July 29, 2014

DACA and State Driver’s Licenses

The Deferred Action for Childhood Arrivals (DACA) policy permits individuals who arrived in the United States before the age of 16 and who meet other age, education, continuous presence, and criminal history-related requirements to remain in the United States for a renewable two-year period and to apply for work authorization. The federal REAL ID Act specifically identifies deferred action as a lawful status that would permit the issuance of a federally recognized driver’s license.

However, because the rules governing eligibility for driver’s licenses are determined at the state level, a DACA grant does not automatically provide eligibility for a state driver’s license. Because the REAL ID Act federally recognizes deferred action as lawful presence, there are strong arguments for states to issue driver’s licenses to deferred action grantees. DACA recipients who do obtain work authorization and social security numbers qualify under the eligibility rules for a driver’s license in almost every state. Currently, otherwise-eligible DACA grantees can get a driver’s license in every state except Arizona and Nebraska. Litigation challenging the denial of driver’s licenses to DACA grantees in those two states is ongoing.

For more information about DACA, please contact our office.

July 15, 2014

E-Verify Participation May Spur Compliance Investigations

I-9 and E-Verify compliance enthusiasts report a noteworthy trend in recent cases brought to the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Many of the recent cases in which OSC has reached settlements with employers for work authorization noncompliance were initiated by a referral from USCIS’s Verification Division Monitoring and Compliance Branch (M & C Branch).

The E-Verify Statute requires that Department of Homeland Security (DHS) ensure the security of the E-Verify System. The authority to monitor and provide oversight is based on Section 404(d) of the E-Verify statute and the Memorandum of Understanding which E-Verify employers are required to enter into with DHS.

The M & C Branch describes their mission as overseeing the usage of E-Verify and detecting and reducing misuse with the responsibility of protecting the integrity of the E-Verify Program. In addition to acting as a customer service center for confused or novice E-Verify employer-participants, M & C Branch monitors E-Verify system usage to identify potentially noncompliant employer-participants.

Common errors identified by M & C Branch include:

• Creating duplicate cases for the same employee
• Immediately terminating employees who receive a tentative non-confirmation (TNC)
• Failing to create a case by the third day after the employee started work for pay
• Creating cases for employees who were hired before the employer-participant enrolled in E-Verify
• Not reviewing acceptable documents or a document containing a photograph

After an initial review of an employer-participant’s system usage, M & C Branch may contact participants with noncompliance issues by emails and phone calls. In addition, employers may be contacted to participate in a desk review or site visit for further investigation and to educate the employer-participant about how to properly use E-Verify. According to USCIS “Employers are selected to participate in a desk review if a standard review of their company’s usage indicates that they may be experiencing difficulties with the [E-Verify] system” (USCIS Executive Summary).

M & C Branch is not authorized to issue fees or other punitive measures. However, it can refer employer-participants suspected of misuse, abuse and/or fraud to Immigration and Customs Enforcement (ICE) or the Department of Justice. For more information about M & C Branch, please visit the USCIS website

Please feel free to contact our office for more information about E-Verify and the eligibility requirements and individual considerations for enrollment.

July 14, 2014

CSC and VSC System Glitches Lead to Approval Notices Without I-94s

The USCIS California Service Center (CSC) reports that it accidentally issued I-797 approval notices without I-94 cards. It notes that corrected approval notices have been issued. If you do not receive a corrected notice by July 20, email reports@aila.org with the subject line “CSC I-797 Problem.”

The Vermont Service Center (VSC) reports a similar glitch resulting in the issuance of deficient approval notices. If you received a deficient notice from VSC for a premium processing case and have not yet received a corrected notice, contact the VSC Premium Processing Unit. If you received deficient notice for a non-premium processing case and have not yet received a corrected notice, email reports@aila.org with the subject line “VSC I-797 Problem.”

July 9, 2014

NSC Clarifies Issues for I-140 NIW and I-485 Applications

Earlier this month, the USCIS Nebraska Service Center (NSC) addressed several employment based matters at a meeting with immigration attorneys. The following is a summary of the unofficial minutes from that meeting.

Updates on Adjudicating National Interest Waiver Petitions

According to NSC, adjudications of NIW petitions have slowed because of an “[u]nforeseen operational impact.” NSC has reassured the public that the normal processing timeframe of 4 months had been restored at the end of June. The USCIS Processing Time website reflects this update.

NSC also confirmed that it approves NIW applications for entrepreneurs, though acknowledged that entrepreneurs often find it difficult to meet all three NYSDOT prongs in addition to the EB-2 advanced degree or exceptional ability requirement. The report highlighted the second prong, which a purely local business cannot fulfill; and the third prong, which a first-time entrepreneur lacking a history of achievement cannot fulfill. NSC recommended that interested entrepreneurs visit the USCIS Entrepreneurs Pathways website for useful tips and examples of evidence for NIW entrepreneur applications.

Updates on Adjudicating Employment-based Applications for Permanent Residence (Form I-485)

NSC clarified why Requests for Evidence (RFEs) are issued for all status documents (e.g., I-94s, I-797s) in employment-based I-485 cases. NSC emphasized that adjustment of status is a “discretionary benefit,” for which it can weigh previous violations or overstays as a negative factor in the adjustment adjudication process.

In addition, NSC provided four specific reasons for reviewing all of an applicant’s status:

1) The Service must look for previous periods of unlawful presence that may trigger a bar for admissibility under INA 212(a)(9).

2) The Service must ascertain whether an applicant is subject to the J-1 home residency rule under INA 212(e).

3) The Service must identify A, E, and G nonimmigrants who may be required to submit an I-508 or I-566 waiver before being able to adjust.

4) The Service must identify foreign medical graduates who may require a waiver for INA 212(e) or were admitted in H status while performing a previous medical service obligation.

If you have questions about a pending immigrant petition or a Request for Evidence you have received, please feel free to contact our office.

June 16, 2014

Medical Exam Change for AOS Applications

On June 1, 2014, USCIS limited the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS also will provide additional ways to submit Form I-693. As outlined in policy alert PA-2014-005, this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

June 11, 2014

Study Shows Highly-Skilled Immigrants Create Jobs for U.S. Citizens

A recent study from the Partnership for a New American Economy—a group advocating the economic case for streamlining and modernizing our immigration system—found that when companies have difficulty getting H-1B visas for highly-skilled immigrants, it is bad news for the local tech sector and for U.S. born computer workers who do not have college degrees. This study measured how different cities fared in the 2007 and 2008 H-1B lotteries. The study found that cities with a high number of H-1B petitions not selected in the 2007 and 2008 lotteries “[took] a hit” to their computer sectors and their U.S. born workers. These cities generated slightly fewer jobs for U.S. tech workers with college degrees, but many fewer jobs for U.S. born tech workers without college degrees. For more information, see the article in Vox: http://www.vox.com/2014/6/4/5779472/study-high-skilled-immigrants-jobs-Americans-h1b-visa-lottery.

June 6, 2014

USCIS Accepting Renewals for the Deferred Action for Childhood Arrival (DACA) Program

On June 5, 2014, Secretary of Homeland Security, Jeh Johnson, announced the renewal process for individuals enrolled in the Deferred Action for Childhood Arrivals (DACA) program. DACA allows certain individuals who came to the U.S. as children to remain in the U.S. and apply for employment authorization for a period of two years. Effective immediately, U.S. Citizenship and Immigration Services (USCIS) will begin accepting DACA renewal requests. USCIS encourages individuals to submit their renewal request approximately 120 days (four months) before their current period of deferred action expires to avoid a lapse in the period of deferral and employment authorization.

In addition, USCIS continues to accept initial DACA requests. You may request DACA if you:

(1) Were under the age of 31 as of June 15, 2012;
(2) Came to the United States before reaching your 16th birthday;
(3) Have continuously resided in the United States since June 15, 2007, up to the present time;
(4) Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
(5) Had no lawful status on June 15, 2012;
(6) Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
(7) Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

Please contact Cornerstone Law Group if you need any assistance filing a DACA renewal or an initial DACA request. For more information on the DACA renewal process see http://www.uscis.gov/news/secretary-johnson-announces-process-daca-renewal. Also, to learn more about DACA and its guidelines see www.uscis.gov/childhoodarrivals.

June 4, 2014

Canadian Posts Can Only Process Limited TCN Cases This Summer

On April 3, 2014 the Department of State announced that all U.S. visa processing posts in Canada will accept only a very limited number of non-immigrant visa applications from Third Country Nationals (TCN) during the peak demand period of June, July, and August. A TCN applicant is a foreign national who is applying at a consulate in a country other than his home country. Canadian posts typically have appointment availability for non-Canadian applicants. However, these posts are currently experiencing such a heavy demand by Canada-based visa applicants that their ability to process TCN cases is limited. The Canadian posts encourage TCN applicants to seek appointments elsewhere in the world, such as their home countries. Emergency cases may request consideration for an interview at a Canadian post by visiting canada.usembassy.gov. TCN applicants with appointments already scheduled at a post in Canada during these months will not be affected.

May 16, 2014

June 2014 Department of State Visa Bulletin

The new visa bulletin is out at this link: June 2014 Visa Bulletin

Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 is current for all countries, except India (November 15, 2004) and China (May 22, 2009); EB-3 is at April 1, 2011 for all countries, except India (October 15, 2003), China (October 1, 2006), and Philippines (January 1, 2008); EB-3 other workers is at April 1, 2011 for all countries, except India (October 15, 2003), China (January 1, 2003) and Philippines (January 1, 2008); EB-4, religious workers, EB-5 targeted employment areas and regional centers, and EB-5 Pilot Programs are all current. Family based petitions are backlogged, with the most recent date at May 1, 2012 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of November 15, 1990.

May 12, 2014

Employment authorization to be extended to H-4 spouses of certain H-1B workers

On May 6, 2014, the U.S. Department of Homeland Security (DHS) announced a proposed rule to amend existing regulations to allow H-4 dependent spouses of certain H-1B workers to request employment authorization. Under current regulations, DHS does not extend employment authorization to H-1B dependents.

The new rule provides for requests for employment authorization from H-4 spouses of H-1B workers who:

• Have an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay beyond the six-year limit and are in line for a green card.

DHS explains that the rule is aimed at attracting and retaining highly skilled immigrants. It is estimated that it could benefit almost 100,000 H-4 visa holders this year and approximately 30,000 annually in the coming years.

For more information about this proposed rule, please see the DHS website.

May 6, 2014

USCIS Now Only Accepts the Newly Revised Form N-400, Application for Naturalization (Rev. 9/13/13)

As of May 5, 2014, USCIS will accept only the revised version of Form N-400 (Rev. 9/13/13), Application for Naturalization. USCIS will reject and return previous versions of the Form received after this date. Issued on February 4, 2014, the new version does not change the eligibility requirements. According to USCIS, the revisions are designed to allow the Service to more efficiently make eligibility determinations.

The revised Form N-400 includes:

(1) Additional questions surrounding good moral character and issues relating to U.S. security. These questions were formulated for compliance with the Intelligence Reform and Terrorism Prevention Act (2004) and Child Soldier Prevention Act (2008).

(2) Clearer and more comprehensive instructions, which now explain how to complete each part of the application.

(3) 2D barcode technology at the bottom of each page, similar to that which has already been added to other USCIS forms. These barcodes allow USCIS to scan data for direct input into USCIS systems, providing for improved data quality, efficiency, and overall integrity of the naturalization program.

USCIS encourages individuals to access the revised form at www.uscis.gov/n-400, complete it out online, then print, sign and mail it to USCIS. Individuals who are unable to fill out the Form online may print it and complete it by hand; or they can call 1-800-870-3676 to order the Form by mail.

For more information about the new version, please view USCIS’s introductory video and read Tips for Filing Form N-400, Application for Naturalization (Rev. 9/13/13).

May 5, 2014

OCAHO Issues Another Major Penalty Fine for I-9 Violations

On March 11, 2014, the Office of the Chief Administrative Hearing Officer (OCAHO) laid down yet another hefty fine for I-9 violations. OCAHO found that M&D Masonry, Inc., a Georgia construction contractor, was liable for $228,000 in I-9 penalty fines. The case discusses several notable points that U.S. employers should be aware of.

(1) ICE can initiate an investigation after reading a disparaging newspaper article about the employer.

ICE served a Notice of Inspection after reading in the Atlanta Journal Constitution an article entitled “Illegal Hiring for Airport Construction,” which quotes an M&D foreman saying that M&D employs undocumented workers. M&D argued that ICE cannot serve a Notice of Inspection based on hearsay in an article without first investigating the article itself. The OCAHO rejected M&D’s argument because M&D presented no legal authority and stated that it does not have the authority to direct ICE’s choices of businesses to inspect.

(2) ICE can work in connection with state entities.

During its investigation, ICE worked in connection with the Georgia Department of Labor, which provided the social security numbers and first three letters of the last names of all M&D employees. This allowed ICE to identify more substantive violations, namely employees who did not have any Form I-9 completed.

(3) ICE does not need to provide the full names of employees with I-9s in question.

M&D argued that because ICE could only produce the social security numbers and the first three letters of the last names of certain employees, it cannot be held liable for the failure to complete Forms I-9 for those employees. However, OCAHO held that M&D clearly knew the identities of each of the employees in question and therefore is responsible for all violations stemming from those Forms I-9 or lack thereof.

(4) Failure to provide the issuing authority for a driver’s license is a substantive violation.

ICE alleged that M&D committed nine substantive violations for omitting the name of the issuing authority of a driver’s license in Section 2. M&D argued that the Virtue Memorandum does not classify the failure to enter the issuing authority for a driver’s license as a substantive violation. However, OCAHO found that the Memorandum does not list it as a technical violation either and it reads that the enumerated violations are not exhaustive. Supported by extensive case law, OCAHO agreed with ICE that such omission is a substantive violation.

(5) ICE is not required to consider the employer’s ability to pay the penalty fine.

The regulations provide for five factors to be considered in determining the penalty fine. The employer’s ability to pay is not one of those five. Nonetheless, in some case law, ability to pay has been considered. OCAHO held that because there is no legal authority requiring it to consider ability to pay, it can at its own discretion but is not required to do so. Significantly, OCAHO noted that its case law suggests that because an employer’s ability to pay is a matter of equity, the factor can be raised only by a party with clean hands.

(6) An employer cannot use a rubber stamp as a Section 2 signature prior to completion of the Form.

ICE found that M&D used a rubber stamped signature in Section 2 for a large number of Forms at a time the rest of the Form was entirely blank. OCAHO found that this practice fails to reflect a reasonable attempt by M&D to comply with its I-9 obligations and constitutes “false attestation.”

For more information about this case please see the OCAHO decision.