Legislative Update -- Immigration Legislation Under the New Administration
Commentators and immigration legislation advocates differ regarding what will happen with immigration reform under the Obama administration. So far, three schools of thought have emerged: (1) there will be comprehensive immigration reform in this administration’s first year; (2) current economic conditions will detract from the focus on immigration in the near-term; and (3) piecemeal immigration legislation will emerge in the first year followed by comprehensive reform in 2010.
The 110th Congress was marked by the failure of several important legislation proposals, including the DREAM Act, the H-1B numerical cap increase, AgJOBS, and the recapture of immigrant visas that were unused (wasted) over many years. Most commentators agree that refraining from addressing immigration issues is not an option for the Obama administration. While the economy will be at center stage, the President expected to follow through on his promise to achieve comprehensive immigration reform. The President’s selection of Janet Napolitano for Secretary of Homeland Security has signaled to many reform supporters that the President is committed to immigration reform. The questions are when and how extensive immigration reform will be.
Given the economic challenges the United States faces, the President’s primary focus will be on reviving the U.S. economy. However, having pledged to seek comprehensive immigration reform, the President is unlikely to abandon his pledge. What is likely to occur is piecemeal legislation in the short term, with a comprehensive measure likely to be introduced later this year and debated in 2010. Likely to be considered in the near-term due to their relatively mild impact on the economy include the DREAM Act or a similar legislation providing legalization opportunities for undocumented, now college-age students who came to the U.S. as children, and AgJOBS, a measure to provide legalization options for agricultural workers to address the recognized shortage of seasonal farm labor.
Thus far in Congress, a select few law-makers have focused on expanding the controversial E-Verify program and on challenging the Immigrant Children's Health Improvement Act that repeals the 5-year bar on medical benefits for legal permanent resident children and pregnant women. Comprehensive immigration reform bills have already been introduced in the Senate and in the House of Representatives.
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Revised I-9 Form Required Beginning February 2nd
Beginning February 2, 2009 employers must use a revised I-9 Employment Eligibility Verification form when verifying the identity and work authorization of any new employee or reverifying the work authorization of an existing employee.
Our summary discussing what the latest I-9 form revision means for employers is available here. The new I-9 form is available for download at U.S. Citizenship and Immigration Services (USCIS)’s website.
President Obama’s January 20, 2009 directive halting the implementation of any new federal regulations that have not yet become effective has injected some uncertainty about whether employers must use the latest I-9 version beginning on February 2nd. We are not aware of any moratorium on use of the new I-9 form that must be used starting on February 2nd.
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E-Verify For Federal Contractors Delayed Again
Today, the U.S. government will formally delay until May 21, 2009 the applicability of the E-Verify requirement for Federal contractors. A notice to this effect is slated to appear in tomorrow’s Federal Register but U.S. Citizenship and Immigration Services (USCIS) has already confirmed the delay on its website.
In November 2008, the Administration published a regulation requiring businesses contracting with the Federal government (“Federal contractors”) to "verify the employment eligibility of: (1) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (2) all persons assigned by the contractor to perform work within the United States on the Federal contract." The regulation was scheduled to take effect on January 15, 2009. For more information about the regulation, please click here.
In late December, the U.S. Chamber of Commerce and other representative organizations filed a federal lawsuit against the government over its Federal contractor E-Verify program. Because of this lawsuit, the Administration agreed to delay the applicability date of the rule until February 20, 2009.
Recently the Obama Administration issued a memorandum encouraging all federal agencies to extend for 60 days the effective date of regulations that had been published but had not yet taken effect. The U.S. Chamber of Commerce asked the Administration to apply this memorandum to E-Verify for Federal contractors. The Chamber and the government’s lawyers have asked the court to stay the proceedings to permit the new Administration to review the Federal contractor regulation.
At this time, the E-Verify clause for Federal contractors will not be effective until May 21, 2009. Further delays or even a withdrawal of the E-Verify regulation are possible.
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Expansion of US-VISIT to Wider Group of Non-Citizens
Effective January 18, 2009, the Department of Homeland Security (DHS) expanded the list of non-U.S. citizens who are required to submit biometric information (digital fingerprints and a photograph) through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) Program upon entry or re-entry to the United States. The US-VISIT system enables the collection and storage of biometric information for purposes of verifying the identities and travel documents of foreign nationals.
Prior to the effective date, foreign nationals who arrived at a U.S. port of entry with a nonimmigrant visa and individuals traveling without a visa as part of the Visa Waiver Program (VWP) were already required to submit biometric information through the US-VISIT system.
The following non-U.S. citizens have been added to the list:
- Lawful permanent residents of the United States (LPRs).
- Individuals who seek admission to the United States on immigrant visas;
- Individuals who seek admission as refugees or asylees;
- Canadian citizens who are required to obtain a Form I-94 upon entry (i.e., Canadians applying for admission in the following nonimmigrant classifications: C, D, F, H, I, J, L, M, O, P, Q 1, Q 3, R, S, T, TN). Excluded from this expanded list are most Canadian citizens entering for business trips or pleasure visits;
- Canadian citizens who require a waiver of inadmissibility to enter the United States;
- Individuals paroled into the United States; and
- Individuals applying for admission under the Guam Visa Waiver Program.
Non-U.S. citizens entering or re-entering the United States at a
land border port of entry will be processed differently at the discretion of the Homeland Security inspector:
- Rather than being required to provide biometrics upon entry, LPRs will have to do so only if they are referred to secondary inspection;
- All other non-U.S. citizens required to use US-VISIT under the new rule will be required to provide biometrics during secondary inspection; and
- Non-U.S. citizens who seek admission with Border Crossing Cards and who do not have a Form I-94 will still be required to go through US-VISIT procedures, at the discretion of Homeland Security officers.
DHS does not anticipate that the increase in the list of individuals who are required to use the US-VISIT system will impact processing or wait times. More information about the purpose of US-VISIT is available
here.
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U.S. Consulate at Ciudad Juarez Now Requires Electronic Visa Application -- DS-160
Beginning January 20, 2009, the U.S. Consulate General in Ciudad Juarez, Mexico requires all non-immigrant visa applicants to use the DS-160 Nonimmigrant Visa Application when applying for a nonimmigrant visa, regardless of visa class. Visa applicants at Ciudad Juarez should visit the consulate's website at http://ciudadjuarez.usconsulate.gov/non-immigrant viasa.html for further information.
To date, five other U.S. consulates require use of the DS-160: Monterrey and Nuevo Laredo, Mexico; Montreal and Vancouver, Canada; and Hong Kong. Eventually, all U.S. consulate worldwide will require use of the DS-160.
The DS-160 is completed and submitted entirely online. The application may be completed by a third party but ultimately the actual visa applicant must submit the form online. Upon submission of the DS-160, the applicant receives a confirmation page that he or she must take to the visa interview appointment. All information submitted electronically is stored in the Department of State database and is retrieved by the U.S. consular officer at the interview via the confirmation page. For information about the DS-160 and the other U.S. consulates requiring this latest visa application please click here.