USCIS has gone ‘live’ day with a new TNC communication process. The highlight of the latest enhancement is the combining of the TNC Notice and Referral Letter into one document – the Further Action Notice.

The Further Action Notice simplifies the TNC communication process by combining the employee’s biographical information, the reason for the TNC, the employee’s decision to contest, and employee instructions for contesting a TNC into a single document.  There will also be fewer screens to click through.

Here is a chart that provides the action that needs to be taken in various different TNC scenarios — very helpful, as well as a Further Action Notice sample, and a new email notification that will be sent to employees when their cases are referred to SSA or DHS.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
USCIS will provide more detailed information about the H-1B cap next week.

We are disheartened to see that USCIS is not basing their count on a first come first serve basis.  If the cap is open and your case is received before the cap is exhausted, you should be guaranteed that your case has been accepted for processing.  We are not in favor of the computer-generated random selection lottery approach that USCIS has taken this filing season, where all cases received through April 5th will be put into a lottery.  This creates tremendous uncertainty for employers who planned in advance…Just another sign that we are seriously in need of H-1B reform and a process that permits business and the economy to regulate the process.

We will keep you posted as more information is released.

April 29, 2013 Update:  We link to a recently released Demonstration Video that walks you through the required information to access your I-94 record and provides information how to maneuver through the fields of the online template.

Yesterday our firm participated in a CBP Stakeholder teleconference on this topic and we were surprised how much progress they have made since the last call which left us very nervous about how the automation process of the I-94 would play overall and particularly for I-9 purposes.

I have to say, after yesterday’s call, we really didn’t have any complaints. We share some of the pertinent points with you below:

1)       The website to access I-94 arrival-departure cards is www.CBP.gov/I94 .  It will be “live” the end of April as they phase in automation at air and sea ports commencing April 30, 2013.   The website will provide access to I-94 records going back two years.

2)      Electronic I-94’s will be available on the website for printing immediately upon entry (that was very good news).  So, there should be no lag time with a new employee’s ability to produce an I-94 record  when required for I-9 purposes or for social security cards, DMV, etc.

3)      When an employee changes their status inside the USA, changes employers or extends their stay, (such as an H-1B visa holder), USCIS will continue to print the I-94 records at the bottom right of the USCIS I-797 approval notices.

4)      CBP will post on their website a sample electronic I-94 for viewing.

5)      Whereas one will no longer be able to immediately check to see that the  information stamped on the I-94 matches up with their visas and I-797 approval notice, it was clear that applicants will need to be more proactive in verbally clarifying this with the CBP officers, particularly in situations when an H-1B visa holder is traveling on a still valid visa annotated with the name and validity date of a previous employer petition, but now  has a new employer USCIS I-797 approval notice with a different validity period.

6)      More on #5, it was stated that one could immediately check their I-94 on a mobile device and if there was an error, could get it corrected by getting back in line at the airport.

7)      CBP plans to provide nonimmigrants with a brochure or a list of instructions in 12 different languages upon entry concerning how to obtain their I-94’s online.

8)      The paper version of the I-94’s can still be turned in at the airport upon departure; however, they will collect departure information electronically through the departure manifest when leaving the USA.

9)      DMV was represented on the call and indicated that they were having problems with incorrect name entries and FNU’s being entered.  It was stated that the name on the electronic record will either match the name as it appears on the visa or the passport.  When accessing the record online, the name, passport number, date of birth and date of admission will be required information to access the electronic I-94 record.

If you have any questions, please feel free to call our office at 562 612.3996 or email info@immigrationcompliancegroup.com.

A new edition of the I-9 employment eligibility verification form was introduced last week.  USCIS has been working on the revised I-9 form for more than a year.  The revised M-274 Handbook for Employers can be accessed at the same link.  Many areas on the I-9 Central website have also been updated.  Note the webinar schedule for the new form.

The new edition of the I-9 Form, dated March 8, 2013, will take effect immediately on publication and will become the only acceptable version of the form.  Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 6, 2013.  Effective May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.  Employers who are not using the I-9 form following the 60-day grace period will be subject to fines and penalties under 274(a) of The Act (The Immigration and Nationality Act),  IRCA, as well as ICE.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors, and more clearly describes the information employees and employers must provide in each section. The instructions to the form are now 7 pages in length, and we recommend that you provide the instructions and the list of documents to your new employees to refer to during the process.  The form looks much more official and now displays the DHS seal at the top left of the form with space built in to eventually implement future barcode technology.  Helpful new images have been added to the M-274 Handbook to illustrate how employees and employers can complete Sections 1-3 of the new form. Please also see page 23 for updated guidance on recording changes of name and other identity guidance.

In the USCIS Stakeholder conference held on March 11, 2013, many of the questions centered around the following topics that we thought might be helpful to share with you, as follows:

1. Do I need to fill out a new I-9 forms for all employees?  You do not need to do new I-9 forms for those employees who already have one.
2. When to accept receipts:  Receipts for initial employment or renewal (during reverification) of employment are not acceptable.  There are 3 different documents that qualify as receipts are:  (a) Receipts may be presented for sections 2 and 3 if the document was lost, stolen or damaged; the receipt is valid for 90 days.  (b) Temporary I-551 (a printable notation on a machine-readable immigrant visa inside a foreign passport).  This is a 1-year permanent residency stamp for a foreign national that has received permanent status abroad.  The Form I-551 (permanent residency card) must be presented prior to or no later than the expiration stamp inside the passport.  (c) An I-94 entry card with an unexpired refugee stamp.  This is considered a receipt for an Employment Authorization Document (EAD card), or a combination of an unrestricted Social Security Card and a List B document and is valid for 90 days.
3. Rehires and Reverifications:  If you are rehiring an employee who completed an I-9 form within 3 years, you can continue to use the existing I-9 form, and record any name changes, the rehire date and other required information in Section 3 and change the date of hire in Section 2 (initial/date).  If their work authorization as changed you can make the correction on the existing form if still valid or generate a new form I-9 and fill in Section 3 and attach to the old form.  As a reminder, do not reverify US citizens, permanent residents, conditional residents, asylees with unrestricted work authorization and List B identity documents such as driver’s licenses and state ID cards.
4. The use of notaries:  Notaries are “designated agents” of the employer.  They should not imprint their notary stamp on any I-9 documentation or attach same to the I-9 form.  The employer is responsible for their actions and any violations relating to Form I-9.  Photocopies of I-9 forms are also not acceptable from Notaries.  A notary or any other designated agent appointed by the employer must examine the original documents presented to them and thoroughly complete and sign section 2 of the form and return the original to the employer, along with photocopies of the presented documents should this be a company policy.
5. Recording social security numbers:  On the List of Acceptable Documents for List C, Social Security card restrictions are explained to better assist in examination of the document.  Note that individuals with temporary work authorization are issued restricted social security cards that indicate:  “Not valid without USCIS/DHS work authorization
6. Recording the date of hire in Section 2:  When an offer of employment is extended and accepted but the employee has not yet started, the I-9 may be completed using that date instead of the ‘actual’ start date of employment.  You may then go back into the form and adjust the date to the actual start date (the 1^st day of work for pay).  Recruiters or recruiters for a fee are not required to enter the employee’s first day of employment.  However, you may enter the first day the employee was placed in a job pool after an offer of employment and acceptance.
7. Must employee present documents that correspond to box checked in Section 1?  No, employers may not insist on viewing any particular documents. However, if information is recorded in section 1 that puts the employer “on notice” that work authorization may be expiring, you are required to track that date and follow-up with the employee concerning their continued work authorization.

USCIS has indicated that a good place to begin implementing the use of the new I-9 form is to take time to first thoroughly read and digest the revised M-274 Handbook for Employers.  Download it from the USCIS website and provide a complete copy to each and every employee charged with processing and managing the I-9 function at your place of employment to ensure that they are aware of the changes and are equipped to properly implement them.  Update your company policies to reflect the changes in the form.

For those of you who manage your I-9 forms via an electronic software vendor, this is absolutely the right time to have a conversation with them concerning their compliance with the new form and make sure that it complies with all pertinent rules and regulations for I-9 electronic software .  This is also an excellent time to think about additional training for your staff.  Refer here for our services and solutions.

To order copies of the new I-9 form from USCIS, you can call 1-800-870-3676.

A new edition of the I-9 employment eligibility verification form has been introduced today and has been published in the Federal Register as of this writing.  USCIS has been working on the revised I-9 form for more than a year. In March 2012, it published  a proposed revision for public comment.

The new edition, dated March 8, 2013, will take effect immediately on publication and will become the only acceptable version of the form.  Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 7, 2013.  After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States.  Employers who are not using the I-9 form following the 60-day grace period will be subject to fines and penalties under 274(a) of The Act (The Immigration and Nationality Act),  IRCA, as well as ICE.

The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section.  To order copies of the new I-9 form from USCIS, you can call  1-800-870-3676.

For those of you who manage your I-9 forms via an electronic software vendor, this is absolutely the right time to have a conversation with them concerning their compliance with the new form.  This is also a good time to think about additional training for your staff.  Refer here for our services and solutions.  We will be reviewing the form very carefully in the next few days and will post our comments and guidance.

The SSA Program Policy Information Site contains the public version of the Program Operations Manual (POMS).  The POMS is a primary source of information used by Social Security employees to process claims for Social Security Benefits.

Today, SSA issued updates on several topics of interest to our readers and clients concerning I-9, EAD and SSA document examination and interpretation, as follows:

1)       EAD’s for NIVs:  https://secure.ssa.gov/poms.nsf/lnx/0110211420

2)       How to Verify Asylee Status:  https://secure.ssa.gov/poms.nsf/lnx/0110211213

3)      Evidence of Asylee Status When Form I-94 (Arrival and Departure Record) is Submitted:  https://secure.ssa.gov/poms.nsf/lnx/0110211207

4)      Evidence of Asylee Status for an SSN Card:  https://secure.ssa.gov/poms.nsf/lnx/0110211205

You will find this a wealth of excellent information and a great resource.  Should you have any questions or comments, please feel free to contact our office.

House Judiciary Committee holds Hearing Feb 27, 2013 on E-Verify to determine how it works and how it benefits American employers and workers

Areas of discussion were:

• Penalties for using E-Verify as a Pre-Screening Tool:  Doing so is abuse of the system and totally prohibited, although at this time there are no penalties for pre-screening candidates prior to the acceptance of a job offer.    The Monitoring and Compliance Unit of USCIS has indicated that they do indeed  investigate employer usage particularly when there are patterns of abuse, and can be referred to OSC.
• The panel discussed that Mandatory E-Verify as part of a CIR bill should not require employers to verify their entire workforce – but just their existing employees.
• Identity Fraud:  the Social Security Administration is working on a fix to identity fraud whereby one will be able to lock in their SS# to prevent multiple usage of numbers.  SSA anticipates that this feature will be ready to roll out by the end of the year.  As it stands now, a prospective employee can present fraudulent documents for the entire I-9 process for all 3 lists and be ‘work authorized’.

Further discussion ensured regarding the “phase in” process and whether or not the national usage mandate should become effective with the existing system while changes are implemented or wait until the system is further perfected.  Additional discussion took place around establishing an official procedure for those workers who have been terminated due to incorrect Final Non-Confirmation (FNC) notices so that they can rectify the incorrect data.

The following is a statement by Rep. Gutierrez:

“Today’s hearing is remarkable because we are talking about employment verification systems in their proper context.  We are discussing how to actually make them work and work for American workers with the right sorts of protections and appeals processes that make sure any errors are corrected in a timely manner.  And we are talking about electronic verification systems as part of a broader reform that legalizes the current workforce and allows for legal immigration in the future.”

There’s certainly more to track as discussions ensue, and we will keep you posted on this topic.

There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

USCIS today began the online transition, that replaces the existing Adjudicator Field Manual (AFM) and the current USCIS Memoranda website, by releasing the first volume of the new USCIS Policy Manual on Citizenship and Naturalization. Today’s release follows an unprecedented, agency-wide review of USCIS policies that incorporates feedback from thousands of agency employees, customers and stakeholders.  The complete USCIS Policy Manual will comprise several volumes, each pertaining to the different areas of immigration benefits.  This initial release begins the process of providing a single online reference for USCIS policies.

The manual provides a search mechanism, links to federal regulations, updates, memoranda and immigration forms.  The Citizenship and Naturalization volume will become effective as of January 22, 2013.  USCIS will notify as each volume of the manual is released.  This is a very impressive effort and a centralized location that is incredibly user friendly.

Take a look around:

1)  Press Release

2)  Video Announcement and Preview

3)  The Policy Manual

We expect the newly revised, 2-page I-9 form will be released in the first quarter of 2013.

Some Background …On March 27, 2012 USCIS released an initial draft of the I-9 form for public comment.  The new version is very different than the current I-9 form in use, with several new fields, a new layout and a form that is double the size.

USCIS received an amazing 6,200 comments and suggestions on the initial draft and then published an updated version of the form with instructions that includes several changes to the first draft published in May (see below). You can find more information about the newly proposed revisions to the Form I-9 here.   Please note that this proposed form is not in use; we are still using the form with the revision date of August 7, 2009 until further notice.

To help ensure compliance with the new changes, employers need to be ready to supply the necessary information, prepared to update training materials, and to partner with third-party I-9 experts.  With the right preparation and education, employers can be confident that they are meeting requirements and avoiding the hefty fines that come with mistakes as they develop the workforce that will help them meet company hiring requirements and goals, while maintaining a compliant workforce.

If you haven’t taken the time to do some comparing between the proposed I-9 form and the current one, here are some highlights that may assist you in ramping up for the upcoming changes.  Overall, we note:

• Improvement in heading lines for the document fields clarify where List B and C information should be placed on the form.
• Perjury language has been repositioned and enumerated for clarification and readability to avoid any confusion.
• New language helps employers understand what documents are acceptable for non-immigrant aliens, and the instances in which a Social Security Card does not grant an individual permission for work.
• The new form asks for “the employee’s first day of work for pay.” Although this has always been  the implied definition of “start date”, it is now described as such in the proposed new version.

Section 1

1. Last and First Name Fields: The form now shows “Last Name (Family Name)” and “First Name (Given Name)”, rather than the reverse.

2. Maiden Name is now called “Other Names Used (if any)”. Instructions state:  “Provide all other names used, if any (including your maiden name).  Write N/A if you’ve not had other legal names.”

3. Address – Must be a US address, except for border commuters from Canada and Mexico.

4. The Social Security Number boxes are now formatted to fit the requisite 9 digits.  Instructions now indicate that SS number are required for employers enrolled in E-Verify.

5. Email Address and Telephone Number – New fields.  Optional, per the instructions, but not marked as such on the form.  Note:  Though these fields are optional, many feel that the DHS should not have this information, as it could be used to contact individuals directly to probe for potential employer violations.

6. A-Number vs. USCIS Number: The instructions note that the “USCIS number is the same as the A-number without the “A” prefix. Another clarification: Foreigners authorized to work can provide either the A-Number/USCIS Number OR the Form I-94 number.

7. Form I-94 Admission Number: find the admission number on Form I-94 or “as directed by U.S. Customs and Border Protection in connection with your arrival in the United States.”  – leaving room for future CBP changes.   Note: The CBP has started the process of creating a new identification number for non-citizens to be used throughout the immigration process.

8. Barcode: – A space for a 3-D Barcode has been added to page 1 and 2, along with a “Do not write in this space” notation.   We are unsure at this time concerning the purpose of the barcode.

9. Stop Sign Icons:  The form now has two “Stop Sign” icons at the bottom of page 1, instead of “Go to Next page.”  This is to clearly prevent employees from accidentally completing section 2.

Section 2

10. Includes words concerning an “Authorized Representative,” that a designated agent or notary can act in an agent capacity in completing Section 2.

11. Moved the employee name fields (Last, First, and Middle initial) underneath the Section 2 heading and added the words “from Section 1” indicating that it is acceptable for the employer to enter this data.

12 Added new fields for the document title and issuing authority of second and third list A documents which more frequently pertain to foreign employees with certain document types.

Section 3 and List of Acceptable Documents

Minor changes, mostly related to formatting and clarification of the “Social Security Account Number card” restrictions.

Should you wish to consult with us on compliance matters, please refer to our compliance services and solutions here  or contact our office at info@immigraticompliancegroup .com or call 562 612.3996.