Form I-9 Remains Valid Beyond Current Expiration Date of June 30, 2009
U.S. Citizenship and Immigration Services (USCIS) has confirmed that the Employment Eligibility Verification form I-9 (revised 02/02/09) currently posted on USCIS’ website will continue to be valid for use beyond June 30, 2009. USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of Form I-9. 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 by OMB. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.
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FAR E-Verify Rule Further Delayed Until September 8, 2009
As a result of continuing litigation, the U.S. government has agreed to suspend implementation of its rule requiring most federal contractors and subcontractors to start using E-Verify. The new target date for implementation of the FAR E-Verify regulation is September 8, 2009.
In a related note, USCIS has invited public comments on the E-Verify Program Designated Agent Process. An E-Verify Designated Agent is a liaison between E-Verify and employers who choose to outsource submission of E-Verify employment eligibility verification queries for newly hired employees. E-Verify Designed Agents conduct the verification process for other employers or clients.
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U.S. Citizenship and Immigration Services (USCIS) to Restore Premium Processing of I-140 Immigrant Petitions
Effective June 29, 2009, USCIS began to accept premium processing requests for I-140 Immigrant Petitions filed in the EB-1 Extraordinary Ability, EB-1 Outstanding Researcher and Professor, EB-2 Member of Professions with Advanced Degrees or Exceptional Ability (not seeking a national interest waiver), and EB-3 Basic Degree Professional or Skilled Worker categories. For many foreign nationals seeking permanent resident status, an employment-based I-140 Immigrant Petition approval is necessary before they can advance permanent resident status.
Premium Processing Service is not available for the EB-1 Multinational Executives and Managers and EB-2 National Interest Waiver categories. Under the USCIS Premium Processing Service, USCIS guarantees that for an additional $1,000 premium processing fee it will issue an Approval Notice or, where appropriate, a notice of intent to deny or a request for evidence, or it will open a fraud investigation within 15 calendar days of receipt of the Premium Processing request.
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H-1B Category Still Open for Business
It still is not too late to file an H-1B petition for a cap-subject employee. As of June 26, 2009, approximately 44,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. The regular limit (for non advanced degree cases) is 65,000 H-1B approvals per year. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.
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U.S. Naturalization Rates Rise
The U.S. Department of Homeland Security (DHS) has reported that the naturalization rates among eligible permanent residents has risen to record levels during recent years. Cumulative naturalization rates through 2005 approached 60 percent for lawful permanent residents who had attained such status at least 20 years earlier. During the period between 2006 and 2008, a total of 2.4 million permanent residents became U.S. citizens. The general rule is that permanent residents must have held that status for five years before applying for naturalization if they meet certain other preconditions. Permanent residents who gained such status through marriage to a U.S. citizen need to have been a permanent resident only for three years to apply for naturalization in most circumstances. The fact that the immigration laws continue to tighten especially with the ability of DHS to initiate removal (deportation) proceedings against permanent residents may be helping to fuel the rise in naturalization rates, as may be the fact that U.S. citizens do not risk losing their U.S. immigration status if they are assigned overseas. Other benefits include being able to tap into a greater array of benefits and the ability to sponsor some foreign relatives.
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USCIS Work Site Audits on the Rise
As anyone involved in the business immigration world knows, U.S. Citizenship and Immigration Services (USCIS) worksite audits have been on the rise in recent years, particularly regarding H-1B specialty occupation worker and L-1 intracompany transferee visa cases. USCIS auditors are making worksite visits with the principal purpose of determining if the petition is legitimate and if the employer or foreign national submitted any information or documentation that contains a material misrepresentation or constitutes immigration fraud. It is important for petitioning companies to carefully review the information and documentation to be submitted as part of an immigration case and ensure that the information and evidence are both accurate and truthful. While the employer's efforts to marshal evidence to make a case for an immigration benefit is important, it is critical to review such information in its totality to ensure that disclosure is sufficient to accurately portray the relevant facts that USCIS will review in making its decision.
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USCIS Acknowledges Increased RFE and Denial Rate Trends While Refusing to Issue Figures
It comes as no surprise that U.S. Citizenship and Immigration Services (USCIS) has acknowledged the recent rise in Requests for Evidence (RFE) and denial rates of employment based petitions. Recent trends include the following:
- higher rates of H-1B RFEs where the employee will work as a contractor or at an off-site location;
- L-1B RFEs where the employee is younger, has relatively less experience and education and where he or she has held one job at the employer's foreign affiliate. This is particularly true in professions where the job title may be such that the position seems common, such as software engineer or market analyst; and
- cases in the O-1 and EB-1 extraordinary ability and EB-1 outstanding researcher categories.
Many of the RFEs are vexing because they contain boilerplate language that does not provide the employer with a clue about what USCIS is not convinced enough about to approve the petition. While there is a limit on the advance action that an employer can take to avoid such RFEs or denials (no one has a crystal ball on how a particular USCIS officer will react to a particular case), the best approach is to try to identify supporting documentation, particularly documentation that comes from a source outside the employer, to substantiate the key arguments being made. Unfortunately, these days even well-documented cases are more often the subject of RFEs.