Immigration Law Blog

DHS Proposes Three Year TN (NAFTA) Visas

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States as business persons to engage in business activities at a professional level. The specific occupations which qualify for the TN classification include accountants, engineers, lawyers, pharmacists, scientists, and teachers. Spouses and unmarried minor children of TN nonimmigrants may be granted TD nonimmigrant classification to accompany their family member.

USCIS regulations currently provide that TN nonimmigrants may be admitted to the United States for a period not to exceed one year. The proposed rule would ease the burden to TN employees and their employers by increasing the maximum allowable period of admission for from one year to three years, and allow extensions of stay in increments of up to three years instead of the current maximum of one year.

USDHS Extends OPT to 29 Months For Certain Students

USDHS has adopted an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

“This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” said Homeland Security Secretary Michael Chertoff. “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”

Another aspect of the rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

USCIS Addresses F-1/H-1B "Cap Gap"

What is the H-1B cap?

The cap is the congressionally-mandated limit on the number of individuals who may be granted H-1B status during each fiscal year. For FY08, the cap is 65,000, with certain statutory cap exemptions.

What is the F-1/H-1B “cap-gap”?

Cap gap occurs when an F-1 student’s status and work authorization expire in the current fiscal year, before they can start their approved H-1B employment in the next fiscal year beginning on October 1. An F-1 student in a cap-gap situation would in most cases have to leave the United States and return at the time his or her H-1B status becomes effective at the beginning of the next fiscal year. Depending on when the student’s status expires, such circumstances could require the student to remain outside the United States for several months.

How does cap gap occur?

• Under the prior regulation (and unchanged by this rule), an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training.

• As a result, the earliest date that an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1, for an October 1 employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start the approved H-1B employment is October 1.

• Consequently, F-1 students who are the beneficiaries of approved H-1B petitions with October 1 employment start dates, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, are in many cases required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status.

DHS Republishes "No-Match" Rule

The U.S. Department of Homeland Security has published a supplemental proposed rule that attempts to clarify its August 2007 final rule on “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter” that was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007.  Rather than making changes in the substance of the previous rule, which was enjoined by the Court, DHS reiterates its same old arguments. The rule's bottom line remains unchanged: employers may believe they have no choice but to fire any employee who cannot resolve within 90 days a social security records discrepancy.

The minor clarifications made to the 2007 final rule by the supplemental proposed rule are, first, the supplemental rule defines “prompt” notification that employers must provide to workers listed in a no-match letter as being immediately upon receipt of the no-match letter or within 5 business days of the employer completing the internal review; second, it says that the 2007 final rule does not apply to workers hired before November 6, 1986 (nor does the supplemental rule); and third, it says that the 2007 final rule does not require employers to make or retain any new documentation or records should employers choose to follow the “safe-harbor” steps laid out in the rule (nor does the supplemental rule).

The following is a summary of the steps employers should take in order to benefit from a “safe harbor,” as provided in the August 2007 final rule and also in the supplemental proposed rule.

Higher Civil Fines Announced for Immigration Violations

The U.S. Department of Justice has announced higher civil fines against employers who violate federal immigration laws. Under the new rule, which was approved by Attorney General Mukasey and Secretary of Homeland Security Michael Chertoff, civil fines will increase by as much as $5,000.

The new rule will take effect on March 27, 2008. Under the Immigration and Nationality Act, employers who violate employment eligibility requirements are subject to civil monetary penalties. Employers may be fined under the Act for knowingly employing unauthorized aliens or for other violations, including failure to comply with the requirements relating to employment eligibility verification forms, wrongful discrimination against job applicants or employees on the basis of nationality or citizenship, and immigration-related document fraud. For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

Under the new rule and applicable law, civil penalties for violations of the Immigration and Nationality Act are adjusted for inflation. Because these penalties were last adjusted in 1999, the average adjustment is approximately 25 percent. The minimum penalty for knowing employment of an unauthorized alien increases by $100, from $275 to $375. Some of the higher civil penalties are increased by $1,000; for example, the maximum penalty for a first violation increases from $2,200 to $3,200. The biggest increase raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-alien basis; thus, if an employer knowingly employed five unauthorized aliens, five fines may be imposed.

H-2A Program to be Improved

The U.S. Department of Homeland Security announced on February 6, 2008, a series of proposed rule modifications to provide employers with a streamlined hiring process for temporary and seasonal agricultural workers under the H-2A program.

“These proposed changes are designed to provide an efficient and secure program for farmers to legally fulfill their need for agricultural workers within the law rather than outside the law,” said Homeland Security Secretary Michael Chertoff. “This common-sense simplification of H-2A will provide farm employers with a more orderly and timely flow of legal workers, while continuing to protect the rights of laborers and promoting legal and secure methods for determining who is coming into the country.”

The proposed modifications to the rule reduce current limitations and certain delays faced by U.S.employers and relax the current limitations on their ability to petition for multiple, unnamed agricultural workers. It extends from 10 to 30 days the time a temporary agricultural worker may remain in the U.S. after the end of employment. The rule also reduces from six to three months the time a temporary agricultural worker must wait outside the U.S. before he or she is eligible reenter the country under H-2A status. Additionally, under the proposed rule H-2A workers who are changing from one H-2A employer to another may begin work with the new petitioning employer before the change is approved by USCIS, provided the new employer participates in USCIS’ E-Verify program.

Update on H-2B Visas

On January 3, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of cap-subject H-2B petitions to reach the congressionally mandated cap of 33,000 for the second half of Fiscal Year (FY) 2008.

With a "final receipt date" of January 2, 2008 for new H-2B petitions requesting employment start dates prior to October 1, 2008, seasonal employers throughout the country found themselves unable to proceed with visa applications for countless foreign workers.

The H-2B visa allows US employers to hire overseas workers for temporary or seasonal, non-agricultural labor. These visas are heavily relied upon by companies with a seasonal business nature, such as the Colorado ski resorts and companies relying on summer tourism, seeking temporary laborers to meet staffing demands created by the seasonal increase in business.  While 66,000 H-2B visas are available each year, the first half of these visas are available for start dates on or after October 1st and the second half are available for start dates on or after April 1st. 

USCIS Announces H-2B Cap Reached for Second Half of FY2008

On January 3, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of petitions to reach the congressionally mandated H-2B cap of 33,000 workers for the second half of Fiscal Year 2008.  January 2, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to October 1, 2008.  USCIS will reject petitions for new H-2B workers seeking employment start dates prior to October 1, 2008 that arrive after January 2, 2008 and will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on January 2, 2008.  Those not selected will be return with the filing fees.

DHS Files Appeal of the No-Match Rule Injunction

On December 4, 2007, the U.S. Department of Justice filed an appeal on behalf of the Department of Homeland Security (DHS) on the injunction against the No-Match Rule in San Francisco, Calif.  DHS Secretary Michael Chertoff issued a statement on the appeal including the following:

I believe that the No-Match Rule is a major step forward in preventing employment of illegal migrants. Contrary to the ACLU’s incorrect statements, the rule is not harmful to legal workers.  DHS is not abandoning it. 

Far from abandoning the No-Match Rule, we are pressing ahead by taking the district court’s order to the Ninth Circuit Court of Appeals.  At the same time, we will soon issue a supplement to the rule that specifically addresses the three grounds on which the district court based its injunction.  By pursuing these two paths simultaneously, my aim is to get a resolution as quickly as possible so we can move the No-Match Rule forward and provide honest employers with the guidance they need. 

The ACLU’s lawsuit has put this vital protection on hold.  That is bad for immigration enforcement and bad for America’s law-abiding employers and their legal workers.  The only real beneficiaries of the ACLU’s strategy are employers who would rather close their eyes to cheap and profitable illegal labor than obey the laws of our country.

DHS Addressing FBI Name Check Delays

The American Immigration Lawyers Association and other sources report that USCIS and the FBI are improving parts of the name check process required for many immigration benefits.  These FBI name checks have delayed approvals of about one third of the permanent residence and naturalization applications for more than one year.  About ten percent of the applications are delayed longer than 33 months.  Federal courts have  been increasingly intolerant of these delays in lawsuits brought by affected applicants, ordering the FBI to expedite the process and suggesting they would grant the benefit directly if the FBI did not complete the name check promptly.

Update on Social Security "No-Match" Letter Regulation

In recent years, the Social Security Administration (SSA) has contributed to the anxiety of employers and foreign nationals with its "No-Match" letters.  The SSA annually reviews W-2 forms and credits Social Security earnings to workers.  If a name and a Social Security Number (SSN) on a W-2 do not match SSA records, the SSA often sends a letter to advise the employer of the problem.

A few months ago, in an effort to alleviate confusion over how employers should respond to these "No-Match" letters, U.S. Immigration and Customs Enforcement (ICE) published regulatory guidance that outlined "safe harbor" procedures for employers that receive "No-Match" letters.  The future of this regulation is now uncertain.

USCIS Advises of Expected Processing Delays

U.S. Citizenship and Immigration Services has issued an advisory warning that processing times for certain application types may become significantly longer.  In particular, it advises that naturalization applications filed after June 1, 2007 may take approximately 16 - 18 months to process. 

The significant increase in the number of applications filed in July and August 2007 is to blame for the expected delays.  During those two months, nearly 2.5 million applications and petitions of all types were received, over double the number received in the same time period of 2006.

For fiscal 2007, USCIS received 1.4 million applications for naturalization; nearly double the volume received in 2006. The agency is working to improve processes and focus increased resources, including hiring approximately 1,500 new employees, to address this workload.

Use of New Form I-9 Required After December 26, 2007

Employers are required to use Form I-9 to verify the identity and employment authorization of newly hired employees. A new amended Form I-9 contains an updated list of acceptable identity and employment authorization documents that reflect the current regulations.  As of November 7, 2007, the new Form I-9 (Rev. 06/05/07)N, is the only version of the form that is valid for use.

The Department of Homeland Security will not seek penalties against an employer for using a previous version of the Form I-9 on or before December 26, 2007.  After December 26, 2007, employers who fail to use the amended Form I-9 (Rev. 06/05/07)N, may be subject to penalties under section 274A of the Immigration and Nationality Act as enforced by U.S. Immigration and Customs Enforcement (ICE).

DHS Abandons Current "No-Match" Rule--New Rule Expected

The U.S. Department of Homeland Security (DHS) filed a motion on November 23, 2007 to stay further proceedings in the lawsuit challenging its "No-Match" rule.  That rule requires employers to fire workers whose social security numbers don't match up with the Social Security Administration database or face the risk of prosecution for knowingly hiring illegal immigrants.  The U.S. District Court for the Northern District of California has entered a preliminary injuction barring DHS from implementing or enforcing the rule.    

DHS stated in its motion that it intends to conduct additional rulemaking proceedings to address the issues raised by the Court and expects it will be able to complete the contemplated rulemaking proceedings by March of 2008. 

New Employment Eligibility Verification Form I-9

On November 7, 2007 the U.S. Citizenship and Immigration Services (USCIS) issued a new Employment Eligibility Verification Form I-9, the form that all employers are required to complete for each employee hired in the United States. Significantly, the list of acceptable documents for proof of both identity and employment eligibility (List A), has changed.