Labor Immigration Law

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• The Form I-151, a long out-of-date version of the Alien Registration Receipt Card (”green card’”);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.

The debate surrounding E-Verify is in full force.  In the meantime, the federal government and many states are busy implementing regulations requiring employers to become E-Verify compliant and start using the E-Verify system for all of their new hires.

The latest regulation is an Executive Order 12989 as Amended, dated as of  June 6, 2008, which requires all federal agencies and departments to require from all federal contractors who are also employers to become E-Verify participants and ensure that all new hires are subject to E-Verify checks.

Section 5(a) reads: “Executive departments and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.”

Based on this Executive Order and other federal and state regulations, it is clear that E-Verify is here to stay.  While the debate on its  effectiveness and burdens on employers will continue, there are a number of “carrots” which make E-Verify participation extremely hard to reject.  In addition to the ability to obtain federal contracts, many employers must become E-Verify employers in order to be able to hire or extend F-1 visa OPT documents for highly qualified foreign graduates.

The good news is that we at the Capitol Immigration Law Group can help you with your E-Verify compliance.  We are E-Verify Designated Agent and we allow you to outsource your E-Verify compliance work to us.   As a law firm, we not only provide E-Verify processing but we can also advise your company on developments in the law which can affect your company and employees.  Please contact us for more information on how your company can become E-Verify compliant in few easy steps.

The USCIS announced yesterday that it is publishing a Notice of Proposed Rulemaking (NPRM) to increase the maximum amount of time a TN visa holder can remain in the U.S. before seeking readmission or extension of stay from one year to three years. The goal behind the proposed rule is to provide TN visa holders similar visa terms as other skilled worker visas, such as H-1B.

Under the current regulations, TN visa holders must seek extensions or readmission every year. While in many circumstances such extension or readmission is without issues, TN visa holders often complain of the cumbersome yearly readmission requirements to which H-1B or L-1 visa holders are not subject. The new rule seeks to address these concerns and provide more certainty and uniformity among skilled professional visa categories.

The NPRM, once implemented as a final rule, will provide a number of benefits to all stakeholders. TN visa holders will not have to travel outside of the U.S. or seek extension every year thus saving money and time. U.S. employers will have greater certainty that TN beneficiaries will be allowed longer terms. Finally, the USCIS will have a reduced work load due to the decreased number of TN visa extensions.

Update: an advance copy of the proposed rule can be found here.

About the TN Visa. Canadian and Mexican citizens seeking temporary entry to the United States as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.

We wrote earlier today about the improvements to the E-Verify program.  In the past weeks we have been approached by some of our corporate clients and asked whether we would provide E-Verify services.  In addition to advising employers on immigration, E-Verify, and employment authorization compliance, we are now registered with USCIS as E-Verify Third Party Agent.

This E-Verify Third Party Agent status allows our employer clients to outsource the E-Verify processing to us while they remain focused on their core business processes.  If you are an employer who wishes to register under the E-Verify program and take advantage of the electronic employment authorization verification please contact us.  We provide full service E-Verify solutions to our employer clients and we would be happy to discuss your needs.

USCIS just announced a couple of significant enhancements to the E-Verify program which should increase its accuracy and appeal to employers.  One of the main concerns of E-Verify is that a fair number of legitimately authorized workers receive a non-confirmation which has consequences, ranging from embarrassment to potentially losing their employment.

About E-Verify. E-Verify is a program which provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers.  The program is operated by USCIS in cooperation with the Social Security Administration (SSA) and it has evolved over the past 10 years to allow employers a quick (and ideally) accurate way to determine the employment eligibility of a new hire.  Currently, there are 64,000 employers who participate in the program with approximately 1,000 new enrollments weekly.  Our firm regularly provides advice to employers on E-Verify participation and compliance and we have noticed increased interest from employers.

The Changes.  Starting immediately, the E-Verify system will include naturalization data, which will help instantly the citizenship status of naturalized U.S. citizens hired and subject to verification by E-Verify employers.  According to USCIS, naturalized citizens who have not yet updated their naturalization records with the SSA are the largest category of properly authorized employees who face an initial E-Verify mismatch.

The second immediate change is that E-Verify will also include real-time arrival data from the border inspection and arrival system.  The goal of this integration is to reduce the number of mismatches related to immigration status for newly arriving workers who enter the U.S. legally through a point of entry.

Among the future plans for E-Verify - have USCIS sent back information to SSA to avoid future mismatches from happening and integrate Department of State passport records.

The U.S. Department of Justice announced May 1, 2008, that it has imposed a civil fine of $45,000 to iGate Mastech, Inc., a Pittsburgh computer consulting company in connection with the company’s alleged discrimination against United States citizens in its employment practices and advertisements.

The DOJ found that between May 9, 2006, and June 4, 2006, the company placed 30 job ads for computer programmers that expressly favored H-1B holders to the exclusion of U.S. citizens or green card holders.  Some of the ads contained text identical or similar to, “Only H-1s apply, and should be willing to transfer H-1B.”

Such discrimination is prohibited under the U.S. Immigration and Nationality Act.   “We are committed to protecting the right of all authorized workers in the United States against citizenship status discrimination,” said Grace Chung Becker, Acting Assistant Attorney General for Justice Department’s Civil Rights Division.

While we are uncertain of the motives of the company to place such ads, the civil fine settlement comes as a result of a complaint by the Programmers Guild (PG) in 2006.  According to PG, iGate Mastech is just one of at least several companies engaged in the practice of discriminating against U.S. workers “in favor of cheap H-1B workers.”  If these are the motives, DOJ’s actions should serve to the great benefit of the labor immigrants.  It has been one of the main arguments of the H-1B program critics that the program undercuts the salaries of U.S. professionals.  By eliminating companies who intentionally seek foreign talent at a cheap rate, DOJ helps to ensure that the H-1B program’s critics have less of an argument against it.

Here is DOJ’s press release.

The Washington Post published today an article about the H-1B visa program and how its benefits and problems affect immigrants, employers and American workers.  The article is fairly short but it compresses the feelings of the three major stakeholders in the H-1B visa program debate.

The U.S. Employers
The H-1B program was designed to help U.S. companies obtain temporary skilled foreign workers to assist in projects for which there is a shortage of U.S. workers.  During the dot-com boom, most of these H-1B visas were used by software companies attracting talented software engineers from India, China, or eastern Europe.  Today, many of these H-1B visas are used by a more diverse group of U.S. employers, but software engineers are still among the highest in demand.

Based on the number of applications for this year’s H-1B season, 163,000, compared to last year’s number of 140,000, the demand for skilled foreign labor is strong and getting stronger. According to the Post article, companies, “offer the same salaries and perks whether you’re from Baltimore or Bangladesh . . . but [they] simply cannot find enough qualified U.S.-born staff to fuel [their] growth.”

The Foreign Talent
Foreign skilled workers’ stake in the H-1B visa program is often distorted.  The Post article highlights how many of these skilled workers come to the U.S. on H-1B visa and use the H-1B visa’s “dual intent” status to start a procedure of obtaining a permanent residency.  This, after all, is how this great country was built, and such influx of talent should not only be temporary, for the duration of the H-1B visa of six years, but should be made permanent to that the U.S. economy, as a whole, benefits.

The Critics
There are critics of the H-1B program, of course, and the Post article outlines their position.  Some critics consider the H-1B program a “cheap labor” allowing U.S. businesses to hire and sometimes exploit foreign workers who come to the U.S. and often have little or no bargaining power.  While such comments are justified in certain occasions and based on past cases by some employers, such cases seem to be limited to few individual employers and the Department of Labor is tasked with ensuring that no wage discrimination and workplace abuse takes place.

Conclusion
The debate about the benefits and disadvantages of the H-1B program will continue for as long as the program exists.  In economic slowdown, it is easy to point the finger to foreign workers as taking away jobs from qualified American workers.  But we should not lose sight of the greater benefit to the economy caused by the constant influx of educated foreigners who allow U.S. companies to stay competitive in a global economy.

As expected, USCIS announced earlier today that it has received enough H-1B petitions to meet the cap for fiscal year 2009.  The 20,000 H-1B cap for holders of advanced degrees has also been reached.

Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008.   Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

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.

We wrote earlier about the F-1 Visa OPT extension proposal.  We are happy to report that the OMB review has been complete and that the rule is expected to be published in the Federal Register during the week of April 7, 2008, at which time of publication the rule becomes effective. The new OPT rule brings great relief to many students or OPT holders who are in a difficult position because of the timing of the H-1B filing season and the expiration of their OPT.

We have obtained an advance copy of the DHS rule and we are providing a PDF of the rule as well as detailed analysis below.

Summary and Analysis of the New OPT Rule

29 Month OPT for STEM Students.  The 12 month limit on F-1 OPT is extended by 17 months for a total of 29 months  for holders of degrees in certain Science, Technology, Engineering and Mathematics (STEM) areas.  Eligible degrees are:

• Actuarial Science. NCES CIP Code 52.1304
• Computer Science: NCES CIP Codes 1 1 .xxxx (except Data Entry/Microcomputer Applications, NCES CIP Codes 11.06xx)
• Engineering: NCES CIP Codes 14.xxxx
• Engineering Technologies: NCES CIP Codes 15.xxxx
• Biological and Biomedical Sciences: NCES CIP Codes 26.xxxx
• Mathematics and Statistics: NCES CIP Codes 2 7 . m
• Military Technologies: NCES CIP Codes 29.xxxx
• Physical Sciences: NCES CIP Codes 4 0 . m
• Science Technologies: NCES CIP Codes 41 .xxxx
• Medical Scientist (MS, PhD): NCES CIP Code 51.1401

Additional Requirements.

• Student must be currently participating in a 12-month OPT and must be working for a U.S. employer in a job directly related to the student’s major area of study (which, of course, must be one of the areas listed above)
• Student must have successfully completed a bachelor’s, masters, or doctoral degree from a SEVIS-certified educational institution.
• The student has not previously received a 17-month OPT extension.
• The Designated School Official (DSO) must recommend the 17-month OPT extension after verifying that the student otherwise qualifies for the extension.
• Employer must be E-Verify registered.
• Employer must agree to report the termination/departure of the student to the DSO.

Application.  Students who qualify and wish to extend their OPT by 17 months must file form I-765 and attach the applicable fee.  Students who timely file their OPT extension application will be allowed to continue employment until the final decision of the I-765 form or 180 days, whichever comes first.  Under the new rule, students can file his or her I-765 up to 90 days prior to his or her program end date, and up to 60 days after the program’s end date.

Non-STEM Students

There is substantial relief for non-STEM degree students whose OPT are set to expire.  Under the new rule, duration of status and work authorization will be extended for a student on OPT who is the beneficiary of a timely-filed H-1B petition requesting an employment with starting date of October 1.  This applies to all students, not just STEM students.  This renewal terminates automatically upon the rejection, denial, or revocation of the H-1B petition.

On the eve of April 1st, the day when many H-1B visa-seeking employees and companies file their work visa petitions, the Wall Street Journal (paid subcription required) reports on the problems which many U.S. businesses face in hiring foreign skilled workers.

As many of our readers know, the H-1B visas enable U.S. companies to hire skilled foreign workers for jobs which are difficult to fill with domestic workers.  Last year, the U.S. Citizen and Immigration Services (USCIS) received  124,000 applications for H-1B visas, nearly double the yearly cap of 65,000 set by Congress.  Because the number of applications exceeded the available number of visas, the USCIS used a random lottery to determine which applications will be approved.

Because the filing window opens on April 1st, for a starting date as early as October 1st, the applicants have only one shot at applying for, and getting a visa.  If the visa petition is received by the government a week late, or if the paperwork is not properly prepared, the company and its potential employee are out of luck because they do not have a chance to amend and re-file.

Many companies and applicants who are participating in the H-1B application season are hoping that the slowdown in the economy will drive down the applicants’ numbers this April.  However, as the Wall Street Journal reports, many softening sectors in the economy’s foreign worker needs are offset by  very strong demand in other areas, such as technology.  Also, just because the filing window is so small, many employers will try to make their hiring decisions early, and apply for their foreign nationals’ work visas in April.

What this year’s H-1B filing season will bring remains a mystery, but anecdotal evidence from our colleagues at other law firms suggests that demand for the H-1B visa is still very strong  and almost certainly there will be a lottery to distribute the excess H-1B visa applications.