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Focus on Regulation

Immigration Newsletter

lady libertyThis update discusses recent developments in immigration law from the U.S. Departments of Homeland Security, State, and Labor, and additional related matters.

Department of Homeland Security

USCIS improves E-Verify’s direct notification capability

U.S. Citizenship and Immigration Services (USCIS) recently announced a new enhancement to the E-Verify System that will allow USCIS to directly notify employees of an information mismatch within the E-Verify system. E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States, and was recently revised to allow employees to voluntarily provide their e-mail address. The existing practice in cases of an information or record mismatch that must be resolved before an employee may be confirmed for employment was to issue a Tentative Nonconfirmation (TNC) to the employer, who must then contact the employee. TNCs generally are issued when an employer provides employee information to E-Verify that does not match the data found within the U.S. Department of Homeland Security or Social Administration records.

As a result of the latest USCIS customer service enhancement, if an employee provides his or her e-mail address on the Form I-9, E-Verify will now directly notify the employee of the TNC at the same time the employer is notified. Additionally, the new enhancement will allow E-Verify to send reminder e-mails to employees if no action has been taken to resolve the TNC within four days of a decision to contest, and to notify the employee about the need to update the data found within the U.S. Department of Homeland Security or Social Administration records.

New website offers entrepreneurs interactive resource to explain visa opportunities

On February 22, 2012, USCIS Director Alejandro Mayorkas announced the launch of the Entrepreneur in Residence Initiative (EIR). This initiative consisted of establishing a team of private sector entrepreneurs and USCIS staff who would work together to streamline and clarify the several visa pathways available to foreign entrepreneurs and to create specialized training for USCIS staff. As part of that process, the EIR team launched in January 2013 Entrepreneur Pathways, a website devoted to educating applicants and employers about the various visa opportunities available to entrepreneurs.

The highlight of the Entrepreneur Pathways website is its “Getting Started” tool. This feature explains step-by-step the considerations that should inform applicants and employers as they decide which visa program is right for them. The “Getting Started” tool has an easy-to-use and attractive format that collects all necessary information in one spot. Access Entrepreneur Pathways by clicking here. This website can also be accessed from the USCIS homepage by clicking on “Resources for Entrepreneurs.”

1-94 Card changes

On April 30, 2013, U.S. Customs and Border Protection (CBP) began implementing its plan to automate the Form I-94, Arrival/Departure Record. Paper I-94 forms will no longer be issued to visa holders arriving to the United States via air or sea ports. Passports will be stamped with the date of arrival and authorized period of stay but if the arriving visa holder needs a paper I-94 (e.g., for employment verification purposes for those who are admitted in work authorized status), he/she will be able to print it out from CBP’s website at www.cbp.gov/i94. CBP has confirmed that all US airports have now transitioned to the paperless I-94.

The American Immigration Lawyer’s Association has received reports that errors have occurred in the new on-line I-94 retrieval system, including errors in name/status, expiration date/category, or no information available at all. Nonimmigrant aliens should be sure to check the CBP’s on-line system (www.cbp.gov/i94) to verify their I-94 information after each arrival to the United States. Please contact us as soon as possible if there is an error in your information in the CBP system.

While there is no requirement that a nonimmigrant alien access and print out a record of admission in order to prove lawful admission and maintenance of status in the U.S., accessing and printing a record of admission should be a routine “best practices” policy. Printing a record of Form I-94 allows an individual to verify admission in the class and for the period of time indicated on the passport stamp. Furthermore, having a paper printout may facilitate applications for ancillary benefits, such as a driver’s license or a Social Security number.

Number of applicants for DACA lagging

In its first year, only 58% of those estimated eligible for the Deferred Action for Childhood Arrivals (DACA) have applied. The Obama Administration’s “deferred action” program was announced on June 15, 2012.

The DACA offers a two-year renewable deferral of removal action and a grant of employment authorization to qualifying immigrants, brought to the United States as youths. In order to qualify, individuals must:

  • Be under the age of 31 on June 15, 2012;
  • Have come to the United States before the age of 16;
  • Have continuously resided in the United States since June 15, 2007;
  • Currently be in school, have graduated or obtained a GED, or have been honorably discharged from the U.S. Coast Guard or Armed Forces;
  • Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors.

The U.S. Citizenship and Immigration Services (USCIS) has reported that 539,128 applications were received through May, 2013. These applications account for only 58% of those 936,933 immigrants estimated by the Immigration Policy Center to be immediately eligible for DACA. This number has been attributed by some to the high cost of the application process, ongoing political negotiations over wider immigration reform, and insufficient access to legal advice.

Department of State

August 2013 visa bulletin

The Department of State (DOS) has released its Visa Bulletin outlining the availability of immigrant visa numbers for August 2013.

In the family-based preference categories visa numbers are available as follows:

In the employment-based preference categories, visa numbers remain current and available for all nationalities in the categories of: first preference, fourth preference, certain religious workers, fifth preference, targeted employment areas/regional centers, and 5th Pilot programs. For other categories, visa numbers are available as follows, with a significant advance movement in the 2nd preference category for India:

Department of Labor

LCA and labor certification data made public by the Department of Labor

The Department of Labor (DOL) has created the Labor Certification Registry (LCR) in order to provide redacted copies of H-1B, H-1B1, E-3, H-2A, H-2B and permanent labor certification documents previously issued by Employment and Training Administration (ETA) Office of the Office of the Foreign Labor Certification’s (OFLC). The iCert Visa Portal System, available at http://icert.doleta.gov, is part of DOL’s Open Government Initiative and provides a level of transparency for labor certification decisions. These decisions, along with quarterly and annual case disclosure data, became accessible to the public to review and analyze on July 1, 2013.


Immigration implications of the Supreme Court’s DOMA ruling

In United States v. Windsor, the Supreme Court invalidated a section of the Defense of Marriage Act (DOMA) – which defined marriage as a union between a man and a woman – as unconstitutional. DOMA’s definition of marriage prevented same-sex couples from taking advantage of immigration benefits, but now same-sex couples will receive the same benefits as heterosexual couples. Janet Napolitano, Secretary of the Department of Homeland Security, commented on the ruling, saying, “[ E ]ffective immediately, I have directed U.S. Citizenship and Immigration Services to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

The Supreme Court’s ruling applies to several provisions of the Immigration and Nationality Act, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status).

Companies should be aware of these new immigration benefits for same-sex couples, even if their business resides in a state that does not recognize same-sex marriage. Same-sex couples are legally married for the purposes of immigration law if the marriage took place in a U.S. state or foreign country that recognizes same-sex marriage, regardless of the couple’s current place of residence. For example, an employee who legally married his or her same-sex spouse under Massachusetts law can apply for immigration benefits for his or her spouse, even if the employee resides and works in Pennsylvania, which does not recognize same-sex marriage. California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, Washington, and the District of Columbia have legalized same-sex marriage.

Employees in same-sex marriages may qualify for several immigration benefits. For example, an employee that is a U.S. citizen or permanent resident may petition for marriage-based immigration for his or her same-sex spouse. USCIS has not issued specific guidance regarding whether or how the Supreme Court’s decision in DOMA will affect non-immigrant derivative visas.