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/

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► 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.

At a time when the prospects for immigration overhaul seem most dim, supporters have unleashed a secret weapon: a group of influential evangelical Christian leaders.

For more on this, read the story.

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If you like our Blog, sign up to receive it through email on our Blog page along with  our other free newsletters, podcast and special Client Alerts.  You can also follow us on Twitter and LinkedIn (see links on the blog for signup).

If this is your first time visiting us, 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.  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.

You can access the Immigration Solutions free monthly news and podcast for July 2010 here.

Make sure to sign up for our news and media if you’d like to receive our information through email.  You can sign up on our blog to receive blog posts through email, as well.

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.

The Obama administration has been holding behind-the-scenes talks to determine whether the Department of Homeland Security can unilaterally grant legal status on a mass basis to illegal immigrants, a former Bush administration official who spoke with at least three people involved in those talks told FoxNews.com on 6/21/10.

The issue was raised publicly by eight Republican senators who wrote to the White House last week to complain that they had heard the administration was readying a “Plan B” in case a comprehensive immigration reform bill cannot win enough support to clear Congress.

The White House has neither confirmed or denied this claim.  It’s unclear what section of the illegal immigrant population such a move would target. But the former Bush official said the discussions are real.

“The administration at the very minimum is studying legal ways to legalize people without having to go through any congressional debate about it,” the source said, calling the senators’ claim credible. “Whether somebody pulls the trigger on that, that’s another issue.”

The senators — Chuck Grassley, R-Iowa; Orrin Hatch, R-Utah; David Vitter, R-La.; Jim Bunning, R-Ky.; Saxby Chambliss, Ga.; Johnny Isakson, R-Ga.; and James Inhofe, R-Okla  — claimed in their letter that the administration was looking at extending what is known as deferred action or parole to millions of illegal aliens in the United States.

For more on this story

1) Prevailing Wage Determinations:   The Department of Labor (DOL) advised today that a prevailing wage determination (PWD) obtained for an H-1B case can be used for a PERM case (and vice versa) if it is still valid and for the same job opportunity.  The announcement was made in the AILA/DOL Stakeholder Telephone Conference of 6/22/10 that can be viewed on the AILA website.  This will be extremely useful and will eliminate the long wait time in obtaining a PWD for DOL National for a PERM case when all information in re the job and its requirements remain identical.

2)  Current H-1B Cap Count as of 6/18/2010:  22,900 cases have been received under the general H-1B cap.  9,700 cases have been received against the advanced US degree cap of 20,000.

3)  CBP Releases Port of Entry Contact information:   http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/

4)  iCERT now posts PERM Processing Times: http://icert.doleta.gov/#fragment-2

5)  Life Along the Mexico-US Border Photo Essay:  http://www.washingtonpost.com/wp-srv/world/interactives/mexicoborder/

6)  DHS Releases Fact Sheet on  Southwest Border “Next Steps”

7)  E-Verify no longer voluntary for Utah Employers:

We will cover these topics and many more in greater detail in our free July newsletter.  If you haven’t signed up to receive it, you can do so here

The importance of having a strategy and planning ahead for visas to the USA cannot be stressed enough – we have a more complex system and it just simply takes longer than other countries.

Under the Bush administration, Cuban nationals were not granted US visas. This article cites unfortunate timing issues that prevented the Cuban group Buena Vista Social Club from entering the USA in time for their 3 scheduled US concerts.

Plan ahead as best as you can and work with providers who will go the extra mile on your behalf and make it happen.

The most significant movement in the EB (employment-based) Visa Bulletin for July 2010 is that the India EB-2 classification for professionals with Advanced Degrees or persons of Exceptional Ability advanced 8 months – from February 1, 2005 to October 1, 2005.

Further, the Department of State released some “best case scenario” predictions of where the Visa Bulletin dates might be at the end of fiscal year 2011,  (as of October 1, 2010) as follows:

Employment First: Current
Employment Second:  China and India: March or April 2006

Employment Third:

Worldwide: June through September 2004
China: October through December 2003
India: February 2002
Mexico: Unavailable
Philippines: June through September 2004

If this comes to pass, these predictions represent significant movement forward for many of the categories. We link to the July Bulletin here, and will continue to keep you updated.

Here is the current bulletin for June.  We additionally link to one of our earlier Immigration Solutions articles that explains how to interpret the Visa Bulletin.