Immigration Law Blog

"No-Match" Rule to be Rescinded

DHS announced that it will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect.  That rule established procedures that employers could follow if they received SSA No-Match letters or notices from DHS that called into question work eligibility information provided by employees.  The notices often informed an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report did not match SSA records and often the problems were due to typographical errors or unreported name changes.  DHS claims the E-Verify system addresses data inaccuracies in a more timely manner and provides a more robust tool for identifying unauthorized workers.

Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009

USCIS announced that the Employment Eligibility Verification Form I-9 (Rev. 02/02/09) will continue to be valid for use beyond June 30, 2009.  USCIS has requested that the Office of Management and Budget approve the continued use of the current version of Form I-9 which indicates in the upper right hand corner "Expires 06/30/09."  While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire.  USCIS will update Form I-9 when the extension is approved.

ICE Priorities for Worksite Enforcement Clarified

DHS Secretary Napolitano issued guidance on April 30, 2009 clarifying that effective immediately, Immigration and Customs Enforcement (ICE) will focus resources in its worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.

ICE will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct.  ICE offices will obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.  

ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions in a manner consistent with immigration law and DHS priorities.  Humanitarian guidelines will remain in effect, impacting worksite enforcements involving 25 or more illegal workers. This reflects a change from the previous threshold of 150.

U.S. Department of Labor Activates iCERT Portal

The U.S. Department of Labor has activated its new iCERT system for filing the new Labor Condition Application Form 9035E for the H-1B program.  The system is located at http://icert.doleta.gov  The current electronic LCA system will continue to be available through May 14, 2009. However, effective May 15, 2009, LCAs will be available for submission only through the iCERT portal system and the current electronic version of the Form ETA 9035E will be deactived.

The PERM application, Form ETA 9089, will become available for application submission on September 1, 2009 on the iCERT portal. To allow for an appropriate transition, both systems will be active during the month of September. However, beginning October 1, 2009, PERM applications will be submitted electronically only through iCERT system accounts.  The Department will deactivate the current electronic version of the Form ETA 9089 on October 1, 2009. Employers are encouraged to copy all necessary application information into the new iCERT system prior to these deactivation dates. The status of applications submitted prior to deactivation will continue to be available through current system accounts.

Revised Form I-9 Now Required

Form I-9, Employment Eligibility Verification with revision date of 02/02/09 must now be used by all U.S. employers. Employers may no longer use previous versions of the Form I-9. The revision date is printed on the lower right-hand corner of the form. 

The new form revised the list of documents acceptable for the Employment Eligibility Verification to improve the security and effectiveness of the Form I-9 process. The list specifies that expired documents are no longer acceptable forms of identification or employment authorization.  Allowing for expired documents makes it more difficult for employers to verify an employee’s identity and employment authorization and compromises the Form I-9 process.

USCIS also updated the Handbook for Employers – Instructions for Completing Form I-9 to reflect the requirements of the revised Form I-9.  For more information on USCIS and its programs, or to obtain the revised Form I-9 and handbook, visit www.uscis.gov.or call the toll-free forms line at 1-800-870-3676.

EB-5 Immigrant Investor Pilot Program Extended

A provision in the “Fiscal 2009 Omnibus Appropriations Bill,” H.R. 1105, signed into law on March 11, 2009, has extended the Immigrant Investor Pilot Program through September 30, 2009.  Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 3,000 are set aside for those who apply under a pilot program involving a USCIS-designated "Regional Center."

A "Regional Center:"

• Is an entity, organization or agency that has been approved as such by the USCIS;
• Focuses on a specific geographical area within the United States; and,
• Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

"Investors" must:

• Demonstrate that a "qualified investment" of $500,000 is being made in a new commercial enterprise located within an approved Regional Center; and,
• Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased doemstic capital investment resulting from the pilot program.

USCIS will continue to receive, process, and adjudicate all Regional Center Proposals and Forms I-526, Immigrant Petitions by Alien Entrepreneur, and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on “indirect” job creation analysis and the $500,000 investment threshold.  Currently, there are 45 regional centers throughout the United States.

H-2B Program Limited to Nationals of Certain Countries

The Department of Homeland Security has published the list of countries whose nationals can be the beneficiaries of an approved H-2B petition and become eligible for H-2B visas.  This initial list is composed of countries that are important for the operation of the H-2B program and are cooperative in repatriation of its citizens and nationals or residents who are subject to a final order of removal from the United States.  This list is effective January 18, 2009, and shall be without effect at the end of one year after January 18, 2009.

Countries Whose Nationals Are Eligible to Participate in the H-2B Visa Program:

Argentina;
Australia;
Belize;
Brazil;
Bulgaria;
Canada;
Chile;
Costa Rica;
Dominican Republic;
El Salvador;
Guatemala;
Honduras;
Indonesia;
Israel;
Jamaica;
Japan;
Mexico;
Moldova;
New Zealand;
Peru;
Philippines;
Poland;
Romania;
South Africa;
South Korea;
Turkey;
Ukraine;
United Kingdom.

"No-match" Decision Will Not Be Rushed

The federal court hearing the matter in San Francisco has denied a government request to quickly issue a final decision on whether the Bush Administration may implement its new Social Security Administration (SSA) "No-match" rules.  The lawsuit brought by labor unions and employers seeking to block the rule will move forward under a standard schedule, and a decision will not come until late February or March of 2009.  This ruling will give the Obama Administration an opportunity to consider whether this is a practical and cost-effective program to pursue.
 
Immigrant, business, and labor advocates have argued the new attempts to use the "No-match" program--an SSA program used to help U.S. workers track earnings and receive benefits--as an immigration enforcement tool, is a purpose for which the program is ill equipped.  Implementation of the new rule could also have an adverse impact on the economy.  The "No-match" rule could result in as many as 165,000 U.S. citizens and legal workers losing their jobs and could cost employers over $1 billion per year according to an April 2008 study commissioned by the U.S. Chamber of Commerce.

New Countries Added to Visa Waiver Program

Effective November 17, 2008, the countries of Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic have been added to the o the list of countries authorized to participate in the Visa Waiver Program (VWP). Citizens and eligible nationals from VWP countries may apply for admission to the United States at a U.S. port of entry as nonimmigrant aliens for a period of ninety days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements.

The complete list of VWP countries includes: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The United Kingdom refers only to British citizens who have the unrestricted right of permanent abode in the United Kingdom (England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man); it does not refer to British overseas citizens, British dependent territories' citizens, or citizens of British Commonwealth countries.

October 2008 Supplemental Final Rule on “No-Match” Letters

On October 23, 2008, the U.S. Department of Homeland Security (DHS) issued a supplemental final rule concerning the "safe harbor” protection available to employers after they receive a letter from the Social Security Administration (SSA) stating that the information submitted for an employee does not match SSA records (otherwise known as an SSA “no-match” letter). The supplemental final rule (which expands upon a March 2008 proposed rule) included additional legal analysis and a Final Regulatory Flexibility Analysis, but ultimately re-issued the August 2007 no-match final rule “without substantive change.” 

The August 2007 final rule stated that if an employer follows the “safe harbor” procedures set forth in the rule, DHS will not use the no-match letter as evidence that the employer has “constructive knowledge” that it has hired undocumented workers. The August 2007 rule was scheduled to go into effect on September 14, 2007, but on October 10, 2007, it was preliminarily enjoined by the U.S. District Court for the Northern District of California. The granting of the preliminary injunction prohibited DHS from implementing the final no-match rule until the court makes a final ruling, after trial, on whether or not the rule is legal. This means that the DHS rule still is not in effect. The court order applies to the entire country, not just northern California. The rule is blocked indefinitely until the court issues a final decision on the rule.

The preliminary injunction remains in place unless and until the court decides to dissolve it. With the issuance of the supplemental final rule DHS has said it plans to go back to the court to ask the court to dissolve the injunction. Currently however, the rule remains blocked until the court either decides to dissolve the injunction or decides whether or not the rule is legal.

New Work and Travel Program for Irish Students and Grads

The United States and Ireland soon will begin to implement a Twelve-Month Intern Work and Travel Pilot Program for post-secondary students or young people within twelve months of graduation. The new program is an innovative exchange program that will allow thousands of young people from Ireland to enter the United States for a period of twelve months on a J-1 exchange visitor visa. There also will be reciprocal opportunities for young people from the United States to travel to Ireland. This will allow students from both countries to participate in a variety of internships, and to travel independently within the United States and Ireland.

The program will be coordinated by the private sector under the auspices of the U.S. Department of State’s Bureau of Education and Cultural Affairs, and falls under the Intern Category of the Exchange Visitor Program. This program is set to be launched in late 2008 or early 2009. Further details and prerequisites on the program will be available from the U.S. Embassy in Dublin and Ireland’s Embassy in Washington, DC.

USCIS Revises Its "How Do I" Customer Guides

USCIS has revised its “How Do I” customer information guides to help applicants, petitioners, and community-based organizations better understand immigration-related benefits.  The series covers 24 topics on citizenship, permanent residency, employment verification, case services, adoption, and other immigration-related benefits and services.

After publication of the first “How Do I” series in 2006, USCIS received feedback from stakeholders and customers that the guides were helpful but needed clearer, more straightforward language to explain the complexity of immigration laws and regulations. After extensive review, USCIS revised the “How Do I” series using elements of plain language techniques to simplify immigration information provided in the guides.

The “How Do I” series may be found by clicking here.

Ninth Circuit Ruling on Constructive Knowledge of Immigration Status

The U.S. Court of Appeals for the Ninth Circuit recently confirmed an arbitration award requiring Aramark Facility Services to reinstate 33 janitors that it fired after receiving no-match letters from the Social Security Administration and giving the workers only a few days to correct the discrepancy

This case arose from the response by Aramark Facility Services to a “no-match letter” from the Social Security Administration, which indicated that Aramark had reported information for 48 of its employees at the Staples Center in downtown Los Angeles that did not match the SSA's database. Suspecting immigration violations, Aramark told the listed employees they had three days to correct the mismatches by proving they had begun the process of applying for a new social security card. Seven to 10 days later, Aramark fired 33 employees who did not timely comply.

Local 1877 of the Service Employees International Union filed a grievance on behalf of the fired workers, contending the terminations were without just cause and thus in breach of the collective bargaining agreement between Aramark and SEIU. An arbitrator ruled for SEIU and awarded the fired workers back-pay and reinstatement, finding there was no convincing information that any of the fired workers were undocumented. The district court vacated the award on the ground that it violated public policy. SEIU appealed.

Federal Contractors Will be Required to Use E-Verify

President George W. Bush has released Executive Order 12989, requiring businesses entering into a contract with an agency or department of the federal executive branch to electronically verify the employment authorization of their employees.  The Department of Homeland Security then designated E-Verify as the electronic employment eligibility verification system that all federal contractors must use as required by the Executive Order. 

Agencies responsible for federal acquisition regulations have sent a Notice of Proposed Rulemaking (NPRM) to the Federal Register soliciting public comment on proposed changes to these regulations.  Comments will be accepted for 60 days.   

E-Verify is a free Internet-based system that allows enrolled employers to confirm the legal status of new hires within seconds. More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.

Electronic System for Travel Authorization to U.S. Planned

The Department of Homeland Security has issued an Interim Final Rule, establishing a new online system called Electronic System for Travel Authorization (ESTA), that will require citizens of Visa Waiver Program (VWP), countries to obtain approval prior to boarding a carrier to travel by air or sea to the United States.  ESTA approval only authorizes a traveler to board a carrier for travel to the U.S. under the VWP. In all cases, Customs and Border Patrol officers will make the final admissibility determination at the port of entry.

ESTA applications may be submitted at any time prior to travel to the United States, and VWP travelers are encouraged to apply for authorization as soon as they begin to plan a trip to the United States. If applicants’ destination addresses or itineraries should change after their authorization has been approved, they may easily update that information through the ESTA website.

Travelers will log on to the ESTA web-based system and complete an application online providing the biographical and eligibility information currently required on the paper I-94W form.  The ESTA web-based system will be available for voluntary applications after Aug. 1, 2008.