News brief — H-1B Lottery Conducted

This year’s H-1B filing season has come and gone, and USCIS is presently wading through the 163,000 petitions that were received in the first week of April.   Of those, more than 31,000 were designated as cases that would qualify for the Master’s degree exemption.  On April 14, USCIS conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.  USCIS conducted two random selections, first on petitions qualifying for the 20,000 "master's or higher degree" (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.

USCIS announced today that petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fees to petitioners or their authorized representatives.  The total adjudication process is expected to take approximately eight to ten weeks.  For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period began April 14, the day of the random selection process.

USCIS has also "wait-listed" some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY 2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status.  USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

Please contact me if you have any questions concerning the H-1B process.

Posted: April 4 , 2008

News brief — Extension of OPT to 29 months

USCIS today announced an interim final rule which will allow the extension of the Optional Practical Training (OPT) period for students in F-1 visa status under certain circumstances.  The rule also extends OPT and employment authorization for F-1 students with pending cap-subject H-1B petitions, whose status will expire before they can begin working pursuant to an approved H-1B petition.

As with so many immigration regulations, there is a catch.  To be granted an extension of OPT, students must:

1. Maintain valid F -1 status;
2. Currently be participating in a 12-month period of approved post-completion OPT;
3. Have successfully completed a degree in science, technology, engineering, or mathematics  (part of the DHS STEM program) from an approved U.S. college or university;
4. Be working for a U.S. employer in a job directly related to the student’s major area of study; and
5. Be working for, or accepted employment with, an employer enrolled in the USCIS E-Verify program, a free Internet-based program which purports to help employers determine employment eligibility for new hires.  
   

The biggest catch is the last point.  Although many employers are being required by recently enacted state laws to enroll in the E-Verify program, concerns remain about the program and what it really means for employers who participate.

The full text of the rule has not yet been posted online, but I will advise you of any additional items of interest as soon as I have had an opportunity to review it.  It is not clear yet, for example, how the automatic extension is triggered, or whether the conditions mentioned above also apply to students with pending H-1B petitions.  

In the meantime, please contact me if you would like to see the USCIS press release about the rule, have any questions or would like to discuss the E-Verify Program.

Posted: February 2, 2008

DHS Announces Collection of 10 Fingerprints at 3 Major Airports

The U.S. Department of Homeland Security (DHS) announced on February 1 that it has begun collecting additional fingerprints from international visitors arriving at Hartsfield-Jackson Atlanta International Airport, George Bush Houston Intercontinental Airport, and Chicago O’Hare International Airport.  10 fingerprints are already being collected at Washington Dulles International Airport.  The change is part of the department’s upgrade from two- to 10-fingerprint collection to enhance security and facilitate legitimate travel by more accurately and efficiently establishing and verifying visitors’ identities.  http://www.dhs.gov/xnews/releases/pr_1197300742984.shtm
http://www.dhs.gov/xtrvlsec/programs/gc_1194553866460.shtm

USCIS Announces Centralized Filing Location for Certain H-1B CAP Exempt Petitioners

U.S. Citizenship and Immigration Services (USCIS) announced January 30 a customer service initiative to streamline the adjudication of H-1B petitions. Effective immediately, USCIS will employ a special unit dedicated to processing H-1B cap exempt petitions at the USCIS California Service Center (CSC).  All H-1B cap exempt petitions are to be filed with the CSC, regardless of job location.  http://www.uscis.gov/files/pressrelease/H-1B_Filing_30jan08.pdf

New Documents Required to Enter U.S. at Land/Sea Ports of Entry

Effective January 31, 2008, U.S. and Canadian citizens ages 19 and older should no longer expect that they will be able to prove identity and citizenship by relying on an oral declaration alone. Instead, travelers will be asked to present certain documents when entering the United States at land or sea ports of entry. Travelers who do not present an acceptable document may be delayed as U.S. Customs and Border Protection officers attempt to verify their identity and citizenship.  For a complete list of documents, please visit: http://www.cbp.gov/xp/cgov/travel/vacation/ready_set_go/land_travel/chnge_in_proced.xml