The Obama Administration is considering ways that it could act without Congressional approval  – some options to provide immigration relief, should comprehensive immigration reform legislation not pass.

In an internal memo to Alejandro N. Mayorkas, the Director of USCIS, from the Offices of Chief Counsel and Policy and Strategy lay out some suggestions that USCIS might undertake within the current structure of the law without having to wait for Congress to pass legislation. Some of the key suggestions include the following:

1. Provide work authorization for H-4 dependent spouses if the H-1 applicant has an application for permanent residence and has extended beyond the 6 year limit. Currently H-4 dependents have to wait for the filing of an I-485 application to get work authorization, however, that can’t be done unless the priority date is current.

2. Expand the ‘dual intent” doctrine to non-immigrants such as TN’s, F-1, O and P and E visa holders. This could be especially helpful for applicants in TN status (such as registered nurses) who have delayed filing an I-140 petition because of concerns about traveling since TN is not currently a “dual intent” status.

3. Create a grace period ranging from 45 to 90 days for most of the non-immigrant categories. This would be especially helpful for H-1B applicants who wish to do an H-1B transfer if they lose a job and soon find a new job.  Currentf law holds the person to be “out of status” and subjects the H-1B applicant to returning to their home country to get a new visa stamped.

4. Eliminate unlawful presence (3 year and 10 year bar) for adjustment of status applicants. This would allow applicants who are subject to the bar on re-entry to freely travel and re-enter the U.S. to resume their application.

5. Expand premium processing to all employment-based cases. USCIS noted that they do not have a current backlog in cases so they are equipped to expand their premium processing unit.

6. Utilize deferred inspection to applicants whose removal is not in the public interest. This allows a “stay” in the U.S. to buy time for the applicant to have some form of legislative relief in the future.

7. Expand the EB-5 investor visa program. This program provides permanent residence to foreign nationals who invest in a U.S. business that creates at least 10 jobs, however, the program has been underutilized. The USCIS views this program as an important tool to revitalize the U.S. economy.

8. Extend work authorization on EADs when an extension is filed. This would allow automatic 240-day work authorization for an applicant who files an EAD extension before the current one expires. Currently the renewed EAD must be approved by the time the current one expires for the foreign national to continue to lawfully work.

USCIS believes these options are immediately at their disposal or can be quickly implemented through notice in the Federal Register based upon current authority. There is no word yet whether USCIS will implement these suggestions.

Supporters of comprehensive immigration reform are certain to welcome any effort by the Obama administration to unilaterally open pathways to citizenship for many currently in the country illegally. But the draft is also sure to outrage immigration-restriction groups.

Christopher Bentley, a USCIS spokesperson, said that internal memos help the agency “do the thinking that leads to important changes; some of them are adopted and others are rejected” and that “nobody should mistake deliberation and exchange of ideas for final decisions.”

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, health care, sports, and arts & entertainment, amongst others.

To stay in touch with us, see below.

Blog: http://www.immigrationsolution.net/immigration-solutions-blog/

Podcasts: http://feeds.feedburner.com/ImmigrationSolutionsPodcast

Follow us on Twitter:  http://twitter.com/immigration_biz

LinkedIn: http://www.linkedin.com/in/immigrationsolutions

► Breaking News

• Judge Blocks AZ Law

A federal judge today blocked the most controversial parts of Arizona’s immigration law from taking effect, delivering a last-minute victory to opponents of the crackdown.  The judge also put on hold parts of the law that required immigrants to carry their papers at all times, and made it illegal for undocumented workers to solicit employment in public places.  We link here and here for more on the subject

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NEWS BYTES FOR OUR ARTS, SPORTS AND ENTERTAINMENT CLIENTS:

• Immigration Solutions’ July Sports | Arts & Entertainment News

• Sports Teams and Celebrities Among those Facing Visa Refusals

• Iroquois Lacrosse Team Denied UK Visas

• James Cameron’s offer to help with BP Oil Spill turned down

• NYU  Music Technology Program
  

• US Reversal on Visa Denied to Colombian Journalist

and more

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• Thinking of Applying for US Citizenship?

New Brochure:  http://www.uscis.gov/USCIS/Resources/Citizenship%20&%20Naturalization%20Based%20Resources/G-1151.pdf

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Immigration Solutions provides US and global visa services to individuals and employers throughout the USA and abroad.  We specialize in business immigration and have a depth of experience in the IT, healthcare, arts & entertainment sectors, amongst others.  Our services include complex business visas for investors, multinational managers, skilled professionals and outstanding individuals in science, business, education, athletics and entertainment.  We additionally provide employer compliance consulting services on proper I-9 (Employment Eligibility Verification) auditing, training, and work with our clients to develop compliant immigration policies and procedures.

DHS finalized a regulation that provides greater flexibility for employers to electronically sign and store I-9 forms, which are used by U.S. Immigration and Customs Enforcement (ICE) to verify employment eligibility-eliminating the need for paper filing and streamlining efforts to ensure a legal workforce nationwide.

Employers—who complete and retain the Form I-9 (Employment Eligibility Verification)—may sign the form electronically and retain the form in an electronic format.

More in the final rule:

1)  DHS will allow competing paper and electronic systems:  This clarifies that an employer moving to an electronic system need not create digital images/data related to historical paper forms. However, from some employer’s perspective monitoring two distinct verification systems for compliance may be too difficult a logistical challenge. These particular employers have elected to go entirely electronic to take advantage of the ability to monitor compliance and provide for electronic reminders. We strongly recommend that employers should continue to approach converting paper I-9s to electronic images very carefully, first discussing the benefits as well as the concerns (in particular audit related and privilege issues) with their immigration attorneys.

2)  The final rule reaffirms that employers will not be required to use a specific technology to complete and store I-9 information, so long as the system they use ensures accessibility and they are able to produce a reasonable facsimile or copy of the I-9.

3)  The final rule will also relax the audit trail requirement from the interim rule so that employers no longer have to keep records of when the information is accessed or viewed. Instead, an audit trail will only need to include information on the the initial completion and any subsequent modification to the I-9.

4)  The final rule will also relax the interim rule’s requirement to provide a transaction record to the employee at the time the electronic I-9 is created. Under the rule to be published tomorrow, the employer may “provide or transmit a confirmation of the transaction only if an employee requests it . . . within a reasonable period of time.” Finally, the final rule will remove the mandate that the electronic storage system be searchable “by any data element,” requiring only an indexing system that “permits the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.”

5) Indexing does not require all fields:   The final rule identifies that not all of the “data element(s)” must be searchable, but that the system must provide a sense of “searchability” consistent with the amended 8 CFR Sec. 274a.2(e)(6).

More information about I-9 forms and Employment Eligibility Verification is available on the U.S. Citizenship and Immigration Services website at www.uscis.gov/I-9.

For further guidance on the electronic signing and storage of the I-9, and the changes to the current regulations to assist businesses in complying with the requirements of the law, please visit www.ice.gov or view the Federal Register at www.gpoaccess.gov.

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What can Immigration Solution do for you?

Our firm’s years of experience and knowledge with employer compliance and worksite enforcement issues can assist your business in offsetting the extent of sanctions and other ICE enforcement threats.  Because of this, employer compliance is becoming more complex and enforcement (investigations and audits) is increasing.

In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program. Immigration Solutions has created a package of services and solutions to assist you with your compliance procedures that can be tailored to your specific needs and concerns.  Contact our office should you wish to discuss your audit, training and compliance needs.

We have received many emails and telephone calls regarding the new position taken by the CA Board of Nursing that now requires that an RN have a work authorized social security number in order to apply for licensure.

There is a general misunderstanding concerning this issue; namely, there are social security cards that are issued for identification purposes that do not permit work – and there are SS cards that permit work and are annotated with work authorization.

There are 3 types of Social Security Cards:

1) Unrestricted Social Security Card:  If you are a US citizen or a permanent resident, you are permitted to work with any US employer without permission from a government agency.

2) Restricted Card:  This social security card has an annotation: VALID FOR WORK WITH  USCIS AUTHORIZATION.  This type of card is issued to temporary visa holders such as H-1B, TN, E-3 or L-1 who are working for a US sponsoring employer.  Note that H-4 visa holders are not eligible to obtain a Social Security Number and cannot be employed, but can hold a driver’s license, open bank account(s) and obtain ITIN (see below) for IRS Tax purposes.

3) A Non-Work Social Security Card: This card has the annotation NOT VALID FOR EMPLOYMENT. This card is issued on a limited basis in certain types of situations such as in order to receive federal, state or locally funded benefits or if a state requires it to receive public assistance.

What is an ITIN number? ITIN numbers are for IRS identification and tax purposes and do not authorize work or provide social security benefits.  For more information:  http://www.irs.gov/individuals/article/0,,id=96287,00.html

What is an EIN Number? EIN numbers, also known as FEIN (Federal Employer Identification Numbers) or TIN (Tax Identification Numbers), are issued by the IRS to employers operating in the USA for identification purposes.  In essence, it is the corporate equivalent to a social security number.  It is issued to individual business owners for identification purposes and for paying withholding taxes on their employees.  For more information:  http://www.irs.gov/businesses/small/article/0,,id=98350,00.html

Applying for Permanent Residency:  If you have a pending permanent residency case (I-485) and are in the USA and have filed and received approval of an I-765 Application for Employment Authorization, you can obtain a social security number for work purposes while you case is pending approval.

Consular Processing your Immigrant Visa:  If you have processed your immigrant visa (green-card) outside the USA at a US Consulate, you are entitled to apply for a work authorized SSN card upon entry to the USA.

If you are a Student: If you are an F-1 student who has completed a course of study, USCIS will grant temporary work authorization or training directly related to your course of study.  Optional Practical Training (OPT) can be authorized pre or post-completion of studies. The on-campus Designated Student Officer (DSO) will assist with the application process.  We link to more information concerning OPT.

How to apply for OPT:  http://www.ice.gov/sevis/students/opt.htm Fact Sheet:  http://www.ice.gov/sevis/factsheet/061404emp_fs.htm

Other Resources:

►  To locate a Social Security Office in your area

►  Applying for a Driver’s License

►  Student Fact Sheet on Obtaining an SSN

We have recommended that RN licensure be obtained through states that do not require the above SSN Restricted Card requirements such as NV, TX or AZ.  If your job offer is in the state of California, following approval of your immigration case, you will be permitted to endorse your licensure over to CA.  It is important not to let your CA licensure lapse (expire), otherwise you will be required to re-take the NCLEX exam.  Give yourself plenty of time to endorse to another state if CA will not grant an extension of your current licensure.

Should you wish to consult with our office regarding this matter or any other immigration related issues, please contact our office.

ICE has filed a 60-day notice for a new information collection application with the OMB (Office of Management and Budget) for their IMAGE Program (ICE Mutual Agreement between Government and Employers) that is the education component of the Office of Investigations (OI) Worksite Enforcement program.  The Notice is available here.  Comments will be accepted for 60 days until August 10, 2010, and should be sent to the person named in the Notice.

In an article published on ILW.com on the subject, the author states:

In July of 2006, ICE announced two measures billed as “voluntary partnerships with the government.” The first is a list of what the agency considers to be “Best Hiring Practices.” The second is a voluntary program entitled the “ICE Mutual Agreement between Government and Employers,” also referred to as IMAGE , which it has been working on since at least July of 2005. The government is actively promoting these programs to employers.

What are considered Best Hiring practices?

As part of the ICE Mutual Agreement between Government and Employers, the (IMAGE) program, DHS recommends the following “best hiring practices” as follows:

• Use E-Verify to verify the employment eligibility of all new hires.
• Use the Social Security Number Verification Service (SSNVS) and make a good-faith effort to correct and verify the names and Social Security numbers of the current workforce.
• Establish a written hiring and employment eligibility verification policy (I-9 policy)
• Establish an internal compliance and training program related to the hiring and employment verification process, including completion of the I-9 form, how to detect the fraudulent use of documents in the verification process, and how to use E-Verify and SSNVS.  Require the I-9 and E-Verify process to be conducted only by an individual who has received appropriate training, and include a secondary review as part of each employee’s verification “to minimize the potential for a single individual to subvert the process.”
• Arrange for annual I-9 audits by an external auditing firm or a trained employee not otherwise involved in the I-9 process.
• Establish a procedure to report to ICE credible information of suspected criminal misconduct in the employment eligibility verification process.
• Establish a program to assess subcontractors’ compliance with employment eligibility verification requirements. Encourage contractors to incorporate IMAGE Best Practices and when practicable incorporate the verification requirements in subcontractor agreements.
• Establish a protocol for responding to letters received from federal and state government agencies indicating that there is a discrepancy between the agency’s information and the information provided by the employer or employee (for example, “no-match” letters received from the Social Security Administration).
• Establish a tip line mechanism (e.g., inbox, e-mail) for employees to report activity relating to the employment of unauthorized workers, and a protocol for responding to employee tips.
• Establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination, and to ensure that U.S. citizens and authorized workers do not face discrimination with respect to hiring, firing, or recruitment or referral for a fee because of citizenship status or national origin.
• Maintain copies of any documents accepted as proof of identity and/or employment authorization for all new hires.

Note:  It is important to notice that some of these points listed above have critical content.  We link to the ILW.com excellent analysis of Best Practices and the IMAGE program for employers to carefully consider prior to enrolling in these programs.

Should you require further assistance or consultation regarding these programs, please contact our office.

As reported by the Legal Action Center (AILA).  Broadgate et al. v. USCIS et al., No. 1:10cv00941 (D.C.D. filed June 8, 2010)

Three employers (software developers and IT services firms) and two not-for-profit trade associations are challenging the Neufeld memo in federal district court. The plaintiffs allege that USCIS issued the memo in violation of the Administrative Procedure Act’s notice and comment requirements; that USCIS failed to perform a Regulatory Flexibility Act analysis; that the memo is inconsistent with existing regulations addressing the employee-employer relationship and the term “contractor” and conflicts with the plain language of the INA; and that it is arbitrary and capricious. Plaintiffs ask the court to preliminarily and permanently enjoin USCIS from implementing the memo.

AILA sent a detailed letter to USCIS Chief Council, Roxana Bacon, in which it expressed concern about the substance of the January 8, 2010 H-1B memo and noted that its issuance was in violation of the Administrative Procedures Act’s notice and comment requirements. The letter primarily focuses on recent USCIS decisions that unlawfully find that individuals with controlling or substantial interests in a petitioning U.S. company or its foreign parent company cannot — in most cases — be a beneficiary of a nonimmigrant or immigrant employment-based petition.

We will continue to keep you posted on this topic.

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USCIS Proposes Fee Increase

USCIS has published a Proposed Rule in the Federal Register to increase immigration fees.  The cost of applying for a green card will increase from $930 to $985.  The application fee for a family petition (I-130) will be $420, up from $355.  The cost of an I-140 employment-based petition will rise over $100 and premium processing fees will increase by 22.5%.  The application for employment authorization would increase to $380 from $340. A separate fee for fingerprints and other biometrics with many applications would increase to $85 from $80.  Among several new fees, officials said, will be a $6,230 charge for foreigners proposing to invest $500,000 or more in businesses to create jobs in the United States.

The NY Times reports that Alejandro Mayorkas, director of  USCIS, said the fee increase was necessary because declining applications for documents in the past two years had lowered revenues and left his agency — which is 90% financed by fees — with a budget shortfall of about $200 million for the coming fiscal year.

The increases come as Congress has put off immigration legislation and an Arizona law that makes it a state crime to be in the country illegally goes into effect July 29.

The timing makes Clarissa Martinez wonder what message the fee increases sends to immigrants trying to take a legal path into the country.  “It begs the question of Congress: If we want these people to take these steps, we have to make sure that we’re not pricing them out of their reach,” said Martinez, director of immigration and national campaigns for the National Council of La Raza, a Hispanic civil rights group.

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We have been advised that for employers enrolled in E-Verify that, in conjunction with the redesign of the E-Verify web interface, employers will be required to complete the new on-line tutorial before being able to E-Verify new workers.

You will note, that there will be a sneak preview presentation (registration required) on Thursday June 10th.

For those of you who participated on the Listening Session conference call, USCIS has released the Executive Summary follow-up and recap of the call.  In the Summary, links are provided to a List of Federal Contractors that are enrolled in the FAR E-Verify Program, a link to the revised FAQ’s that can be found on the same page under links and resources.

A Self-Check Initiative will be introduced in December. This initiative will enable anyone to go to the website and run a verification query on him/herself and determine the accuracy of  his/her government record.

The Summary further states that USCIS has surpassed 200,000 registrants for E-Verify, which encompasses over 700,000 worksites nationwide, and:

•  A strong employee rights initiative has been created and a partnership with the Department of Justice, Civil Rights Division, Office of Special Counsel has been formed, resulting in the introduction of an employee hotline and the release of videos, both for employees and employers, to guide them through the Tentative Nonconfirmation (TNC) process. These videos can be viewed on the USCIS website and YouTube and are also available on DVD.
•  The E-Verify public web pages have been redesigned and features an expanded employee support section.

USCIS today announced that it has revised the Employment Authorization Document (EAD), or Form I-766, to incorporate the addition of a machine-readable zone on the back of the card.

This update to the EAD is part of USCIS’s ongoing efforts to deter immigration fraud. Starting May 11, USCIS began issuing the revised EAD cards. The machine-readable zone is compliant with International Civil Aviation Organization standards. USCIS also removed the two-dimensional bar code on the backside of the card and moved the informational box of text to just beneath the magnetic stripe on the card.  The revised card retains all of its existing security features.

These revisions are the result of extensive collaboration among Department of Homeland Security components, particularly U.S. Immigration and Custom Enforcement, Customs and Border Protection and USCIS.  For more information on employment authorization, travel documents and other immigration benefits, visit www.uscis.gov or call USCIS¿s National Customer Service Center at 1-800-375-5283.

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New Consular Visa Fees to Start June 4, 2010

The US Department of State announced new fees for visa applications, starting on June 4, 2010. The rule establishes a tiered structure with separate fees for different nonimmigrant visa categories. Examples of the new fees include:

include:

• $140 fee for applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange visitor (F, M and J) visas, will pay a fee of $140.
• $150 fee for petition-based visas, including L, H, O, P, Q and R visas
• $350 for K-1 (fiancee) visas
• $390 for E visas.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has redesigned the Permanent Resident Card commonly known as the  Green Card to incorporate several major new security features.  State-of-the-art technology is supposed to prevent counterfeiting, obstruct tampering, and facilitate quick and accurate authentication of the card.  Beginning today, USCIS will issue all Green Cards in a new, more secure format.  We link to the new card

Here is some additional information regarding the card with FAQ’s released 5/17/2010.