Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2008

New I-9 Form Released

USCIS has released a new version of the Form I-9, Employment Eligibility Verification.  Employers should start using the revised form (it has Rev. 06/16/08 in the bottom right corner) effective immediately because USCIS will no longer accept older versions.

Because employers are required to complete a Form I-9 for each new hire, the change in the form should be noted.  The substantive changes in the form are minor.

The following documents are no longer acceptable evidence both as identity and as employment eligibility:

  • The Certificate of United States Citizenship (Form N-560 or N-561);
  • The Certificate of Naturalization (Form N-550 or N-570);
  • The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (“green card’”);
  • The Unexpired Reentry Permit (Form I-327); and
  • The Unexpired Refugee Travel Document (Form 1-571)

The revised List A of the List of Acceptable Documents now includes the most recent version of Form I-766, Employment Authorization Document.

Finally, the instructions regarding Section 1 of Form I-9 now indicate that the new hire is not required to provide a social security number unless the employer participates in the E-Verify program.

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Travel Abroad on Advance Parole and Switching Employers

A very frequent two-part question we receive from current and prospective clients who are expecting visa number and have used AC21 to switch employers and are no longer with the original employer who sponsored their green card is 1) whether they can travel abroad using advance parole (AP) document issued by the former employer and 2) what should they respond, upon return, when questioned by a border agent about their employment situation.

Before we go into the technicalities – there is one major rule which warrants repeating – be frank and honest with the immigration or border officers.  These are highly qualified professionals who are trained to detect evasive, misleading, or false answers and if caught in a material misstatement, the consequences may be very significant.

Now, the American Competitiveness in the Twenty-first Century Act (AC21) was intended to address exactly the kind of situation to which the two-part question above applies.  After completing an AC21 switch of employers, the employee can freely continue his or her green card application and avail him- or herself of all of the benefits of pending green card adjustment of status application – including advance parole and EAD.  Thus, employees who have properly pending adjustment of status and unexpired advance parole document from a former employer can travel abroad and re-enter with such advance parole document with no issues.

Many clients are nervous to answer the question whether they are still employed by the sponsoring employer when, in fact, they are not.  However, the AC21 process is intended to address this kind of situation and we urge foreign nationals, who are asked this question upon their return to the country, to answer truthfully and explain to the border agent that they have done an AC21 transfer.

Some immigration attorneys advise against filing anything in connection with an AC21 job transfer.  However, we do advise our clients who switch jobs under AC21 to file a letter with USCIS.  The added benefit of this is that the employee has a letter documenting the AC21 transfer and which letter briefly explains the law and the circumstances of the AC21 transfer.  Having such letter and presenting it to the border agent unon re-entry is a nice way to deflect a skeptical border agent of the propriety of the AC21 job transfer.

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PERM Fiscal Year 2008 Statistics

The Department of Labor’s Office of Foreign Labor Certification has released its October 2007 – May 2008 statistics on PERM processing.  It is interesting to note that 44% of the active (pending) PERM cases were in “Audit” stage, most likely in connection with the recent decision to audit all PERM applications filed by a major immigration law firm.

Among the other statistics are breakdown by state of intended employment (California is,  not surprisingly, the largest); aliens’ countries of nationality (India is top); and top job titles (Computer Software Engineers are top).

Read the full report here.

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New Medical Exam Form I-693 Goes Into Effect

The USCIS has released a modified version of Form I-693, Report of Medical Examination and Vaccination Record.  The most recent form is dated June 5, 2008 and previous editions will be accepted only until July 14, 2008.

The new form can be obtained from USCIS’ website.

For applicants for adjustment of status who are in the process of preparing their medical forms should ensure that their civil surgeon has the most recent version of the form, or if the form is already completed, it should be filed before July 14, 2008.

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GAO: Visa Waiver Pre-Registration Program Will Cause Backlogs

The Government Accountability Office (GAO) has commented on the program announced recently by USCIS which aims to pre-register all travelers to the U.S. coming from Visa Waiver Program (VWP) countries.  We wrote extensively about the program earlier in June.

Under the new program, which is optional until January, when it becomes mandatory for all of VWP travelers from 27 countries, all travelers to the U.S. must pre-register before traveling to the U.S. through an online system by entering personal information such as passport number, intended dates of travel, etc.  If the system rejects the pre-registration, the traveler must apply for a visa at the U.S. consulate.

The GAO estimates that between 1% and 5% of the travelers could be rejected by the online pre-registration system. This amounts to an estimated 500,000 additional visa applications.  Given the relatively short timeline between announcement (early June 2008), the optional launch date (August 2008)  and the mandatory cut-off date (January 2009), there will  be many travelers who either 1) do not know about the pre-registration until shortly before their travel or 2) do not apply for pre-registration until a point when a rejection from the pre-registration system would make it impracticable to schedule a visa appointment and apply for a U.S. visa.

Homeland Security and the State Department indicate that they are aware of the potential of increased demand in visas early next year, but they say they are prepared to handle it.

We are advising our VWP clients  to apply as early as possible for their pre-screening clearance and be flexible in case they need to schedule a visa appointment and interview.  We also urge our clients to check the Consulate Wait Times website for some idea on how long it takes to schedule and attend a visa interview.

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The “A Number” Explained

We have all heard or seen references to the “A Number.”  Many USCIS forms ask for it, and many of our clients have asked us, “What exactly is the ‘A Number’?”

The “A Number” stands for Alien Registration Number.  It is a number that starts with an “A” followed by eight-digits.  Not all foreign nationals have an A Number.  Most people get A Number when they apply for adjustment of status, seek employment authorization document (EAD), apply for a V visa or are subject to deportation proceedings.

There are four separate kinds of A Numbers:

  • Eight-digit A Numbers are manually assigned at local offices. If you have one of these numbers, simply treated it as if it was “0″ plus the number;
  • Nine-digit A Numbers that start with the digit 1 are used for employment authorization cards, usually related to students;
  • Nine-digit A Numbers that start with the digit 3 are used for fingerprint tracking of V visa applicants;
  • All other nine-digit A Numbers  are permanent A Numbers and remain permanently with you for life.

Many USCIS forms ask for the A Number and we have advised our clients to enter “NONE” if they have not been issued one  yet.  However, if you have an A Number, it is important to enter it on any USCIS forms.

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USCIS Expedited Processing Criteria

USCIS has released a guidance on the criteria it uses to grant or reject a request for expedited processing (such as for Re-entry permit, etc.). All expedited processing requests are reviewed on a case-by-case basis. The criteria which take part into the decision of approving or rejecting each one are:

  • Severe financial loss to company or individual
  • Extreme emergent situation
  • Humanitarian situation
  • Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
  • Department of Defense of National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
  • USCIS error
  • Compelling interest of USCIS

This list is helpful as it provides some insight at the type of situations where USCIS would grant an expedited processing request. We have used many of these criteria, as applicable, but we wanted to share them for our clients’ and our readers’ benefit.

more-on-reentry-permits-and-expedited-processing.gif

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2-Year EAD Update

USCIS has released more information about the scope of the new rule which allows USCIS to issue 2-year EADs.

The rule becomes effective on June 30, 2008 and after this date, USCIS will issue 2-year EADs only to individuals who have filed petitions to become a lawful permanent resident (LPR) using Form I-485 and have requested an EAD but are unable to become LPR because a visa number is not currently available.  Upon renewal of EAD, USCIS will look at the visa bulletin and issue a 2-year replacement EAD only if a visa number is not currently available for the petitioner.

On the other hand, applicants who have filed I-485 and EAD applications and for whom there is a visa number immediately available would get only 1-year EAD document.  Applicants whose visa numbers have retrogressed since their I-485 was filed would get 2-year EADs.

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Limited I-140 Premium Processing Resumes on June 16

We wrote earlier today about the pending announcement that USCIS is restoring the possibility of filing I-140 via premium processing.  As we discussed earlier, the premium processing is limited to workers who are nearing the end of their sixth year in H-1B nonimmigrant status.

The premium processing procedure will guarantee 15 calendar-day response by USCIS for a non-refundable fee of $1,000.  To take advantage of the I-140 premium processing, the I-140 petition must be filed on behalf of aliens:

  • who are currently in H-1B nonimmigrant visa status;
  • whose sixth year will end within 60 days;
  • who are only eligible for for a further extension of H-1B nonimmigrant status under section 104(c) of AC21 (permitting 3-year H-1B extensions upon approved I-140); and
  • who are ineligible to extend their H-1B status under section 106(a) of AC21 (permitting 1-year H-1B extensions if I-140 or the underlying labor certification is pending for at least 365 days).

Even though the premium procedure is limited in certain cases, it brings welcome relief to a number of H-1B holders who are nearing the limit on their H-1B status.  Please contact us for more information on how you can take advantage of this new rule.

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I-140 Premium Processing to Resume in Limited Circumstances

BREAKING NEWS

The USCIS has confirmed that on July June 16, 2008, it will resume premium processing for I-140s in certain limited circumstances. It is expected that these limited circumstances will cover cases where beneficiaries whose H status will expire within 60 days of filing the request and who need I-140 approval to become eligible for the additional H time. This change is intended to address circumstances where an individual needs the approved I-140 to receive additional H time under AC21.

The USCIS has not yet issued an official notice and we will continue to monitor the situation and update as we learn more.

Update: the starting date is June 16, 2008, not July 16, 2008, as we reporter earlier.

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