USCIS is seeking the OMB (Office of Management and Budget) to approve a proposed rule that would require employers to pre-register before filing an H-1B cap petition.  Public comment will be sought on this issue and details are not being revealed at this time until it is published which could take several months.

What is known is that USCIS asserts that this will streamline the H-1B cap filing process by asking employers to register online and obtain a cap number before submitting a cap subject petition.  USCIS is suggesting that a system such as this be put in place for other petitions that are subject to an annual cap.

The Ombudsman in his report this year suggested that USCIS begin developing the system and with the plan to have it up and running by fiscal year 2012.  A plan such as this has been suggested in the past to deal with the high volume submissions of H-1B cap cases (which certainly hasn’t been an issue in the last 2 years).  We will keep you posted on any further developments concerning this issue.

The Meg Whitman scenario playing out in the news the last few days, is a good opportunity to address this issue and just how exactly the SSA No-Match Letter process works.

If the combination of name and SSN on a Form W-2 can not be matched to an SSA record, SSA is unable to attribute the earnings to a worker’s record. There are a number of reasons why reported information may not agree with our records, such as typographical errors, unreported name changes, inaccurate or incomplete employer records or misuse of an SSN.

What is a No-Match Letter?

After SSA processes the wage reports submitted by the employers, they attempt to resolve items that cannot be matched by sending letters to employees, employers and self-employed individuals to inform them when a reported name or SSN does not match SSA’s records. These letters are referred to as “no-match” letters and their purpose is to obtain corrected information to help SSA identify the individual to whom the earnings belong so that the earnings can be posted to the individual’s earnings record.

No-match letters fall under two categories:

• Employer No Match Letters — These letters may also be referred to as Employer Correction Request or Educational Correspondence (EDCOR) letters; and

• No Match Letters sent to workers whose earnings could not be credited to SSA’s records are referred to as Decentralized Correspondence or DECOR letters.

SSA began sending no-match letters to workers in 1979 and to employers in 1994.

Who gets a No-Match Letter?

When SSA processes wage reports, it notifies every worker whose name and SSN could not be matched to SSA’s records. This letter is sent to the address on the worker’s Form W-2. If there is no address or an address is not found in the Postal Service database of valid addresses, this letter is sent to the employer. The new DHS regulation does not address these letters.

Employer Notices (EDCOR)

Approximately two weeks after the release of the worker letters, SSA sends employer no-match letters. Currently, these are sent to any employer who reported more than 10 no-matches that represented more than 0.5% of the W-2s submitted by that employer.

The Employer notice advises of the no-matches and asks for corrected information.

Employer notices can list up to 500 SSNs (no names) that could not be matched (the employer can contact SSA for a full list if there are more than 500 errors). The employer is asked to prepare Forms W-2c (Corrected Wage and Tax Statement) for each of the SSNs listed in the Employer notice that the employer is able to correct.

If you are enrolled in E-Verify and receive a TNC

When a Tentative Non-Confirmation (TNC) is issued, the employer must notify the employee of the TNC and give the employee the opportunity to contest that finding.  If the employee chooses to contest the SSA TNC, he or she has eight business days to visit an SSA office with the required documents to initiate the process to prove identity and support the correction of the SSA record. Until the TNC is resolved, even if it takes longer than eight days, the employee must be allowed to keep working and cannot be fired or have any other employment-related action taken against him or her because of the TNC.  If the employee fails to contact SSA within the eight day contest period, the employee is considered a no show and a final non-confirmation is issued by E-Verify.  At this point, the employer should discuss this situation with their immigration attorney and seriously consider terminating employment.  A recent electronic business process enhancement, EV-STAR, allows SSA to use the E-Verify system to inform the employer of the case resolution once the employee visits SSA and resolves the issue.

For employees who successfully resolve a TNC, correcting SSA records is a useful result of the E-Verify process, helping individuals identify and resolve problems with their Social Security records. The work done to update records to resolve an E-Verify mismatch would need to be done at the time the individual applies for Social Security benefits.

Here is a sample of the E-Verify Referral Notice to the Employer when there is an SSS No-Match.  For more information on this topic, we link to our website where we have our employer compliance resource center and list of services and solutions for employers.

Fines Based Upon Inadequate Electronic I-9 System used to Track Worker Eligibility

Abercrombie & Fitch has been fined $1,047,110 in a settlement reached today with U.S. Immigration and Customs Enforcement ((ICE) for numerous technology-related deficiences in the company’s electronic I-9 system.

Referencing the ICE Press Release, the settlement is the result of a November 2008 Form I-9 inspection of Abercrombie & Fitch’s retail stores in Michigan.  The company was fully cooperative during the investigation and no instances of the knowing hire of unauthorized aliens were discovered. Since the initial inspection, Abercrombie & Fitch has taken measures to revise its I-9 Electronic Compliance Program, and has begun to implement new procedures to prevent future violations of federal immigration laws.

“Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance,” said Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan.  “We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.”

With the above being said — this is a definite attention getter!  There’s alot of I-9 software on the market.  Some we’re familiar with – and others we are not.  Electronic I-9 software must adhere to certain recordkeeping standards and technical safeguards in order to ensure that the underlying I-9s are accurate, authentic and trustworthy.  Systems must retain the same sequence of data elements on the paper I-9.

The main point here is to recognize that your I-9 system is a compliance system which must serve a unique  compliance function.  Yes, we know that you want the fancy tools and flagging systems, but the essential fundamentals are critical. We like the following questions provided by LawLogix’ electronic I-9 team:

1. Will the vendor provide third party independent evaluation of the system (preferably by an attorney with deep I-9 experience)?
2. What type of guarantees does the vendor provide in the contract (e.g., indemnification for gross negligence)?
3. Is the vendor able to provide 5 similarly situated client references that use the same I-9 system?  This is an important one and will speak directly to how well the vendor is supporting their product, releasing  updates, responding to constant changes in I-9 policy and procedure.  You should ask the references whether or not they have been subjected to an ICE audit using the vendor’s system and how quickly the vendor was able to respond to ICE demands.

Conducting your due diligence goes without saying – don’t believe all the hype re bundled in legal services.  LawLogix, who we are familiar with and highly recommend, state that there is no “one size that fits all”.  Careful planning is required and discussion with trusted immigration counsel advisable prior to any decisions being made.

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If you’d like to schedule a time to discuss your I-9s, whether that be a randomly selected or full audit, staff training or working with you to establish a set pf policies and procedures around handling your I-9 compliance, we offer solutions and services both onsite or offsite by our talented and trained legal compliance team.  Give us  a call.  562 612.3996 – www.employer-compliance.com

As previously reported last month in our blog post,  President Obama signed into law Public Law 111-230 on August 13, 2010. The law requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014. These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.

In our blog post referenced in the above link, USCIS is starting to issue RFE’s to employers who are subject to the new public law fees.

If the employer is subject to P.L. 111-230, the employer should return the RFE along with a statement explaining why it is subject to the fee and include a check for the relevant amount (either $2,000 or $2,250 depending on the type of nonimmigrant petition). If the employer is not subject to P.L. 111-230, the employer may sign an attestation which states why the employer is not subject to the law. The attestation should be placed on the employer’s letterhead, be signed and dated by the employer, and should state:

“[Name of employer] has [number] employees in the United States, of whom fewer than [insert number] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

Employers should be careful to include only the number of employees in the USA and not the world-wide number of employees in the calculation. This number may differ from the “number of employees” question asked on Form I-129, which may include a world-wide employee figure.

For H-1B and L-1 petitions filed on or after August 14, 2010, we would advise that employers draft an addendum to the Form I-129 Data Collection Supplement, which explains why they are not subject to P.L. 111-230.  It has also been recommended that you indicate same on the H-1B cover letter whether or not the petition is subject to P.L. 111-230.

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H-1B/LCA Compliance for Employers

As an employer, are you maintaining best practices and complying with USCIS and DOL regulations with your H-1B program?

We assist our clients with:

• Providing tools to teach compliance to managers in field or remote offices;
• Public Access File retention;
• Practical guidelines for reducing paperwork;
• Practical guidelines for reducing substantive violations and lowering risks of penalties;
• On-site or web seminar training on proper procedures;
• Onsite Public Access File audit services
• Standards for self-audits

U.S. Citizenship and Immigration Services (USCIS) today announced a final rule adjusting fees for immigration applications and petitions.  The final rule will increase overall fees by a weighted average of about 10 percent but will not increase the fee for the naturalization application. The final rule will take effect on November 23, 2010.

The final fee rule establishes three new fees for:

• Regional center designation under the Immigrant Investor Pilot Program (EB-5) (Form I-924);
• Individuals seeking civil surgeon designation (with an exemption for certain physicians who examine service members, veterans, and their families at U.S. government facilities); and
• Recovery of the USCIS cost of processing immigrant visas granted by the Department of State.

The final fee rule adjusts fees from $1000 to $1225 for the premium processing service.

The following schedule lists the adjusted fees that will take effect on November 23, 2010, alongside the existing fees in effect until that date.  For Q&A on the new fees, we link here.

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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, and sports industries, 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.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

In today’s business climate, being prepared on the day of your interview at the US Consulate is critically important. We always recommend that you do an interview prep with an attorney on the eve prior to your in-person interview at the US consulate and that the DS-160 form has been properly reviewed and submitted. You might wish to consider the below points:

1) Be completely familiar with the information and documentation in the Petition that was approved by USCIS.
2) Be able to articulate what your US employer does in the USA
3) Make sure that the US employer is credible and has made you a bona fide job offer
4) Be able to articulate the title and job duties associated with your position
5) Be able to establish a clear link between your prior experience and future job duties
6) Must be able to answer basic questions about your profession and display a level of fundamental knowledge concerning your occupation
7) Remember, you are coming to the USA on a ‘temporary’ basis, with the intention of returning to your home country at the conclusion of your employment in the USA

Overall, focus on direct and specific answers to the questions – think, short & simple. Make eye contact with the officer and be pleasant and professional. Have your papers organized for yourself and each family member in a professional looking manner, so that if you are asked to present a specific document, you’re not scrambling to find it. Professional business attire is recommended.

Should you like to consult with our office or become a client, please contact us.

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As reported by AILA (The American Immigration Lawyers Association), the Department of State (DOS) Visa Office has confirmed at the March 24, 2010, AILA/DOS Liaison meeting that the Kentucky Consular Center (KCC) has commenced verification of information contained in nonimmigrant visa petitions received from the USCIS (AILA InfoNet Doc. 10072868). Verification of information includes telephonic contact with petitioners related to factual aspects contained in the petition.

Background:

On November 17, 2007, DOS instructed consular posts that they must verify the details of approved NIV petitions through the Petition Information Management Service (PIMS) via the Consular Consolidated Database (CCD). Consular officers access the details of approved nonimmigrant visa petitions through the CCD in a PIMS report, which links an approved petition to a base petitioner record allowing superior tracking of NIV petitioner and petition information. The electronic PIMS record created by the KCC is the primary source of evidence used by consular officers to determine nonimmigrant visa (NIV) petition approval. In addition to the information submitted by the petitioner on the I-129, many of the PIMS reports also contain information from DOS’ Fraud Prevention Unit (FPU). The FPU performs research on petitioners, and as part of a pilot project, the FPU, on a random basis, verifies factual aspects related to the beneficiaries and their proposed U.S. employment.

Petitioner Reviews:

AILA has been advised that lack of information on the petitioner in the USCIS Computer Linked Information Management System (CLAIMS) system has resulted in DOS’ decision to create a base petitioner record as part of the PIMS report for all first time petitioners. To create this base petitioner record, the KCC verifies petitioner information contained in the petition including, but not limited to, review of the company website, company contact information, and use of Google earth to confirm that an office exists in an appropriate physical location. Once the base petitioner record is complete, the KCC will not normally re-verify the petitioner information for two years.

Beneficiary Reviews:

The DOS has also informed the AILA DOS Liaison Committee that the KCC has initiated a pilot program for verifying information related to beneficiaries and proposed U.S. employment. These checks are completed at random and are primarily completed through telephonic contact with petitioners. The telephonic contact by KCC is unannounced and should be anticipated to occur shortly after the petition is transferred to the KCC from the USCIS.

Once the review is completed, the findings of the beneficiary review are normally finalized within two days and available to consular officers. Consular officers are instructed to review the report, question the beneficiary regarding any discrepancies, and request that the KCC correct any information if a finding was in error. If the discrepancies were not in error, the consular officer will provide additional information to the KCC to update their report to include any additional incriminating evidence discovered during the course of the nonimmigrant visa interview.

The FPU has designated 15 contractors who have been authorized by the DOS to conduct these telephonic beneficiary reviews with petitioners. These contractors are authorized to contact the Petitioner and may request to speak to an authorized official. They will then ask a series of questions verifying certain information contained in the approved nonimmigrant visa petitions.

These include, but are not limited to:

1. Whether the petitioner, in fact, submitted the petition;

2. When was the petitioner incorporated

3. Where was the physical location of the petitioner

4. Number of employees

5. Names of shareholders

6. Location of Attorney of Record

7. General information regarding the petitioner’s operations and business plan

We’d like to provide employers with the following information and tips in handling these inquiries:

Request the name of the KCC contractor and confirm the credentials of the contractor with the KCC [(606) 526-7500] prior to providing any information.

1. Contact our office to advise us of the telephonic contact by the KCC contractor.
2. Do not speak with government agents or contractors without a witness present.  Both the witness and the interviewee should prepare notes of what questions were asked and label them “Privileged and Confidential/Prepared at the Direction of Counsel,” and submit them to our office for review and retention.
3. Retain complete copies of your I-129 petitions and supporting documents in a confidential file maintained by the designated company official for easy access during a contractor call.
4. Never guess at the answer to a question about the petition.  If the employer is unsure about some requested information, the employer should indicate that he/she will follow up with the KCC contractor to provide accurate information after such information is obtained.

Employers are reminded that the investigations conducted by the KCC are separate and apart from the investigations conducted by the Fraud Detection and National Security Unit (FDNS) of the Department of Homeland Security (DHS).  DHS will continue to conduct its own fraud investigations using the FDNS unit.  FDNS conducts site visits of petitioning employers in an effort to combat fraudulent petitions.  Employers are reminded to contact our office if they receive a site visit from a Department of Homeland Security contractor.

The day following President Obama signing Public Law 111-230, the fee increase on H-1B and L-1 visas became effective (August 14, 2010) through September 30, 2014.

What exactly is this law and what does it stipulate? It requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.  We were surprised that this announcement  which our office just saw posted today, is retroactive and being implemented before USCIS revises the I-129 Petition.  The fees apply to initial H-1B or L-1 employment – change of status and change of employer cases, in the same instances that require the Fraud Prevention Fee.  It is not required if an employer is filing to extend an H-1B or L-1 employee’s status.

What employers are subject to the new fee increase? The fee increase apply to employers who employ 50 or more employees in the USA with more than 50% of its employees in the USAS in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed.  It is noted that L-2 dependents of L-1 employees, are eligible for employment authorization documetns (EADs).  The USCIS recognized the difficulty for employers in adding such individuals into the count, but concluded that it is required under the law.  We are interpreting that this means that an employer who hires an L-2 dependent that has work authorization will be required to pay an additional fee of $2,250 to continue to employ them where an EAD is required for authorized employment.

USCIS will issue RFE’s: According to the August 19, 2010 public teleconference that USCIS held, cases filed without the new fee will not be rejected.  USCIS will issue Requests for Evidence (RFEs) on the cases that the new fee appears to be required.  Where USCIS does not any notation or attached evidence with the initial filing, it may issue an RFE to determine whether the petition is covered by the  Public Law. An RFE may be required even if such evidence is submitted, they advise, if questions arise.

Recommendations: USCIS encourages employers to include the additional fee as a separate check rather than adding this amount to the other filing fee checks, making it easy to simply return a check rather than reject an entire case filing for an incorrect filing fee.  Until such time as the form is revised, it has been recommended that the petitioner include a notation of whether the fee is required in bold capital letters at the top of the cover letter and, if it is required, pertinent documentation.

Issues: There are questions pertaining to L-1 petitions under the L-1 blanket program and how to work this out abroad at the US Consulates.  We will continue to keep you informed on this issue.

An interesting sidebar that came to light yesterday on the fee increase had to do with the fact that since it is common knowledge that the law targets Indian staffing agencies and consulting companies as well as medium to large IT employers, that it is probably a violation of the General Agreement on Trade and Services, an agreement that is vital to ensuring US companies are able to employ many of the 6,000,000 Americans working around the world.

Further, reported by Computerworld, the Department of State revealed this week that the U.S. is reviewing whether a law that increases some visa fees is compliant with World Trade Organization (WTO) rules and are also talking to Indian officials about the law and its implications.  India’s Commerce Secretary Rahul Khullar told reporters in Delhi on Tuesday that the visa fee hike is incompatible with the WTO.

We encourage you to sign up to receive our free information and join our worldwide readership.

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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, and sports industries, 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.  We offer these services, as well, to government contractors and advise on FAR E-Verify enrollment and compliance issues.

President Barack Obama on Friday signed a bill directing $600 million more to securing the U.S.-Mexico border, a modest election-year victory that underscores his failure so far to deliver an overhaul of immigration law from Congress.

Obama signed the bill Friday in a low-key Oval Office ceremony alongside Homeland Security Secretary Janet Napolitano. There were cameras present, but no reporters. The action came a day after the Senate convened in special session during its summer recess to pass the bill.

“Look, only Congress can pass a bill,” Napolitano said. “The president can advocate. He can get them to the table, as he has in the Roosevelt Room upstairs. He can implore. He can provide ideas. He can agree to a framework, as he already has. He can give a major address that spells out what’s needed in a bill, but only Congress can pass a bill.”

The new law will pay for the hiring of 1,000 more Border Patrol agents to be deployed at critical areas, as well as more Immigration and Customs Enforcement agents. It provides for new communications equipment and greater use of unmanned surveillance drones. The Justice Department gets more money to help catch drug dealers and human traffickers.

“Efforts to overhaul our broken immigration system have once again taken a back seat to appeasing anti-immigrant xenophobes, as Congress passed another dramatic escalation in border enforcement with very little evidence that past escalations have been effective,” said Margaret Moran, president of the League of United Latin American Citizens.

More on this

Obama’s Statement on Passing the Border Security Bill

USA Today

1. Want to stay in touch?  The InFOCUS Immigration Solutions August newsletter is available for your viewing here.
2. We link to an interesting letter to President Obama on Immigration Reform that says it all very well
3. USCIS to permit EAD (Employment Authorization Documents) to be expedited through the Nebraska Service Center (NSC) if they have been p ending for more than 60 days under particular circumstances.  Please contact our office for more information on this should you require assistance with expediting your case.
4. Department of State announces that they will phase in the implementation of an online, electronic Immigrant Visa form, the DS-260 that will eventually replace the DS-230 form. Federal Register 75 FR 45475.
5. Just yesterday, the US Senate passed a border security spending bill containing a provision that will be paid for by increasing fees for employers that have a large H-1B or L-1 foreign worker presence in their workforce. Specifically, the bill would increase total filing and fraud prevention fees by an incredible $2000 or more for petitioners with a U.S. workforce of more than 50 percent H-1B or L-1 nonimmigrants. The provision would be applicable to employers with 50 or more employees in the United States. The bill would also provide $600 million in emergency funds to increase security along our borders with Mexico by hiring more than new 1,000 border patrol and immigration enforcement officers, and increasing unmanned drone surveillance operations in the region.  For more on this
6. The USCIS will start receiving email inquiries on I-90 and N-400 forms if the wait time has exceeded the designated processing times.
7. The Department of Labor (DOL) bans the Asian Journal from the H-1B Program and agrees to pay $516, 500 in back pay to 32 employees plus a $40,000 penalty.

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