Headlines:
1. H-1B Exemption Cap Reached for FY 2007 – USCIS announced that it has met the exemption limit of 20,000 for fiscal year 2007 for H-1B petitions requesting foreign workers who have earned a master’s or higher degree from a U.S. institution of higher education.
2. USCIS Urges H-2B Employers To Continue To Identify, Certify “Returning Workers” Despite Expiration of Provisions – USCIS urges prospective H-2B employers to continue to identify and certify those workers who qualify as “returning workers” under current law when filing petitions for employment start dates in FYs 2006 and 2007.
3. USCIS Announces Transfer of Nonimmigrant Worker Cases – The Vermont Service Center transferred nearly 5,000 nonimmigrant worker petitions to the Texas Service Center.
4. DHS Proposes Expanding US-VISIT to Additional Non-U.S. Citizens; GAO Criticizes US-VISIT Contracts -The DHS issued a proposed rule that would expand processing in the US-VISIT program to an additional number of non-U.S. citizens.
5. USCIS Discontinues Locally Produced I-688B Employment Authorization Cards – USCIS is discontinuing local production of EACs in favor of the EAD produced at one central location.
6. DHS Seeks To Create ‘Industry Standard’ on Building Legal Workforces With New IMAGE Program – The ICE Mutual Agreement between Government and Employers (IMAGE) is intended to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers.
7. Participation in Basic Pilot Verification Program Is Accelerating, USCIS Says – More than 10,000 U.S. employers are participating in the Basic Pilot employment verification program.
8. DHS Official Testifies at House Hearing on Regional Immigration Issues – The goal of visa policy coordination efforts with Canada and Mexico is that a traveler at a Canadian or Mexican port of entry will experience substantially the same screening as a traveler bound for the U.S.
9. TPS Extended for Somalia – The re-registration period began on July 27, 2006, and ends on September 25, 2006.
10. GAO Analyzes Benefits and Limitations of Using Earnings Data to Identify Unauthorized Work – The GAO outlined the key characteristics of possible data sources the DHS could use to identify unauthorized work.
11. State Dept. Announces Retrogression of India Employment-Based Category, Other News – For August, the Department of State’s Visa Office said it has been necessary to retrogress cut-off dates in several employment-based visa categories for India.
12. USCIS Issues Final Rule on Affidavits of Support – Among other things, the final rule retains a “significant ownership interest” threshold, for purposes of an affidavit of support, of five percent or more in a for-profit entity.
13. Recent News from ABIL Members – Recent News from ABIL Members
Details:
1. H-1B Exemption Cap Reached for FY 2007
U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2006, that it has met the exemption limit of 20,000 for fiscal year (FY) 2007 for H-1B petitions requesting foreign workers who have earned a master’s or higher degree from a U.S. institution of higher education. Petitions received on July 26, 2006 are being subjected to a random selection process, described below, and USCIS will reject petitions requesting such a worker that are received after that date unless the petition is otherwise eligible for a separate cap exemption.
USCIS has implemented the following procedure for FY 2007 H-1B filings:
- If USCIS determines that the numerical limits have been exceeded, the agency will identify those H-1B petitions seeking a FY 2007 number that were received on that date.
- USCIS will then conduct a computer-generated random selection of the petitions received on that date to allocate any remaining FY 2007 H-1B numbers.
- After random selection, any remaining H-1B petitions that do not receive a FY 2007 number and are not otherwise exempt will be rejected and returned.
- Returned petitions will be accompanied by the filing fee.
- Petitioners may resubmit their petitions when H-1B visa numbers become available for FY 2008.
- The earliest date a petitioner may file a petition requesting FY 2008 H-1B employment with an employment start date of October 1, 2007, would be April 1, 2007.
Petitions for current H-1B workers do not count toward the H-1B cap. Accordingly, USCIS will continue to process petitions filed to extend the amount of time a current H-1B worker may remain in the U.S., change the terms of employment for current H-1B workers, allow current H-1B workers to change employers, or allow current H-1B workers to work concurrently in a second H-1B position.
USCIS also noted that petitions for new H-1B employment are exempt from the annual cap if the worker will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization.
The USCIS announcement is available at http://www.uscis.gov/graphics/publicaffairs/newsrels/H1BMasters072806PR.pdf.
2. USCIS Urges H-2B Employers To Continue To Identify, Certify “Returning Workers” Despite Expiration of Provisions
U.S. Citizenship and Immigration Services (USCIS) has reminded employers using the H-2B nonimmigrant visa program that the “returning worker” provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) are set to expire on October 1, 2006, the first day of fiscal year (FY) 2007. USCIS urges prospective H-2B employers to continue to identify and certify those workers who qualify as returning workers under current law when filing petitions for employment start dates in FYs 2006 and 2007. USCIS said this will enable the agency to maintain an accurate cap count of H-2B nonimmigrant workers for FY 2007 regardless of whether the returning worker provisions expire or are reauthorized.
To ensure accurate H-2B cap counting, USCIS is preparing for several scenarios: (1) the provisions are not extended, or (2) the provisions are extended by future legislation, either before or after the scheduled sunset of the provision at the close of FY 2006. Bills extending the provisions have been passed by the Senate, but whether or when they will be extended by Congress in enacted legislation “is a matter entirely within the discretion of Congress,” USCIS noted.
Petition forms and processing will follow current rules, with additional requirements for returning workers, USCIS said. Details on the additional requirements are available at http://www.uscis.gov/graphics/publicaffairs/statements/H2BSOSExmp072806PN.pdf. A sample returning worker attestation may be found at http://www.uscis.gov/graphics/formsfee/forms/files/H2B_Attestation.pdf.
USCIS noted that petitions filed by prospective H-2B employers for returning workers with requested employment start dates of September 30, 2006 or earlier will continue to be approved by USCIS if all other eligibility requirements are met, and those returning workers identified and certified within such petitions will be deemed exempt from the FY 2006 cap despite the fact that their work for the H-2B employer will almost certainly extend into FY 2007, even if the SOS Act is not extended.
As a result of the expiration of the returning worker provisions of the SOS Act, however, USCIS noted that all petitions requesting H-2B workers for new employment with a start date of October 1, 2006 or later (FY 2007 employment) must be counted toward the annual H-2B cap of 66,000 for FY 2007, whether or not the workers would be recognized as H-2B returning workers under the provisions currently applicable to FY 2006 start dates. In the event that the “returning worker” provisions of the SOS Act are reauthorized by FY 2007, and if employers continue to identify and certify “returning workers” in their H-2B filings, USCIS will be able to identify appropriate individuals as cap-exempt and adjust the running cap count for H-2Bs accordingly, thus making more numbers available to other workers. USCIS said that if Congress has not extended the SOS Act by the time USCIS reaches the 33,000 cap for the first half of FY 2007 for H-2B workers (including those provisionally designated as “returning workers”), USCIS will give notice that the cap has been reached and will reject further cap-subject H-2B filings.
Petitions for current H-2B workers do not count toward the congressionally mandated H-2B cap. Accordingly, USCIS will continue to process petitions filed to extend the stay of a current H-2B worker in the U.S., change the terms of employment for a current H-2B worker, or allow a current H-2B worker to change or add employers.
3. USCIS Announces Transfer of Nonimmigrant Worker Cases
U.S. Citizenship and Immigration Services (USCIS) announced on July 26, 2006 that the Vermont Service Center (VSC) recently transferred nearly 5,000 nonimmigrant worker petitions (Forms I-129) to the Texas Service Center (TSC). VSC also transferred approximately 22,000 alien relative immigrant visa petitions (Forms I-130) to the California Service Center (CSC). USCIS said “[c]ustomers should not be alarmed if they receive notices” from TSC or CSC about a case initially mailed to VSC. “When customers receive such a notice, they should route any questions about their case to the service center from which they received their last notice.” USCIS said it reserves the right to transfer additional cases in the future should that become necessary to ensure timely case processing in the event of workload surges.
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4. DHS Proposes Expanding US-VISIT to Additional Non-U.S. Citizens; GAO Criticizes US-VISIT Contracts
The Department of Homeland Security (DHS) issued a proposed rule on July 27, 2006 that would expand processing under the US-VISIT program to an additional number of non-U.S. citizens, including:
- lawful permanent residents of the U.S.;
- individuals entering the U.S. who seek admission on immigrant visas;
- individuals entering the U.S. who seek admission as refugees and asylees;
- certain Canadian citizens entering the U.S. for specific business or employment reasons (Form I-94 holders) (excluding most Canadian citizens entering the U.S. as B-1/B-2 visitors to shop, visit friends and family, vacation, or take a short business trip);
- individuals paroled into the U.S.; and
- individuals applying for admission to Guam under the Guam Visa Waiver Program.
Those subject to US-VISIT may be required upon entry or departure to provide fingerscans, photographs, or other biometric identifiers. Comments on the proposed rule may be submitted by August 28, 2006. For details, see the announcement (http://www.dhs.gov/dhspublic/display?theme=43&content=5762&print=true) and proposed rule (http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/E6-11993.pdf).
Meanwhile, the U.S. Government Accountability Office (GAO) recently issued a report finding that US-VISIT contracts have not been managed or overseen effectively. The GAO made recommendations to the DHS to ensure that effective contract management and financial controls are established and implemented both for contracts managed by the US-VISIT program office and for those managed by other agencies. The full text of the GAO report, “Homeland Security: Contract Management and Oversight for Visitor and Immigrant Status Program Need to be Strengthened” (GAO-06-404), is available at http://www.gao.gov/new.items/d06404.pdf.
5. USCIS Discontinues Locally Produced I-688B Employment Authorization Cards
U.S. Citizenship and Immigration Services (USCIS) announced on July 28, 2006 that it is discontinuing local production of Employment Authorization Cards (EACs/Forms I-688B) in favor of the Employment Authorization Document (Form I-765) produced at one central location. USCIS said the locally produced I-688B lacks security features and is not well-suited to verification.
USCIS explained that as of April 1, 2005, applications for employment authorization were centralized at the USCIS service centers and the National Benefits Center (via the Chicago Lockbox). Some local USCIS offices continued to accept employment authorization applications, however, and produced EACs using local systems. USCIS said that such offices, in their discretion, may continue to accept “certain employment authorization applications until October 1, 2006.” After September 1, 2006, however, such local offices will no longer directly process those cases but will forward them for service center processing. Those seeking the fastest service should send their applications directly to the appropriate service center or Chicago Lockbox, as set forth in the I-765 instructions. As of October 1, 2006, USCIS local offices will no longer accept any I-765 filings.
The discontinuation of locally produced EACs will not prohibit people from using InfoPass to schedule an appointment for an interim employment document when USCIS has not adjudicated the original I-765 within 90 days, USCIS said. The agency recommends that applicants seeking to replace an expiring EAD file the I-765 at least 100 days before the current card expires.
The USCIS announcement is at http://www.uscis.gov/graphics/publicaffairs/statements/EADFilingCh072806PN.pdf.
6. DHS Seeks To Create ‘Industry Standard’ on Building Legal Workforces With New IMAGE Program
The Department of Homeland Security announced on July 26, 2006 an initiative and best business practices to help employers ensure that they are building legal workforces through voluntary partnerships with the U.S. government. The “ICE Mutual Agreement between Government and Employers (IMAGE)” is intended to build cooperative government-business relationships to strengthen hiring practices and reduce unlawful employment of foreign workers. The initiative also seeks to effect greater industry compliance and corporate due diligence through enhanced federal training and education of employers, DHS said.
The DHS said IMAGE has been designed to provide answers to the flood of questions the agency has received from employers seeking information on how to avoid hiring unauthorized workers. “[P]rosecutions are only part of the solution,” said DHS Secretary Michael Chertoff. “If the government is going to fully address the problem of illegal alien employment, it must partner with employers, educate them and provide them with the tools they need to develop a stable, legal workforce.”
Companies that join the program and comply with the terms of IMAGE will become “IMAGE certified,” a distinction that U.S. Immigration and Customs Enforcement (ICE), a DHS agency, believes will become an industry standard. Under the program, ICE will partner with companies representing a broad cross-section of industries. The companies will serve as “charter members” of IMAGE and will be liaisons to the larger business community, DHS said. As part of the program, businesses must adhere to a series of best practices, including the use of the Basic Pilot employment verification program administered by U.S. Citizenship and Immigration Services. ICE will provide training and education to IMAGE partners on proper hiring procedures, fraudulent document detection, and antidiscrimination laws. ICE will share data with employers on the latest schemes used to circumvent legal hiring processes. The agency also will review the hiring and employment practices of IMAGE partners and will work collaboratively with them to correct “isolated, minor compliance issues.”
As a first step, companies must agree to an audit of their Employment Eligibility Verification (I-9) forms, and must use the Basic Pilot program when hiring employees. For more information on this and other USCIS verification programs, see https://www.vis-dhs.com/EmployerRegistration/StartPage.aspx?JS=YES&AccessMethod=.
To become IMAGE-certified, partners also must adhere to best practices, including the creation of internal training programs for completing I-9s and detecting fraudulent documents. IMAGE partners must arrange for audits by “neutral parties” and must establish protocols for responding to Social Security no-match letters. ICE also is asking employers to establish a tip line for employees to report violations and mechanisms to self-report violations to ICE. A full list of best practices is available at http://www.ice.gov/partners/employers/worksite/besthire.htm.
More information on IMAGE is available at http://www.ice.gov/partners/opaimage/index.htm. Frequently asked questions can be found at http://www.ice.gov/partners/opaimage/image_faq.htm. Information packets can be requested at http://www.ice.gov/exec/opaimage/image_program_request.asp. The press release announcing the IMAGE initiative is available at http://www.dhs.gov/dhspublic/display?theme=43&content=5757&print=true.
7. Participation in Basic Pilot Verification Program Is Accelerating, USCIS Says
U.S. Citizenship and Immigration Services (USCIS) announced recently that more than 10,000 U.S. employers are participating in the Basic Pilot employment verification program, which allows employers to run online work authorization checks against Social Security Administration and Department of Homeland Security databases. Participation in the free program has more than doubled during the first three quarters of this fiscal year, USCIS said. Participating businesses are verifying the work authorization of over one million new hires each year at 36,000 hiring sites across the U.S.
The program was launched in selected states beginning in late 1997, and was expanded in late 2004 to allow employers in all 50 states and the District of Columbia to participate. Employers may register online for the program at https://www.vis-dhs.com/EmployerRegistration.
8. DHS Official Testifies at House Hearing on Regional Immigration Issues
Cresencio Arcos, the Assistant Secretary for International Affairs of the Department of Homeland Security (DHS), testified at a hearing held on July 26, 2006 in the House of Representatives’ Subcommittee on the Western Hemisphere on regional immigration issues. Mr. Arcos said, among other things, that the DHS and the Department of State are working on visa policy coordination with Canada and Mexico “as an effort to implement policies and procedures that will lead to comparable decisions about travelers destined to North America.” The goal, he said, is that a traveler at a Canadian or Mexican port of entry will experience substantially the same screening as a traveler bound for the U.S.
Mr. Arcos also noted that the two departments are working with Canada and Mexico to further coordinate the list of countries whose nationals are permitted to travel “visa free” to or within North America. He pointed out that since the terrorist attacks in the U.S. on September 11, 2001, a notable visa policy change included Canada’s decision to impose a visa requirement on nationals of Saudi Arabia, Malaysia, and Costa Rica, while Mexico decided to require citizens of South Africa, Brazil, and Ecuador to present a visa to enter Mexico lawfully. The reimposition last year by Mexico of a visa requirement for Brazilians decreased dramatically the inflow of undocumented Brazilians across the southwest border, Mr. Arcos said.
Mr. Arcos urged Congress to pass comprehensive immigration reform legislation that includes a combination of border enforcement efforts in cooperation with international partners; increased enforcement within the U.S., including an expanded employment compliance and enforcement program to address unauthorized employment; and a temporary worker program that will provide “a legal avenue for employers to fill their labor needs when U.S. workers are available.”
The full text of Mr. Arcos’s testimony is available at http://wwwc.house.gov/international_relations/109/arc072606.pdf.
9. TPS Extended for Somalia
The Department of Homeland Security announced on July 27, 2006, an 18-month extension of Temporary Protected Status (TPS) for nationals of Somalia until March 17, 2008. Under the extension, Somalis who already have TPS are eligible to live and work in the U.S. for an additional 18 months while maintaining their status. DHS also automatically extended the validity of their employment authorization documents for an additional six months until March 17, 2007. Approximately 250 nationals of Somalia (or aliens having no nationality who last habitually resided in Somalia) may be eligible for re-registration.
Nationals of Somalia with TPS must re-register during the 60-day re-registration period, which began on July 27, 2006, and ends on September 25, 2006. For details, see the USCIS press release announcing the extension, http://www.uscis.gov/graphics/publicaffairs/newsrels/Somalia_TPS_060727.pdf; a related fact sheet, http://www.uscis.gov/graphics/publicaffairs/questsans/Somalia_TPS_060727.pdf; and the Federal Register notice, http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-6401.pdf.
10. GAO Analyzes Benefits and Limitations of Using Earnings Data to Identify Unauthorized Work
As the House of Representatives and Senate consider immigration reform legislation, some proposals would give the Department of Homeland Security (DHS) access to earnings data to identify unauthorized workers. To better understand how such data could be used, the House Ways and Means Subcommittees on Social Security and Oversight asked the Government Accountability Office (GAO) to review how the DHS uses earnings data that it already receives from the Social Security Administration (SSA) and recommend changes or improvements.
The GAO noted that access to earnings data maintained by the SSA and the Internal Revenue Service (IRS) could help the DHS target its limited worksite enforcement resources to help identify potential unauthorized work. The GAO outlined key characteristics of the following possible data sources, which the GAO noted contain sensitive personal information:
- SSA’s Nonwork Alien File: This file contains earnings and demographic data for over 500,000 individuals who earned income using Social Security numbers (SSNs) issued for nonwork purposes. The DHS estimated that about one-third are work-authorized.
- SSA’s Earnings Suspense File: This file contains earnings reports with names and SSNs that do not match the SSA’s records. Employers submitting large numbers of unmatched reports may indicate the employment of unauthorized workers. The file also includes much information about U.S. citizens, however, including records that are the result of errors, in addition to persons using false SSNs or SSNs belonging to others, or persons for whom the employer has no SSN. About 8 million to 11 million records are added annually, but the number of unauthorized workers is unknown.
- The Department of Health and Human Services’ National Directory of New Hires: This file contains updated reports on new hires and quarterly wages on almost all workers, including U.S. citizens, for child support enforcement purposes. Over 500 million quarterly wage records and over 60 million new hire reports are entered yearly. The file contains only records with names and SSNs that match the SSA’s records; names and SSNs that do not match are maintained separately.
- IRS’s Individual Taxpayer Identification Numbers (ITINs) with wage income: The IRS could identify taxpayers who filed tax returns using an ITIN and had wage income. To be issued an ITIN, an individual must be ineligible for an SSN. About 530,000 ITIN holders submitted tax returns with wage income in 2001. IRS officials believe that almost all returns filed with ITINs claiming wages are from unauthorized workers.
- DHS’s Electronic Employment Eligibility Verification Transaction Data: DHS maintains transaction records of employment eligibility verification queries electronically submitted by participating employers. Under the voluntary Basic Pilot program, employers made over 900,000 queries in fiscal year 2005. If made mandatory, these data potentially could be used for worksite enforcement.
The full text of the GAO report, “Immigration Enforcement: Benefits and Limitations to Using Earnings Data to Identify Unauthorized Work” (GAO-06-814R), is available at http://www.gao.gov/new.items/d06814r.pdf.
11. State Dept. Announces Retrogression of India Employment-Based Category, Other News
For August, the Department of State’s Visa Office said it has been necessary to retrogress cut-off dates in several employment-based visa categories for India in an effort to hold issuance levels within the applicable annual numerical limits for the affected categories. Employment-based retrogressions include India’s employment-based second preference category, which has become “Unavailable,” and India’s employment-based third preference category, which has retrogressed to April 1, 2001.
Also, the Department noted that immigrant visa number use is approaching the annual limits for the year in many categories, and the supply of numbers remaining for allocation is limited. Therefore, it is increasingly possible that additional retrogressions of cut-off dates in September, similar to those experienced in August, will occur. Readers should not assume visa availability until the cut-off dates are announced. Categories that could experience retrogressions include the Worldwide employment-based fourth preference category; the China employment-based second and third preference categories; the India employment-based first preference category; and the Mexico employment-based third preference category.
A total of 50,000 numbers were provided for use in the Schedule A (EX) visa category established last May. Visa demand in this category is approaching that limit and may require the establishment of a cut-off date as early as October, the Department reported. Once all 50,000 numbers have been made available under the current limitation, processing under this category will end.
Also, the Department has determined the employment-based numerical limits for fiscal year 2006. The numerical limit for the Worldwide employment-based preference category is 143,949.
The full text of the August 2006 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_2978.html.
12. USCIS Issues Final Rule on Affidavits of Support
U.S. Citizenship and Immigration Services (USCIS) issued a final rule, effective July 21, 2006, that applies to any immigrant visa or adjustment of status application decided on or after that date even if the case was filed beforehand. Among other things, the final rule eliminates the affidavit of support requirement in cases where the sponsored immigrant establishes, on the basis of Social Security Administration records, that he or she has already worked, or can be credited with working, 40 quarters of covered employment.
The final rule also clarifies that the sponsor’s income in the year in which the intending immigrant filed the application, rather than the earnings last reported to the Internal Revenue Service, generally bears the greatest evidentiary weight in determining whether the affidavit of support is sufficient, although USCIS may request updated evidence.
The law and regulations require the submission of an affidavit of support in the case of an employment-based immigrant if a relative of the immigrant either filed the visa petition or has a “significant ownership interest” in the entity that did so. The interim affidavit of support regulation defined “significant ownership interest” as an ownership interest of five percent or more in a for-profit entity. The final rule retains the five percent threshold adopted in the interim rule.
Also, several commenters asked USCIS whether the affidavit of support requirement applies to employment-based immigrants if the relative with the significant ownership interest is not a U.S. citizen or resident alien. USCIS explained that, for employment-based immigrants, the purpose of the affidavit of support is to ensure that a relative who could file a family-based visa petition will not use employment as a means to avoid the affidavit of support requirement that would apply if the relative were to file a relative visa petition. Relatives who are not U.S. citizens or resident aliens are ineligible to file relative visa petitions. For this reason,the regulations define “relative,” for purposes of the affidavit of support requirement, to include only those family members who can file relative visa petitions. The final rule clarifies that a relative must be either a “U.S. citizen or a resident alien” for the affidavit of support requirement to apply to an employment-based immigrant.
The final rule, published in 71 Fed. Reg. 35732–35757 (June 21, 2006), is available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5522.pdf. A related Department of State cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_2863.html.
13. Recent News from ABIL Members
ABIL co-founding member Stephen Yale-Loehr, who also chairs the business immigration committee for the American Immigration Lawyers Association, was quoted on July 14, 2006, by GovExec.com on the Senate immigration reform bill. He said that new requirements for employers will help to constrain cheating. The Senate bill requires more stringent job applicant identification, makes employers liable if they show “reckless disregard” when workers present fake documents, and requires employers to store employment documents for five years, he told GovExec.com. He cautioned that the desire for rapid identification must be balanced with privacy concerns. “We need some hard data” on the effectiveness of employment verification technology before making its use mandatory, he said. The full text of the article is at http://www.govexec.com/dailyfed/0706/071406nj1.htm.
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