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December 11, 2007 Immigration News Update from Miller Mayer
Click for a Printable Version of this Article
(http://www.millermayer.com/): 1. No-Match Letters Will Not Be Sent This Year, SSA Says; DHS Will Revise Rule 1. No-Match Letters Will Not Be Sent This Year, SSA Says; DHS Will Revise Rule A Social Security Administration (SSA) spokesperson reportedly has stated that the SSA will not send out no-match letters this year to employers, in response to an October 10, 2007, preliminary injunction from the U.S. District Court for the Northern District of California that enjoined and restrained the Department of Homeland Security (DHS) and the SSA from implementing the final rule, "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." The preliminary injunction did not preclude the SSA from sending out its traditional no-match letters without the final rule language. According to sources, the SSA is unlikely to send out no-match letters until spring 2008 at the earliest, when the DHS has said it plans to revise the rule. SSA said it did not have sufficient time to revise the no-match letter in 2007. The SSA sends no-match letters, which detail discrepancies between SSA data and information sent in by employers, to approximately 138,000 employers each year concerning as many as nine million employees. 2. USCIS Releases New I-9 Form U.S. Citizenship and Immigration Services (USCIS) has revised the I-9 Employment Eligibility Verification Form, to be required beginning December 26, as a first step toward achieving the document reduction goals under the Illegal Immigration Reform and Immigrant Responsibility Act and "as a further step in its ongoing work toward reducing the number of documents used to confirm identity and work eligibility," the agency said. * Certificate of U.S. Citizenship (N-560 or N-561) One document was added to List A of the List of Acceptable Documents: * Unexpired Employment Authorization Document (I-766) * I-688, I-688A, I-688B, I-766 Employers should begin using the amended I-9 "(Rev. 06/05/07)N" immediately for all individuals hired on or after November 7, 2007. The Department of Homeland Security (DHS) said it "recognizes that employers should be afforded a period of time to transition to the amended Form I-9." The DHS therefore will not seek penalties against an employer for using a previous version of the I-9 during a transition period ending on December 26, 2007. After the transition period, employers who fail to use the revised I-9 may be subject to penalties. Employers only need to complete the new I-9 for new employees. Employers do not need to complete new forms for existing employees, but employers must use the revised I-9 when their employees require reverification. The new I-9 form is available at http://www.uscis.gov/files/form/i-9.pdf. The updated Handbook for Employers (M-274) is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf. Details about the revised I-9 are available at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf. A reminder with the deadline is available at http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf. The USCIS Federal Register notice dated November 26, 2007, is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-5790.pdf. Copies of the documents that are acceptable under the new I-9 requirements may be obtained in a brochure, "Guide to Selected U.S. Travel and Identity Documents" (M-396), which may be ordered in bulk from U.S. Customs and Border Protection, National Distribution Center, P.O. Box 68912, Indianapolis, IN 46268; fax: (317) 290-3046. 3. Basic Pilot Findings Released Recent findings about the Web-based Basic Pilot program, now called E-Verify, have been released. Among other things, the new report notes that employers are satisfied with many aspects of the new online version of the former Basic Pilot program. Also, the accuracy of the U.S. Citizenship and Immigration Services (USCIS) database used for verification has "improved substantially" since the start of Basic Pilot. Further improvements are needed, however, the report notes, especially if the program is mandated nationally. Most importantly, the report states, the database used for verification "is still not sufficiently up to date to meet the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] requirement for accurate verification, especially for naturalized citizens." The report notes that USCIS and the Social Security Administration accommodate this problem by providing for a manual review of these cases, which is "time-consuming and can result in discrimination against work-authorized foreign-born persons during the period that the verification is ongoing, if employers do not follow procedures designed to protect employee rights." E-Verify allows employers to get automated confirmation of a newly hired employee's work authorization after an Employment Eligibility Verification (Form I-9) has been completed. Employers who sign up to participate complete the I-9 process as usual, but then enter and submit I-9 information through a Web-based computer program to the Social Security Administration (SSA) database. If the SSA does not have sufficient information to confirm work authorization status, queries are sent to U.S. Citizenship and Immigration Services (USCIS) for confirmation. If more information is required to complete the confirmation process, the employer is asked to have the employee contact the SSA or USCIS to provide the needed information. The report, which includes recommendations, is available at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf. Related materials are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89abf90517e15110VgnVCM1000004718190aRCRD. 4. Nonimmigrant Visa Delays Caused by Electronic Verification Requirement According to a Department of State cable (No. 155679) sent to the field on November 13, 2007, consular posts are now able to access the details of approved nonimmigrant visa petitions in a new report called "PIMS" (Petition Information Management Service). The Kentucky Consular Center (KCC) has stopped e-mailing scanned copies of approved petitions to posts. The electronic PIMS record created by the KCC will now be the primary source of evidence to be used in determining petition approval. This applies to all nonimmigrant petition-based visa categories (H, L, O, P, and Q). The PIMS Petition Report contains a record of all petitioners recorded by the KCC as having approved petitions since 2004. In addition, many of the records contain information from KCC's Fraud Prevention Unit. Reportedly, this unanticipated change has resulted in delays at many posts from interview to visa issuance for these categories. 5. USCIS Releases List of EB-5 Regional Centers U.S. Citizenship and Immigration Services recently released an updated list of active approved EB-5 "Regional Centers," which are public or private entities approved to participate in the EB-5 immigrant investor program. The Regional Center program makes the investor program useful for those unable to invest the full $1 million by allowing $500,000 investments that require minimal hands-on involvement and are useful for those who do not have the time or resources to qualify their own business for this permanent residence program. The list, current as of October 2007, is available at http://www.ilw.com/immigdaily/news/2007,1116-Eb5centersrevised.pdf. For more about EB-5 immigrant investor visas generally, go to http://www.millermayer.com/resources/immigrant/eb5cont.html. 6. DHS to Begin Requiring 10 Fingerprints at Ports of Entry The Department of Homeland Security (DHS) is now requiring 10 fingerprints, instead of just two, from international visitors who fly into Washington Dulles International Airport. The US-VISIT requirement will be expanded to nine additional airports next spring: * Boston Logan International Airport By the end of 2008, the DHS plans to deploy the expanded fingerprint system to 107 other airports and to begin collecting 10 fingerprints at other ports of entry. The Department of State currently uses 10 fingerprint scanners at most of its visa issuing posts and will complete deployment worldwide in the next few months. 7. DHS Converting Checks into Electronic Transfers for I-765 The Department of Homeland Security is now converting funds from checks into electronic funds transfers for the Application for Employment Authorization (Form I-765). Checks should be made payable to "U.S. Department of Homeland Security." The DHS notes in the instructions to the form that "[y]ou will not receive your original check back. We will destroy your original check, but we will keep a copy of it. If the EFT [electronic funds transfer] cannot be processed for technical reasons, you authorize us to process the copy in place of your original check. If the EFT cannot be completed because of insufficient funds, we may try to make the transfer up to two times." In the past, sources noted, the receipt number could be retrieved from the cancelled check to track the application if the receipt got lost in the mail. 8. Target and Whole Foods Market Charged with Discriminating Against Immigrant Workers The Legal Aid Society - Employment Law Center (LAS-ELC) recently filed two employment discrimination charges with the Department of Justice against the Target Corporation and Whole Foods Market, alleging that the companies illegally fired and suspended, respectively, two immigrant workers, even though they had presented clear evidence of their authorization to work in the U.S. Target allegedly terminated an employee who is authorized to work under Temporary Protected Status (TPS), and Whole Foods allegedly suspended for 30 days without pay an employee who is a naturalized U.S. citizen. 9. State Dept. Issues Final Passport Rule The Department of State has issued a final rule that reorganizes, restructures, and updates passport regulations. The Department said it issued the rule "to make [the regulations] easier for users to access information, to better reflect current practice and changes in statutory authority, and to remove outdated provisions." In general, the Department said, the revisions do not mark a departure from current policy. Rather, the Department's intent is "to bring greater clarity to current passport policy and practice and to present it in a less cumbersome way." The final rule, which includes comments and responses, is available at http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/E7-22461.pdf. Because issues regarding passport fees and the passport card are addressed in a separate rulemaking, the Department said it will respond to comments on those issues at a later time. 10. China, India Second Preference Cut-Off Dates Retrogress; Other Projections The Department of State's Visa Office announced in the latest Visa Bulletin that the China-mainland born and India employment second preference cut-off dates both will retrogress in December. The Department said the retrogression is a direct result of extraordinarily heavy applicant demand for numbers, primarily by U.S. Citizenship and Immigration Services offices for adjustment-of-status cases. Additional retrogressions cannot be ruled out during the second quarter of the fiscal year, which begins in January 2008, the Department noted. The Department also made the following projections based on current demand patterns, which could change. "Under no circumstances should they be used as a basis for making any formal plans prior to the announcement of the monthly cut-off dates," the Department warned. * Employment Preferences - Worldwide and Philippines: * Employment Preferences: China-mainland born and India: The Visa Bulletin for December 2007 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_3841.html. 11. New Report Highlights Economic Impact of Immigrants in NYS The Fiscal Policy Institute has released a new report regarding the economic impact of immigrants in New York state. The report was featured in a New York Times article published on November 26, 2007. The report demonstrated the vital role immigrants play in the state economy. According to the report, immigrants contribute nearly one-fourth of the economic output of New York State. In upstate New York, they are overrepresented in some of the most critical occupations, including higher education and health care. The New York Times article is available at http://www.nytimes.com/2007/11/26/nyregion/26report.html?_r=1&oref=slogin. The report is available at http://www.fiscalpolicy.org/immigration2007.html 12. Attorney Stephen Yale-Loehr featured in Cornell Alumni Magazine The Cornell Alumni Magazine has published an article about the asylum law clinic that Miller Mayer attorney Steve Yale-Loehr co-directs at Cornell Law School. "Many people don't realize that unlike in criminal cases, there's no constitutional right to counsel in immigration proceedings," says Mr. Yale-Loehr. "But too often in our immigration system, the most complex cases involve the people who can least afford a lawyer." The asylum law clinic works to help close that gap. The article is online at http://cornellalumnimagazine.com/Currentissue/features/Feature2.asp 13. Success Story: National Interest Waiver Approved for X-ray Imager Attorney Rosanne Mayer recently received approval for a national interest waiver green card for a scientist involved with X-ray imaging with both engineering and human health applications. Specifically, the applicant is an expert in the field of Multiphase Flow and Heat Transfer Science, a sub-field of nuclear engineering. His credentials include working at one of the nation’s leading laboratories along with academic publications, presentations, and membership in professional associations. Most impressively, he has made groundbreaking innovations in the field for fuel efficiency and imaging techniques. Several leaders in the field, including two independent experts, attested to the fact that his research and innovations are leading the field and that his unique abilities and training put him in the top tier of his field of expertise. For more on national interest waiver green cards, go to http://www.millermayer.com/resources/immigrant/eb2resources.html. 14. Immigration Group’s Holiday Photo Happy Holidays from Miller Mayer! To see the Miller Mayer Immigration Group holiday greeting card for this year, please follow this link: http://www.millermayer.com/holiday_card.htm. 15. The Firm Speaks Attorney Carolyn S. Lee recently spoke at an Investor Visas Workshop in New York City. Sponsored by www.ilw.com, the panel fielded questions from those interested in getting involved in the EB-5 immigrant investor visa program. 16. Immigration Processing Times Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: USCIS Service Centers: https://egov.uscis.gov/cris/jsps/ptimes.jsp Department of Labor: http://www.foreignlaborcert.doleta.gov/times.cfm Some of the information in this issue also comes from the Academy of Business Immigration Lawyers (ABIL). Steve Yale-Loehr is a founding member of ABIL, the think tank of premier immigration counsel. ABIL's web site is: http://www.abil.com/ For general information, visit our web site at http://www.millermayer.com/ The usual required legal disclaimers (we ARE attorneys, after all): Transmission of this information is not intended to create, and receipt by you does not constitute, an attorney-client relationship. The information in this newsletter is for general purposes only, and is not intended as legal advice for any particular situation. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Prior results do not guarantee a similar outcome. To unsubscribe to this newsletter, email mailto:gjh@millermayer.com. Please type "unsubscribe to millermayer.com immigration newsletter" in your subject line.
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