December 2, 1999

Two reasons make us worry that the INS may slow down its processing of H-1B and other business-related visa applications. First, as we have reported in the past, the INS issued too many H-1B visas last fiscal year. The INS has hired an outside auditor to determine the exact amount of the over count. As a matter of caution, the INS may hold H-1B adjudications temporarily to await the results of the audit and to make sure no overage occurs again. In fact, we have already heard a rumor that the INS is holding H-1B applications filed after October 25.

Second, the INS has issued national processing time goals for most visa petitions. While INS adjudication of H-1B visa petitions have generally kept within the guidelines, other visa petitions have not. Rumors abound that the INS service centers will pull adjudicators from the business product lines to help catch up in other areas.

The moral of this tale: file your visa petitions as far ahead as possible!

The U.S. State Department has issued the following announcement:

"For U.S. Embassies and Consulates abroad to be available to handle possible Y2K emergencies involving U.S. citizens overseas, public immigrant visa services will be suspended during the first 2 weeks of 2000, and non-immigrant visa services will be suspended in the first 2 business days on January 2000. Please contact the U.S. Embassy or Consulate concerned to verify the availability of the service requested."

If you will be traveling over the holidays and will be applying for a new U.S. visa, contact the U.S. Embassy or Consulate to verify their service hours BEFORE you depart the United States. To locate the web sites of U.S. embassies and consulates abroad, visit http://travel.state.gov.

Prompted by calls from immigrant rights advocates and confused employers, the Social Security Administration (SSA) has begun to review its policy of sending letters to employers listing the Social Security Numbers (SSNs) of employees whose information does not match the SSA database. Many employers are confused about what these letters mean about their obligations to verify employees’ employment eligibility. Others have used these "no-match" or "mismatch" letters to retaliate against union activities at work sites and to terminate suspected undocumented workers. To further compound the situation, many immigrants and employers believe that the SSA is working with INS on enforcement actions.

Several immigrant rights organizations and labor unions met with SSA officials recently to urge them to stop sending these letters to employers. Because of the potential for abuse and misuse of the information, advocates urge the SSA to contact employees directly when there is a mismatch. The SSA did not agree with this position, indicating that they will use any means available to obtain correct information. However, agency representatives noted they would review the letters to make sure they do not speak to the issue of individuals’ immigration status.

The SSA also stated that any SSA notification of a SSN mismatch is not actual notification that a worker may be undocumented, since there are many reasons a mismatch may occur, including clerical error, name change by the employee, or transliteration of non-Roman names. The SSA also has added language explicitly indicating that employees are not required to show employers their social security cards. Such a requirement could violate the document abuse provisions of the Immigration Reform and Control Act of 1986, which both enacted the employer verification program and made it illegal to ask any individual for more or different documents than are necessary to prove employment eligibility. Although the new letters are an improvement, they still strongly infer that an employer should attempt to see an employee’s social security card to verify the information, putting both employers and employees in a delicate situation.

The SSA also addressed the perception that SSA notification is equivalent to "constructive knowledge" of undocumented employment, and that the SSA is working with the INS on enforcement. The SSA stated emphatically that it is not cooperating in INS enforcement actions. While the SSA is required by law to work with the INS on the Employment Verification Basic Pilot, it is instructing its field officers not to encourage participation in this pilot as a means to correct social security numbers. They have urged participation in the SSA’s own Enumeration Verification System, which does not include any information about work authorization status. The SSA also has drafted new training instructions to its field agents to sensitize them to this issue.

The Equal Employment Opportunity Commission (EEOC) has issued enforcement guidance to its offices allowing undocumented workers to pursue discrimination complaints against employers. Under the guidance, undocumented workers are entitled to the same discrimination protections and remedies as are all other workers.

One of the most controversial issues regarding the new guidance has to do with the ability of EEOC to order a company to hire or reinstate an undocumented worker. EEOC states that if it were to order initial employment of a worker, if the employer knows the worker is ineligible, the worker must satisfy I-9 requirements within an undefined "reasonable time." (However, current INS regulations require all employees to fulfill I-9 requirements within 3 days.) The guidance also seems to indicate that the employer may be required to re-hire the employee even if it knows the individual is undocumented, but the EEOC has subsequently indicated that this was not the intent. We await further clarification from the EEOC.

Undocumented workers also may be eligible for back pay and damages. Quoting case law that says that back pay accrual should be suspended during periods that the worker was "not lawfully entitled to be present and employed," the EEOC nevertheless concludes that back pay accrual would be suspended only during periods when the worker is out of the country. Supposedly, the back pay and reinstatement remedies are unavailable in "mixed motive" cases (i.e., where the employer shows that it would not have employed the individual after learning of the person’s undocumented status). However, attorneys’ fees and costs, as well as injunctive relief, are available in mixed motive cases.

In addition, if an employer appears to have acquired information about a worker’s status after commencement of a complaint and acted on that information, the EEOC will investigate for possible illegal retaliation.

In late 1989, INS began issuing "Green Cards" (Form I-551 Alien Registration Receipt Card) with 10-year validity periods and specific expiration dates. The 10-year period now is being reached, and cards are beginning to expire. Those people with expiring green cards may apply for replacement up to 6 months in advance of the expiration date. INS estimates that 660,000 lawful permanent residents will need to renew their green cards within the next twelve to fourteen months.

It is important to note that when the green card expires, the lawful permanent resident will NOT lose status. However, renewal is necessary to maintain evidence of status and avoid problems when seeking employment, benefits or re-entry into the United States after travel abroad. INS will issue temporary proof of status by stamping an applicant's passport. For applicants without a passport, INS will issue a temporary document with photograph. This temporary proof of status will be valid for one year.

Renewal procedures are outlined in a recent memo from the INS, as summarized below.

The September 29th INS memo from Michael A. Pearson, Executive Associate Commissioner in the Office of Field Operations, states that INS has developed a comprehensive plan to accept and adjudicate green card renewal applications--implementation of which is expected to begin in 2000. Until implementation, INS will accept and process Form I-90 applications at District Offices and sub-offices in accordance with existing policies and procedures. The September 29th memo provides additional guidance for green card renewal until the new comprehensive plan is implemented.

Application Process (Mail-in versus Walk-in): INS will allow mail-in applications in only a selected number of district offices. Residents of all other jurisdictions must apply in person. Walk-in applicants should present the expiring or expired Form I-551, a completed Form I-90, appropriate fee, additional identification, and two photographs (3 photos if the applicant is not in possession of a passport). Applicants may apply by mail at the New York, Newark, and Chicago District Offices. In addition, San Francisco, San Antonio, Houston and El Paso will be accepting mail-in applications. Applicants should mail the completed Form I-90, the appropriate fee, a photocopy of the front and back of the expiring or expired Form I-551, and two photographs. While district offices will schedule interviews for renewal applicants, but the actual processing will take place at the Service Centers.

Fingerprints: Neither the press release nor the field operations memo mentions whether fingerprints for FBI checks will be required. However, the field operations memo indicates that, at least for now, existing procedures will be used. Since 8 CFR § 264.5(e)(3)(i) seems to require fingerprints for the filing of Form I-90, one should assume that FBI fingerprints will be required, unless and until INS states otherwise. If FBI fingerprints are required, it would be expected that existing appointment procedures will be followed.

INS has notified carriers that permanent residents in possession of an expired green card with a 10-year expiration date should be permitted to board if the expiration date would be the only reason preventing them from traveling. INS officers at air ports of entry can process a Form I-90 application, but only at the time of arrival, and if the permanent resident so chooses. Sea ports will be unable to process applications. The ability of land port officers to process I-90 applications will be at the discretion of the applicable District Director.

Besides the impending processing backlogs, the green card renewal process raises several considerations regarding preservation of status. Certain criminal convictions can lead to the loss of permanent resident status (and ultimately to removal) as can an INS determination that permanent residence was abandoned as a result of a lengthy absence from the U.S. Thus, as with all contacts with INS by individuals with status vulnerabilities, strategies for preserving resident status will need to be carefully considered.

The Department of Labor (DOL) had proposed to move administration of the foreign labor certification programs from the Employment and Training Administration (ETA) to the Employment Standards Administration (ESA). Thanks to the efforts of Senators Spencer Abraham (R-MI), Chair of the Senate Immigration Subcommittee, and Arlen Specter (R-PA), Chair of the Senate Labor, HHS Appropriations Committee, and Representative John Porter (R-IL), Chair of the House Labor, HHS Appropriations Committee, this effort was defeated this year. Many employers opposed this move, arguing that under ESA (which enforces employer compliance), the program would be even more unmanageable than currently. While rejecting this transfer, both committees also recognized the need to reform the labor certification programs. DOL has proposed an automated labor certification process, known as PERM, to address ongoing concerns about growing backlogs, but has done little to date on this proposal. Both Committees directed the agency to take steps to shorten processing times and eliminate backlogs

DOL recently announced that it has moved the Foreign Labor Certification Division within ETA. Formerly a part of the U.S. Employment Service, under John Beverly, the Division is now part of the Office of Workforce Security (formerly the Unemployment Insurance Organization), headed by Grace Kilbane. According to DOL, this change will enable the agency to comply with a training bill that was passed last year, and should have no impact on daily operations.

With long backlogs continuing, and even increasing, the Department is coming under increasing pressure to propose a major reengineering of the labor certification programs. While the PERM program has not received top priority recently, it and other proposed changes are sure to be readdressed in coming months. We will keep you updated.

_________

That’s it for this issue. Some of the material in this issue comes from the American Immigration Lawyers Association (AILA). We thank c for permission to use their material.

For answers to any of your immigration questions, contact Hilary Fraser (htf@millermayer.com), Rosie Mayer (rma@millermayer.com), or Steve Yale-Loehr (syl@millermayer.com) at True, Walsh & Miller.