LitwinLaw Newsletter 7/13/06
1. ‘SKIL’ Bill Introduced in House; Would Benefit Employment-Based Immigration – The House of Representatives’ version of the ‘SKIL’ (Securing Knowledge Innovation and Leadership) bill was introduced on June 29, 2006.
2. USCIS Announces Filing Location Change for Employment-Based Adjustments – USCIS announced changes to the filing location for employment-based applications for lawful permanent resident status. California cases will now be processed in Nebraska or Texas, no longer at the California Service Center.
3. DHS Issues Proposed Rule on SSN Matches, ‘Safe Harbor’ Verification Procedures – DHS has proposed to amend regulations on the legal obligations of an employer when the employer receives a no-match Social Security letter and on “safe-harbor” procedures an employer can follow.
4. ICE Issues Interim Rule on Retaining I-9s Electronically – ICE has issued an interim rule providing that employers may sign and retain I-9 verification forms electronically.
5. State Department Issues Notice on New Passport Requirements – The Dept. of State proposes to implement in phases the requirement that travelers to and from the Caribbean, Bermuda, Panama, Mexico, and Canada will need a passport or other secure, accepted document to enter or re-enter the U.S. This is a heads-up of what to expect shortly.
6. No Action Yet in Congress on Comprehensive Immigration Reform Bills, But States Aren’t Waiting; Hearings Planned – The Senate and House have been unable to resolve their differences on comprehensive immigration reform legislation but members of Congress are calling for more hearings both in Washington, D.C., and around the country.
7. Senate Holds Hearing on Work Authorization Verification Enforcement – The Senate’s Subcommittee on Immigration, Border Security, and Citizenship held a hearing on immigration enforcement at the workplace.
8. USCIS Releases Guidance on Permanent Offers of Employment for Outstanding Professors and Researchers – USCIS has released guidance on applying the definition of “permanent employment” when adjudicating EB-1 petitions filed on behalf of outstanding professors and researchers.
9. USCIS Releases New Guidance on H-1B Cap Exemptions – USCIS has released new guidance for adjudicators on how determinations should be made with respect to the exemption from the H-1B cap for those who have earned a master’s or higher degree from a U.S. institution, and on eligibility for exemptions based on the American Competitiveness in the Twenty-First Century Act. This is complicated stuff, but our firm will guide you through it.
10. GAO Finds Labor Dept’s Oversight of H-1B Program Lacking; House Holds Hearing – The GAO has found that the Department of Labor’s review of H-1B applications is timely but lacks quality assurance controls and may overlook some inaccuracies.
11.State Dept. Reports on Visa Number Usage, Availability – A Dept. of State representative recently commented on China employment-based numbers and general availability for the remainder of the fiscal year.
12. USCIS Ombudsman Lists ‘Pervasive and Serious Problems’– The ombudsman’s annual report to Congress lists “pervasive and serious problems,” including, among others, backlogs and prolonged processing times
13. Sign-On Letter Supports Immigration– Over 500 economists have signed on to the Open Institute’s “Open Letter on Immigration,” which notes the benefits to the U.S. of immigration.
14. Google Launches New Government Information Search– Google U.S. Government Search provides a single location for searching across U.S. government information and keeping updated on government news.
Also in this issue:
The House of Representatives’ version of the ‘SKIL’ (Securing Knowledge Innovation and Leadership) bill was introduced by Rep. John Shadegg (R-Ariz.) on June 29, 2006. Sen. John Cornyn (R-Tex.) introduced the SKIL bill (S. 2691) in the Senate in early May. Among other things, the SKIL bill would increase the annual H-1B cap from 65,000 to 115,000, and exempt certain professionals from the H-1B and immigrant visa caps. The bill also would raise the immigrant visa cap from 140,000 to 290,000. A pre-certification program would be created for employers filing multiple applications with no history of abuse. Pre-certification would allow such employers to file their applications on a separate, more streamlined, track. The bill also would increase the time period allowed for foreign students’ post-curricular optional practical training from 12 months to 24 months.
U.S. Citizenship and Immigration Services (USCIS) announced on June 30, 2006, changes to the filing location for employment-based applications for lawful permanent resident status. Starting on July 24, 2006, all applicants filing an Application to Adjust Status or Register Permanent Residence (Form I-485) based on a pending or approved Immigrant Petition for Alien Worker (Form I-140), also referred to as a “standalone filing,” should mail that form directly to the Nebraska Service Center. Applicants should send accompanying forms (e.g., the Application for Travel Document (Form I-131) and/or the Application for Employment Authorization (Form I-765)) to the same location.
USCIS said the change marks the second phase of “Bi-Specialization,” a USCIS initiative to implement centralized filing and bi-specialized adjudications. USCIS is aligning similar workloads between two “sister” service centers. Starting on July 24, the Nebraska Service Center/Texas Service Center pairing will process all employment-based adjustment of status applications (and related applications). Although the Nebraska Service Center will serve as the centralized filing location, some petitioners and applicants will receive a filing receipt from the Texas Service Center, if the case is handled by that center. The center that generates the I-485 receipt notice will be the center that actually adjudicates the case, USCIS noted.
USCIS said it will not reject any standalone I-485s sent to an incorrect service center upon implementation of the amended filing instructions that go into effect on July 24. Instead, USCIS will accept the filing, direct it to the correct location, and honor the initial receipt date. The July 24 change establishing the new filing location does not affect other aspects of the form instructions; USCIS will continue honoring earlier versions of the I-485.
U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security (DHS), proposed on June 14, 2006, to amend regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer when the employer receives a no-match letter from the Social Security Administration (SSA) or the Department of Homeland Security (DHS). It also describes “safe-harbor” procedures that the employer can follow in response to such a letter and thereby “be certain that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States.”
The proposed rule adds to the current regulation’s definition of “knowing” two more examples of situations that may lead to a finding that an employer had such constructive knowledge. These additional examples involve an employer’s failure to take reasonable steps in response to either of two events: (1) The employer receives written notice from the SSA that the combination of name and social security account number submitted to the SSA for an employee does not match agency records; or (2) the employer receives written notice from the DHS that the immigration status documentation or employment authorization documentation presented or referenced by the employee in completing the I-9 form was not assigned to the employee according to DHS records.
The proposed rule also states that whether the DHS will actually find that an employer had constructive knowledge that an employee was an “unauthorized alien” in a situation described in any of the regulation’s examples “will depend on the totality of relevant circumstances.” The “safe-harbor” procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee’s identity and employment authorization through a specified process.
The regulation would not preclude the DHS from finding that an employer had actual knowledge that an employee was unauthorized. An employer with actual knowledge that one of its employees is unauthorized could not avoid liability by following the procedures described in the proposed regulation. The burden of proving actual knowledge, however, would be on the government, the proposed rule notes. Also, the resolution of discrepancies in a no-match letter, or other information that an employee’s Social Security number presented to an employer matches the records for the employee held by the SSA, “does not, in and of itself, demonstrate that the employee is authorized to work in the United States.”
U.S. Immigration and Customs Enforcement (ICE) issued an interim rule on June 15, 2006, that provides that employers and recruiters or referrers for a fee who are required to complete and retain an I-9 form (Employment Eligibility Verification) for each employee may sign and retain these forms electronically.
The interim rule implements statutory changes to the I-9 retention requirements by establishing standards for electronic signatures and the electronic scanning and retention of the I-9. The interim rule’s supplementary information notes that these standards closely follow widely accepted electronic storage standards and requirements previously published in Internal Revenue Service regulations. ICE said that reducing any potential burden on the business community by the adoption of existing standards already in wide use was a critical consideration.
There are still many open issues about the best practices for electronic signature and storage of I-9s. Employers are encouraged to comment on the interim rule after consulting with their IT departments and immigration counsel.
The Intelligence Reform and Terrorism Prevention Act of 2004 requires that by January 1, 2008, travelers to and from the Caribbean, Bermuda, Panama, Mexico, and Canada have a passport or other secure, accepted document to enter or re-enter the United States. The Department of State is proposing to implement the requirement in phases following a proposed timeline.
In the proposed implementation plan, which will be subject to a period of public comment, the requirement will be applied to all air and sea travel to or from Canada, Mexico, Central and South America, the Caribbean, and Bermuda December 31, 2006. The requirement will be extended to all land border crossings on December 31, 2007.
The Department noted that this is a change from previous travel requirements and will affect all U.S. citizens entering the U.S. from countries within the Western Hemisphere who do not currently possess valid passports. This new requirement will also affect certain foreign nationals who currently are not required to present a passport to travel to the U.S. Most Canadian citizens, citizens of the British Overseas Territory of Bermuda and, to a lesser degree, Mexican citizens will be affected by this requirement.
Although the Senate and House of Representatives have been unable to resolve their differences on comprehensive immigration reform legislation so far this session, various members of Congress and others are calling for more hearings on immigration issues, many focusing on enforcement, to be held this summer both in Washington, D.C., and around the country.
The House Education and Workforce Committee, for example, plans a “field” hearing some time in mid-July (the date and location have not yet been decided) focusing on English as the official language of the U.S. and on the effect of enforcement of immigration laws on U.S. workers. On the Senate side, Judiciary Committee Chairman Arlen Specter (R-Pa.) plans a hearing in Pennsylvania on July 5 on the topic of foreign guest workers.
Meanwhile, several states have jumped into the fray. According to the National Conference of State Legislatures, at least 30 states this year have considered over 75 bills targeting employers of unauthorized foreign workers. Among others, Colorado has directed its own Department of Labor and Employment to investigate contractors performing work for the Colorado state government that violate federal laws against hiring unauthorized workers. Pennsylvania state lawmakers are considering legislation to toughen penalties for employers statewide that hire unauthorized workers, and already have increased penalties for such employers who receive government grants or loans. Georgia and Massachusetts have begun requiring public employers to verify that no unauthorized workers have been hired. Many such efforts are largely symbolic, however, because of federal laws and penalties already on the books against hiring unauthorized workers.
Regardless of what happens this summer around the country, prospects for passage of a comprehensive immigration reform bill in Congress appear increasingly dim, although the Bush administration and others are still pushing for one. House Speaker Dennis Hastert said, “We want to make sure the Congress gets this done the right way and not be rushed just because it’s an election year.” Stay tuned.
Stewart Baker, Assistant Secretary for Policy Development under the Department of Homeland Security (DHS), noted in his testimony that the Bush administration is proposing a comprehensive overhaul of the employment authorization verification and employer sanctions programs as part of immigration reform. “We are proposing this now, because it is clear that the system set up in the 1986 Immigration Reform and Control Act (IRCA) didn’t work,” Mr. Baker said. IRCA “created a brisk trade in fake IDs,” Mr. Baker said, and employers had no way to verify documentation. The Basic Pilot work authorization verification program has been limited and voluntary thus far, and penalties for violations are low, he noted. Other obstacles, Mr. Baker said, include a lack of effective information-sharing and a failure to “follow the fraud” when new schemes evolve.
Mr. Baker said the administration is proposing: (1) a mandatory electronic employment verification system (EEVS) for employers that will ensure that businesses have a “clear and reliable” way to check work documents, including social security numbers, (2) allowing the Social Security Administration to share no-match data with the DHS to permit the latter to better focus enforcement efforts, (3) ensuring that all legal foreign workers have a secure employment authorization card that will reduce the ability of such workers to engage in document fraud, and (4) stiffening the penalties for employers who violate these laws.
The U.S. needs the ability “to set clear, reasonable standards of good conduct for employers,” Mr. Baker said, to include asking them to review employee documents using the electronic verification system and retain all documents relevant to their employees’ eligibility to work. Employers who are shown to have hired a significant number of unlawful workers in a year “should face a presumption that they have knowingly hired these individuals,” Mr. Baker said. “We also need to tighten the rules to ensure that employers cannot use contract arrangements to ‘wall themselves off’ from complicity in the illegal hiring of their contractors.”
While acknowledging that most of the administration’s proposals involve improvements to the existing employment verification and sanctions system, Mr. Baker said the President has proposed two major new improvements: the mandatory electronic verification system and sharing of no-match Social Security data with the DHS. “Sufficient access to no-match data would provide important direction to [U.S. Immigration and Customs Enforcement] investigators to target their enforcement actions toward those employers who have a disproportionate number of these no-matches, who have reported earnings for multiple employees on the same number and who are therefore more likely to be engaging in unlawful behavior,” he said.
Cecilia Munoz, Vice President for Research, Advocacy, and Legislation at the National Council of La Raza, expressed concerns that advancing an employer verification system could “jeopardize a substantial portion of the U.S. workforce” because data inaccuracies will cast doubt on some workers’ ability to do their jobs lawfully, “while others will likely be the victims of ‘defensive hiring,’ that is, employment practices [that] weed out people perceived as immigrants, or whose ethnicity suggests that they might be in the category of workers for whom verification is time-consuming and costly because the databases are fraught with errors.” She said La Raza supports devising a system that can allow employers to verify workers’ authorization swiftly while protecting them against dismissal or discrimination because of bias, ignorance, or faulty data. “The creation of [an electronic verification] system without addressing the fundamental flaws in the current program is unadvisable and will result in severe negative consequences for immigrant and U.S. workers on a much larger scale than they currently experience,” Ms. Munoz warned.
C. Stewart Verdery, Jr., an Adjunct Fellow with the Center for Strategic and International Studies, and formerly the DHS’s Assistant Secretary for Border and Transportation Security Policy and Planning, recommended: (1) phasing in any electronic verification system, starting with occupations most crucial to national security; (2) ensuring employee rights before termination; (3) developing biometric identification and, in the interim, implementing the REAL ID program; (4) involving the private sector in proposing and implementing innovative solutions; and (5) imposing fees to help pay the cost.
U.S. Citizenship and Immigration Services recently released guidance on applying the definition of “permanent employment” when adjudicating first preference (EB-1) petitions filed on behalf of outstanding professors and researchers.
The guidance notes that a recent review of modern business practices reveals that most employment agreements, when entered into between the employer and potential employee, provide that a tenure-track teaching position or comparable research position is terminable “at will,” even though both the employer and employee normally expect the employment to continue for an indefinite or unlimited duration. In determining whether a petitioning employer has established that a research position is permanent, the guidance notes, some adjudicators have focused solely on whether the language of an actual employment contract, if submitted, or the offer of employment contains a “good cause for termination” provision. Evidence of such a provision is not mandated under the regulations and is not the only way by which a petitioning employer may demonstrate that an employee in a research position has “an expectation of continued employment,” the guidance notes. Some adjudicators also inadvertently have applied the definition of “permanent,” which only affects research positions, to the assessment of whether a non-research position is tenured or tenure-track.
The guidance clarifies that adjudicators should not deny a petition for a permanent research position where the employer is seeking an outstanding researcher solely because the actual employment contract or offer of employment does not contain a “good cause for termination” clause. The petitioning employer still must establish that the offer is intended to be of an indefinite or unlimited duration and that the nature of the position is such that the employee ordinarily will have an expectation of continued employment.
Many research positions are funded by grant money received on a yearly basis. Researchers, therefore, are employed pursuant to contracts that are valid in one-year increments. If the petitioning employer demonstrates the intent to continue to seek funding and a reasonable expectation that funding will continue, such as demonstrated previous renewals for extended long-term research projects, such employment can be considered “permanent” within the meaning of the regulations, the guidance states. Adjudicators also should consider the circumstances and benefits surrounding the job offer.
Determinations of whether a position qualifies as a tenured or tenure-track position are not linked to the regulatory requirement that the position be “permanent,” which applies only to research positions, the guidance notes. As such, adjudicators do not need to evaluate whether the employment contract for a tenured or tenure-track position has a “good cause for termination” clause “and should not deny a petition seeking an outstanding professor for [such a] position on that basis alone.” Adjudicators, however, should continue to evaluate whether the overall nature of the position is tenured or tenure-track.
U.S. Citizenship and Immigration Services (USCIS) recently released new guidance for adjudicators on: (1) how determinations should be made with respect to the exemption from the H-1B cap for those who have earned a master’s or higher degree from a U.S. institution, and (2) eligibility for exemptions based on the American Competitiveness in the Twenty-First Century Act of 2000 (AC21).
The guidance on master’s or higher degrees states that, when reviewing a petition involving a potential cap case, adjudicators should first determine if there is another basis to exempt the beneficiary from the H-1B cap. Then, in determining whether a U.S.-issued degree is a master’s degree, adjudicators “should consider more than the simple nomenclature of a degree.” To qualify as a master’s degree for purposes of meeting the cap exemption requirement, the guidance states, the degree must be one for which a bachelor’s degree in any field is required as a prerequisite. This ensures that the master’s degree is at least one level higher than a bachelor’s degree, the essential component of the “master’s or higher” degree requirement.
USCIS provided several examples of why degrees should not be adjudicated at face value. In the chiropractic field, the guidance notes, the entry-level degree is “Doctor of Chiropractic,” and a bachelor’s degree in any field is not a prerequisite. On the other hand, attorneys typically hold a “juris doctor” degree and medical doctors hold a “doctor of medicine degree.” Although neither degree is equivalent to a Ph.D., “a J.D. or M.D. would be considered to be equivalent to, if not higher than, a master’s degree,” the notice states.
To obtain the H-1B cap exemption for a U.S. master’s degree or higher, the guidance notes, the requirements of both a qualifying master’s or higher degree, and issuance of the degree from a U.S. institution of higher education, must be met. The guidance also outlines what the term “institution of higher education” means for purposes of the H-1B cap exemption.
USCIS also released guidance regarding eligibility under AC21 for an H-1B cap exemption based on employment or an offer of employment at an institution of higher education, a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization. The lengthy guidance notes that a number of questions have been raised and clarifies how USCIS will interpret these terms, including for third-party petitioners, when adjudicating H-1B petitions requesting exemptions to the cap.
Noting that the exemption allowed for those who are employed “at” a qualifying institution is a broader category than would be the case for those employed “by” a qualifying institution, USCIS states that it will allow third-party petitioners to claim exemption if the beneficiary will perform job duties “that directly and predominately further the normal, primary, or essential purpose, mission, objectives or function of the qualifying institution, namely, higher education or nonprofit or governmental research.” The guidance notes that if a petitioner is not itself a qualifying institution, the petitioner bears the burden of establishing that there is a logical nexus between the two. In many instances, the guidance notes, third-party petitioners seeking exemptions are companies that have contracts with qualifying federal agencies or other institutions that require the placement of professionals on-site at the agency. The H-1B employees generally perform work directly related to the purposes of the qualifying federal agency or entity and thus may qualify for an exemption to the H-1B cap. Qualifying third-party employment can occur in a variety of other ways; the guidance provides a non-exhaustive list of examples.
The U.S. Government Accountability Office (GAO) has found that reviews by the Department of Labor (DOL) of H-1B applications are timely but lack quality assurance controls and may overlook some inaccuracies.
The report notes that from January 2002 through September 2005, the DOL electronically reviewed more than 960,000 such applications and certified almost all of them. About one-third of the applications were for computer systems analysis workers and programming occupations. The GAO’s analysis of the DOL’s data found certified applications with inaccurate information that could have been identified by more stringent checks.
The GAO found 3,229 applications that were certified even though the wage rate on the application was lower than the prevailing wage for that occupation. Additionally, approximately 1,000 certified applications contained erroneous employer identification numbers, which the GAO said raised questions about the validity of the applications.
From fiscal year 2000 through FY 2005, the GAO noted, the DOL’s Wage and Hour Division (WHD) reported an increase in the number of H-1B complaints and violations, and a corresponding increase in the number of employer penalties. In FY 2000, the DOL required employers to pay back wages totaling $1.2 million to 226 H-1B workers; by FY 2005, back wage penalties had increased to $5.2 million for 604 workers. “Program changes, such as a higher visa cap in some years, could have been a contributing factor,” the GAO said.
The Department of Homeland Security (DHS) reviews the DOL’s certified applications but cannot easily verify whether employers submitted petitions from more workers than originally requested because U.S. Citizenship and Immigration Service’s database cannot easily match each petition to the DOL’s application case number, the GAO noted. Also, while reviewing petitions, DHS staff may find evidence that employers are not meeting their H-1B obligations and may deny a petition if an employer is unable to explain a discrepancy, but the agency does not have a formal process for reporting such discrepancies to the DOL. Also, current law precludes the WHD from using this information to initiate an investigation of the employer, and the GAO found other information-sharing difficulties.
The GAO recommends that Congress consider eliminating the restriction on the DOL that prevents it from using information from the DHS to initiate an investigation, and directing the DHS and DOL to share information on employers that may not be fulfilling program requirements. The GAO also recommends that the DOL improve its checks of employers’ applications and that USCIS include the DOL’s application case number in its new information technology system.
The GAO noted that the DHS agreed with its recommendations, but the DOL questioned whether more stringent checks were needed and believes Congress intentionally limited the DOL’s role and placed program integrity with USCIS. “We believe there are cost-effective methods that Labor could use to check the applications more stringently that would enhance the integrity of the H-1B process,” the GAO concluded.
The full text of the GAO’s report, H-1B Visa Program: Labor Could Improve Its Oversight and Increase Information Sharing with Homeland Security, is available at http://www.gao.gov/new.items/d06720.pdf.
A Department of State representative has reported that China’s EB-1 category became current in July because demand was less than projected. 1,700 Chinese EB-1 numbers have been used; 2,800 are available for the fiscal year. Overall, China has used 5,600 employment-based numbers with 9,800 available for the year. It is likely that China will not hit the limit overall. Previously U.S. Citizenship and Immigration Services (USCIS) was clearing out its backlog of employment-based immigrant visa petitions, causing delays. Demand is now lower because approvals seem to have stabilized, the representative noted. EB-1 China numbers should continue to be available, although there is no guarantee, because the backlogs encountered recently resulted from an apparent surge in processing by USCIS.
Further, the representative noted, 37,000 of the 50,000 Schedule A numbers have been allocated. Current usage is 2,700 to 2,800 per month, so a supply should remain available through October or November of 2006. The Department will not allocate a case to Schedule A if an EB-2 or EB-3 number is available for the individual based on the petition.
Meanwhile, the representative noted, recent pessimistic comments about future availability of visa numbers were directed at family-based, not employment-based, numbers. Readers should not assume visa availability, however, until the cut-off dates are announced.
U.S. Citizenship and Immigration Services (USCIS) Ombudsman, Prakash Khatri, issued an annual report to the Senate and House of Representatives Judiciary Committees on June 29, 2006. The report lists “pervasive and serious problems” at USCIS, including, among others, backlogs and prolonged processing times, untimely processing and systemic problems with employment-based “green card” applications, limited availability of case status information, misdirected or unrecorded green cards, and delays caused by name checks and other security checks. The report includes 13 recommendations to the USCIS director.
Over 500 economists have signed on to the Open Institute’s June 19, 2006, “Open Letter on Immigration,” which notes the economic benefits to the U.S. of immigration. The letter, including the extensive list of signers, is at: http://www.independent.org/newsroom/article.asp?id=1727.
Google U.S. Government Search provides a single location for searching across U.S. government information and keeping updated on government news. Users can choose to search for content located on either U.S. federal, state, and local government Web sites or the entire Web, from the same search box. Below the search box, the home page includes government-specific news content from both government agencies and press outlets. The page can be personalized by adding content feeds on government or other topics of interest.
The new Google government search is available at: http://www.google.com/help/about_usgovernmentsearch.html. At the bottom of the page, click on “About Google U.S. Government Search” for frequently asked questions about how to use the search.
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers: