Click Here for a PDF of the Immigration Insights - August Issue
New Passport Card Can Be Used for I-9 Verification
U.S. Citizenship and Immigration Services has announced that the new Passport Card can be used for employment eligibility verification purposes on Form I-9. The Passport Card is considered an I-9 Form "List A" document, which proves both identity and work authorization. The Passport Card is an alternative to traditional U.S. passport books and can be used only for land and sea travel between the United States and Canada, Mexico, the Caribbean and Bermuda. The Department of State has received and adjudicated well over 350,000 applications for the U.S. Passport Card so human resources professionals who are responsible for I-9 verification should be aware of and familiar with its use, appearance and layout. The Department of State began production of the card on July 14, 2008. For more information regarding the Passport Card please Click Here. In addition, the Department of State also provides examples of the appearance and layout of the card. You can view the examples of the appearance and layout of the card by Clicking Here.
________________________________________________________________________________
Employment-based 3rd Preference Visa Availability for October - Retrogression?
Via its monthly Visa Bulletin update, the U.S. government announces the cut-off dates for each immigrant preference category to regulate the number of foreign nationals who can file for permanent residence as well as those who are eligible for final approval under the immigrant quota system. The September 2008 Visa Bulletin reflects very little movement in the employment-based preferences. The employment-based 2nd categories for India and China each will advance two months to August 1, 2006. Of considerable interest is the Department of State (DOS) discussion of projected visa availability in October, 2008 for the employment-based 3rd category. Previously, in the August Visa Bulletin, the DOS announced that the employment-based 3rd category would be "unavailable" for the remainder of Fiscal Year 2008 because the annual limits had been reached. DOS suggested that the start of the new fiscal year (October) would return employment-based 3rd cut-off dates to those that existed in June. Click Here for archived Bulletins. In the September Visa Bulletin, the DOS stated that "continued heavy demand in those [EB-3] categories may require the establishment of cut-off dates which are earlier than those which had applied in June. A formal decision determination [SIC] of the October cut-off dates will not be possible until early September." While it is impossible to predict where the cut-off dates will ultimately fall, it appears likely that there may be some retrogression. The October Visa Bulletin will be issued in mid-September.
________________________________________________________________________________
Update on PIMS Delays and Need for Original Approval Notices at Visa Interviews
PIMS (Petition Information Management Service) is an electronic system set up to provide U.S. consular posts with notification for petition approvals. It is the only source of evidence to be used in the issuance of visas in H, L, O, P and Q nonimmigrant visa classifications. A visa applicant may not be issued a visa until the consular post is able to verify the petition approval in PIMS. In order for the petition to exist in the PIMS system, U.S. Citizenship and Immigration Services (CIS) sends to the U.S. State Department’s Kentucky Consular Center (KCC) a duplicate original of the petition documents filed by the petitioner with CIS. The KCC then records the petition in the PIMS system which can be accessed by the consular posts. If the petition has not been recorded in the PIMS system, the consular posts must make inquiries regarding the petition and often visa issuance is delayed. In March 2008, after many applicants experienced delays at consular posts, CIS and the State Department (DOS) came to realize that petitions for changes of status, extensions of stay and amendments were not being entered into the PIMS system. DOS was under the mistaken assumption that CIS forwarded all petitions to the KCC while the reality was that CIS only forwarded petitions requesting "consular notification." In order to resolve this issue, CIS started to ask petitioners to submit duplicate, originally signed petitions with their petitions for extensions, changes of status or amendments. Upon approving a petition, CIS now forwards this duplicate original to the KCC for entry into PIMS.
While this new process has for the most part solved the problems for the petitions submitted after March 2008, there is still the matter of the petitions filed prior to this March guidance. According to the American Immigration Lawyers Association, DOS has instructed all consular posts to implement procedures by which PIMS is checked prior to the visa interview in an effort to decrease delays. For example, many posts require the petition receipt number in order to schedule an interview. Thus, these posts should be able to check PIMS and query the KCC, if necessary, before the applicant even arrives at the consular post for his or her interview. While this is a step in the right direction, we would still caution visa applicants (particularly those whose extension, change of status or amended petitions were approved before late March 2008 or if the petitioner did not file a duplicate original with CIS) that visa issuance could be delayed.
Finally, DOS has updated its website to confirm that "the I-797 is no longer needed for the visa applicant's interview, since petition approval is now verified in the Department of State's system called Petition Information Management Service (PIMS)." Please note that while DOS has adopted this procedure, U.S. Customs and Border Protection has not. Applicants applying for admission at a port-of-entry may still be required to have an original (Form I-797) approval notice issued by CIS.
________________________________________________________________________________
U.S. House of Representatives Reauthorizes E-Verify for Five More Years
On August 1, 2008, the U.S. House of Representatives passed the "Employee Verification Amendment Act of 2008," a bill reauthorizing the “E-Verify” electronic employment eligibility verification program for five more years. The bill passed by a vote of 407 to 2. For employers, this means that all of the State and Local legislation passed over the last few years mandating participation in the E-Verify program can remain in effect without interruption for five more years. Also, this eliminates a potential road block for the proposed rule pursuant to Executive Order mandating E-Verify for all federal contractors.
In passing the Employee Verification Amendment Act of 2008, Congress placed some additional responsibilities on the agencies administering the E-Verify program, the Social Security Administration (SSA) and the Department of Homeland Security (DHS). The agencies must enter into an agreement to provide funds to the SSA for the full costs for acquiring and maintaining equipment and for responding to individuals who receive a tentative nonconfirmation, which is a notification from the E-Verify system that the computerized government records cannot confirm that the individual is authorized to work in the United States. Furthermore, the agencies must provide an annual accounting and reconciliation of the actual costs of the program, which will be reviewed by the Offices of Inspectors General for SSA and DHS.
Congress also mandated that the Government Accountability Office (GAO) conduct two studies of the E-Verify program: (1) to determine and analyze the causes of erroneous tentative nonconfirmations; the processes by which they are remedied, and the effect of such erroneous tentative nonconfirmations on individuals, employers, and federal agencies; and (2) to examine and provide a report regarding the direct and indirect costs to small businesses (50 employees or less) to participate in the E-Verify program and what steps are being taken to minimize the economic impact on those employers.
________________________________________________________________________________
Electronic System for Travel Authorization is Now Online
While the Electronic System for Travel Authorization (ESTA) is not mandatory at this time, the program went online on August 1, 2008 and allows Visa Waiver Program (VWP) travelers to participate voluntarily. As described in our June 2008 Immigration Insights, ESTA will determine, in advance of departure, whether a traveler is eligible to travel to the United States under the VWP and whether such travel poses a law enforcement or security risk. If the traveler does not pose a risk, he or she will receive an electronic travel authorization prior to boarding a U.S.-bound airplane or cruise ship. Interested travelers should visit https://esta.cbp.dhs.gov/esta.
ESTA is scheduled to become mandatory on January 12, 2009 but the final rule setting this date has yet to be published. It is expected to be published in mid-November.
________________________________________________________________________________
All Foreign Nationals to Provide 10 Fingerprints for Nonimmigrant Visas In late August 2008, the Department of State published
a final rule requiring all applicants, with certain exceptions, to provide a set of 10 fingerprints as part of applications for U.S. nonimmigrant visas. This rule should have no real effect on applicants because the Biometric Visa Program has been introduced gradually over the last 5 years and is in place at all posts. All U.S. visa issuing posts began collecting scanned fingerprints from nonimmigrant visa applicants in October 2004. The fingerprints are compared to fingerprint scans taken at the U.S. port of entry to prevent the use of U.S. visas by impostors or those wanted for more serious offences. In June 2005, the Homeland Security Council decided that the process should transition from two fingerprints to ten fingerprints, which allowed consular officers to verify identity, conduct background checks, and determine whether there is any information that is relevant to the issuance of the visa. The electronic fingerprinting process is done at the visa section located within U.S. consulates and embassies on the date of the applicant's visa interview. The entire fingerprint collection process should takes a couple of minutes or less.
________________________________________________________________________________
No-Match Letter is Not Constructive Knowledge that an Individual is an Unauthorized Worker The U.S. Court of Appeals for the Ninth Circuit recently held in
Aramark Facility Services v. Service Employees International Union that the receipt of a Social Security Administration "no-match letter" does not serve as constructive knowledge that an individual is unauthorized to work. In this case, Aramark received no-match letters for 48 employees and provided those employees with three days to correct the mismatch by providing a new Social Security Card or documentation to show that the correction process had been started. After approximately one week, Aramark fired the 33 employees who did not provide the documentation Aramark had requested.
The court reviewed a single issue - whether the no-match letters and the fired employee's responses put Aramark on constructive notice that it was employing undocumented workers. The court held that constructive knowledge is to be "narrowly construed" in the immigration context and "requires positive information of a worker's undocumented status." The court ordered that the terminated workers be reinstated. After the decision, the court denied a request for an
en banc review before the full court.
For employers, this decision is important because it is a clear statement that merely receiving a Social Security Administration no-match letter is not enough to terminate an employee for being an unauthorized worker. However, it is important to note that this decision does not resolve the ongoing litigation arising from the Department of Homeland Security's (DHS's) "Safe Harbor" regulations published last year. In the "Safe Harbor" rule, DHS outlined a series of steps an employer should take upon receipt of a no-match letter, including giving the employer and employee 90 days to resolve the mismatch. The "Safe Harbor" rule litigation has yet to been resolved.