Following is another update on developments in the immigration law.  If you would prefer to be removed from our list, please let us know.

In this update:

H-1B Lottery Results Expected within 6 Weeks
"Cap-Gap" Now Available to All H-1Bs Chosen in the LotteryOPT Extension Update
H-2B Program "Fix" Considered in Congressional Hearing
Large "Raid" at Pilgrim's Pride Plants Throughout U.S.
Iowa Anti-Immigration Bill Passes the House

H-1B Lottery Results Expected within 6 Weeks

The H-1B lottery has been conducted.  We received a receipt for the one premium processing case we filed.  The other receipts are not expected for about 6 weeks.  We will get a receipt only if the case has been chosen in the lottery.  Other cases will be sent back with the filing fee.

"Cap-Gap" Now Available to All H-1Bs Chosen in the Lottery

As reported earlier, ICE (Immigration & Customs Enforcement) issued a rule that H-1B applicants chosen in the lottery whose status expired before Oct. 1, 2008, could still remain and work in the U.S. until Oct. 1 if they had asked for a "change of status" rather than consular notification. 

Now CIS (Citizenship & immigration Services - the agency that adjudicates the H-1B applications) has issued guidance on a procedure to follow if the H-1B was not for change of status, but you would like to change it.  A list of emails is provided to notify the Service Center of the change request, and instructions are given about what to say on the email.

We cannot notify the Service Center of this unless your case is chosen in the lottery.  We will monitor the receipts and make these notifications for any affected cases.

OPT Extension Update

As reported earlier, some students on OPT ("optional practical training") may extend their work authorization to a total of 29 months if they have a "STEM" (science, technology, engineering or math) degree AND if their employer is signed up for E-Verify.

The list of the acceptable degrees is found at http://www.ice.gov/sevis/stemlist.htm.

E-Verify is an electronic employment verification system.  Registration for E-Verify is now required in certain states by state law (not Iowa as yet!) either for all employers or for employers contracting with state government.  Otherwise, E-Verify is optional.

We would be happy to discuss whether E-Verify makes sense for your company or is required in any of your company's locations.  It is possible to register one work site or office for E-Verify and not register the whole company.

ICE  has also updated the SEVIS (the electronic student registration and tracking program) to allow the foreign student advisors to recommend the OPT extension, as required by the regulations.  Therefore, we can now submit applications for the OPT extensions if desired (although most people will want to wait to see if they are chosen in the lottery, which would make the extension unnecessary).  Please let us know if you would like to pursue this option.

H-2B Program "Fix" Considered in Congressional Hearing

The H-2B program is for seasonal, non-agricultural workers.  Like the H-1B program, there is a numerical limitation ("cap") on the program, although it is divided into two parts so that the warmer parts of the U.S. do not have an unfair advantage over us cooler climates.

Every year, the H-2B program is also oversubscribed, harming scores of employers who count on a seasonal workforce.

Last week, the House of Representatives held a hearing on the H-2B program.  It was scheduled to last for 1 and half hours, but lasted five hours!  More than 300 employers personally came to the hearing, and more than 1,000 letters were submitted to the committee members from employers all over the country.  Several Congressmen testified as did two H-2B employers.  One person testified against the program, saying that H-2B workers were systematically abused and under paid, but offering no evidence of this.

Although it is far from certain, it looks like we may get some relief in this program - more H-2Bs - if the momentum of the hearing can keep going through Congress.

We know some of our clients are very interested in taking advantage of this program, but have been prevented from doing so because of the nature of the cap and the timing of the work season.

If you are interested in this program, we would be happy to help you contact Congress about it.  It is important to keep this on their radar screen so something can be done!

Large "Raid" at Pilgrim's Pride Plants Throughout U.S.

ICE continues to aggressively enforce the immigration laws, and is focusing particularly on ID theft cases.  Last week, 280 persons were arrested at Pilgrim Pride plants at various locations.  Many were charged with federal ID theft.  Interestingly, the investigation started with the Department of Labor.  Although the details are not yet known, evidently the government became aware of the problem through use of the labor certification program.

Please contact us if you would like additional information on work site enforcement, I-9s and other compliance procedures.

Iowa Anti-Immigration Bill Passes the House

House File 2686 passed the House last week, but we hope it will stop there.  This bill, if passed by the Senate and signed by the Governor, would create additional paperwork burdens for employers and have other unfortunate consequences.

It would require that all new hires in Iowa provide to the employer a driver's license or non-driver's ID issued by Iowa or the contiguous states within 10 days of employment.  The employer would be required to sign another form (like an I-9) and keep a copy of the document.

The bill would also criminalize ID "theft" from a fictitious person (a fake ID would become a stolen ID) and would make working under a false or stolen ID "theft" under Iowa law.  The value of the theft would be the value of the work done. 

The bill would also prevent a person not lawfully present in the U.S. from being released on bail if arrested for any crime.

The bill also contains new rules about whether a worker is an independent contractor or employee in the construction industry.  Re-classification of a person as an employee when the employer thought he/she was an independent contractor is a very serious and costly outcome, not to mention that it could lead to an I-9 violation because I-9s are only required for employees - not independent contractors.

You may contact your Iowa Senator to oppose this legislation by going to http://www.legis.state.ia.us. 

Lori Chesser

Dear Clients:

The following is an update on breaking news in immigration law and related information. 

H-1B Cap Reached

As expected, CIS received more than the allotted 65,000 "regular cap" cases and 20,000 "master's cap" on the day applications closed.  Therefore, no new (first time) H-1B filings may be made for the 2009-2010 fiscal year UNLESS they are for exempt jobs (those located on college campuses, physicians with Conrad 30 waivers, and those in certain non-profit or governmental research institutions or non-profits affiliated with colleges or universities).

This year, CIS took all filings made during the first 5 business days (April 1 - 7) of the fiscal year.  They will now proceed to choose the 20,000 master's cap cases that they will process.  After this selection is made, they will put the master's applications that were not selected into the regular cap pool and select 65,000.  All selections will be made on a random basis.

Those not selected will be sent back the filing fee and the full filing.

Be sure to let your Congressmen know how this situation is adversely affecting the global competitiveness of your business (details at the end).

OPT Extended in Certain Limited Situations

Many foreign students are working on "optional practical training" (OPT) for the 12 months following graduation and their companies sponsor them for H-1B in hopes of winning the lottery.

Two problems exist in this scenario:

(1)  If the student's OPT runs out before Oct. 1, there is a "cap gap" and the student must stop work and re-enroll in school or go home to await H-1B processing or

(2) if the student is not chosen in the H-1B  lottery, the employment ends at the expiration of the OPT with no chance for extension.

Immigration & Customs Enforcement ("ICE"), the agency charged with regulating foreign students (go figure), has announced a new rule effective immediately to address (somewhat) these two problems. 

First, the rule allows a student working on OPT whose H-1B application has been accepted for processing in the lottery to continue to work after the OPT expires up to the Oct. 1 start date of the new fiscal year PROVIDED THAT the I-129 form (H-1B petition) requested "change of status."

This rule, while somewhat helpful, is problematic in that if there was going to be a cap gap, the I-129 would likely not have been checked for "change of status" as the student would not have been eligible for a change of status when the petition was filed.  CIS, the agency in charge of adjudicating the I-129s, has been contacted and has pledged to try to come up with a solution - perhaps allowing petitioners chosen to amend the applications.  We will keep our fingers crossed.

Second, the rule allows students in OPT to apply for an extension of 17 months IF the following is true:

- The student has a job offer in science, engineering, technology or math (as defined in a list they have devised)

- The company at which the student is working is registered, using and is in good standing with the E-Verify electronic employment verification system.

While ICE appears to be open to discussion about what jobs should be on this list (public comments will be accepted on the rule, which may be revised in the future, until June 9), the requirement for a company to sign up for E-Verify just to keep a good foreign student worker is a new twist and one that may prevent this rule from being very helpful.  See below for more info on E-Verify.

If the student qualifies for the OPT extension, he or she goes to the Designated School Official to request the extension recommendation on the I-20, and then files an I-765 ($340 filing fee).  In a departure from prior rules, the student may continue to work for up to 180 days after the initial OPT expiration even if the I-765 is not approved if the extension was timely filed.

If the OPT is extended, it effectively gives the student a second chance at the H-1B lottery, but it would not guarantee that the student could continue to be employed by the company given the uncertain nature of the H-1B program.  It would also possibly give the employer time to file a PERM application if that makes sense in the particular job and in light of the long waiting lines for green cards.

E-Verify - To Register or Not to Register - That is a Real Question

The E-Verify program is meant to help employers determine if a new hire is eligible to work in the United States.  Is a way for employers to access the Social Security Administration ("SSA") and CIS databases after completing an I-9 for a new hire and get "immediate" (within 3 federal government business days) confirmation that the hire is authorized.

It sounds really good, but there are some problems.

First, the SSA database has something like 7.8 million data errors and was not meant to be used to verify employment.  The most common error is listing newly-naturalized citizens as unauthorized to work.

Second, E-Verify cannot detect use of a legitimate SS card by someone else (unless the photo-recognition tool is available - which it is not for all hires).  Therefore, even if the hire is cleared by E-Verify, the person may not in fact be authorized to work.

Third, about 7% of all queries cannot be answered "immediately".  If there is not an immediate confirmation, a tentative non-confirmation is issued, which can be challenged by the employee.  SSA and CIS are to get back to the employer within 10 federal government business days with a final confirmation or non-confirmation after information is submitted to challenge the tentative non-confirmation.  The employee is not to be terminated during this review.  E-Verify cannot be used for pre-hire screening either.  Therefore, an employer may be training an employee who will ultimately not be confirmed to work.

Finally, the Memorandum of Understanding that the employer must sign with E-Verify allows the government to inspect records, including all employment records, to confirm compliance with E-Verify.  This provision arguably negates the employer's Fourth Amendment rights against unreasonable search and seizure.

However, E-Verify does have certain benefits, such as ICE considers employers who are registered for and properly using E-Verify to be "good employers" and gives them the benefit of the doubt in cases of confirmed unauthorized employment.  Remember that Swift was never prosecuted as a company after the infamous 2006 raids, presumably in part because it was using E-Verify (then the "Basic Pilot" program).

A copy of the MOU is attached for your review.  If you are interested in registering or exploring E-Verify more thoroughly, we would be happy to assist.

Social Security No-Match Rule Back in Play

In late March, ICE published a notice that it has (in its view) satisfied the federal judge's concerns about its original no-match regulation and expects to put the rule into effect after the 30-day comment period (April 25) and the hearing to dissolve the court's injunction against implementation (June 20).  Hold your breath for more developments.  In any case, no-match letters will not be mailed before the end of June.  We will update you on the status of the regulation and how to comply, but as of now, the rule is substantially the same as it was published last August.

Welcome to Nikki Mordini!

The Davis Brown Immigration Department would like to welcome Nikki Mordini, who joined us Monday as an attorney focusing on removal/deportation,criminal and family law.  She has three years experience in these areas with another firm.  Prior to law school she was a advocate for domestic abuse victims.  We are thrilled to have her as part of our team.

Our department now numbers 11 members:  Lori Chesser, senior attorney and chair; Amy Landwehr, senior attorney (focusing on business immigration and international adoption); Denise Claton, attorney (focusing on PERM applications); Nikki Mordini, attorney (focusing on removal/deportation, criminal and family issues); Barb Waldron, paralegal; Kerry Ruth, paralegal; Gina Johnson, paralegal (fluent in Spanish); Natalie Rivera, administrative assistant (fluent in Spanish); Robin Hanson, administrative assistant and database guru; Stacie Miller, administrative assistant and billing guru; and Ben Johnson, clerical assistant.

Look for G-28s that we will be sending to clients with pending cases so that we can change our address with the Service Centers and local offices.  You will be asked to sign the G-28s to indicate the address change and send them back in the envelopes provided.  We will send them to CIS or ICE per their instructions so that your mail will have the best chance of reaching us in a timely manner.

More on this transition to come!

Contact Congress

As always, so many of our problems could be fixed if Congress would only act on immigration reform.

An easy way to contact Congress is to go to www.aila.org (American Immigration Lawyers Association) and enter your zip code in the "Contact Congress" button and hit "Go"!  Specific messages on H-1B and other urgently-needed legislation (and some proposed legislation that is NOT needed) is available for your use, as well as direct email contact forms and addresses.

Even more effective is calling or faxing personalized messages to explain your particular situation.

Even more effective is setting up a meeting with your Congressmen when he is in town (just call the local office and ask when that will be).

Even more effective is going to DC to meet there - but we'll settle for an email  - don't worry!

We would be happy to assist in any of these alternatives.  As the ad says:  Just do it.

Lori Chesser

The Davis Brown Law Firm provides A Guide To Doing Business In Iowa as a service to clients. We have access to more than 130 Guides For Doing Business for Countries, States or Provinces through our relationship with Lex Mundi.

Click above for the associated document.

The content for the manual was written and edited by Deborah M. Tharnish, Sharon K. Malheiro, William P. Kelly, and Susan J. Freed. 

Contact your attorney for more information.

Click to download the associated document.

Davis Brown attorney Jo Ellen Whitney notes in this article as of January 28, 2008 there have been significant changes and potential changes to the Family and Medical Leave Act which fall into three basic categories:

 Click above for the associated document.

The main questions posed include:

• The process of forming a new company
  
• The process of financing a new company
  
• The possible paths for a new company
  

Attorneys Beverly Evans and Julie Johnson McLean's presentation is a popular topic for local groups and organizations.

Click Here to view the SlideShare show of the Start-Up Journey: Forming and Financing a New Company. SlideShare is a free resource to share presentations on the web.

Beverly Evans wrote the following article about the requirements and issue.

Click above to download the associated document.

Davis Brown attorney Margaret Van Houten wrote the following article including case information and what it means for employers sponsoring 401(k) plans. 

Bev Evans wrote the document about requirements of the amendments. 

Click above to download the associated document. 

Sharon Malheiro wrote the following article including definitions, leaves available, maximum leave allowed, and more information. 

Click above to download the associated document.

Click above to download the complete document.

In cooperation with the Iowa Department of Economic Development, the committee has begun developing an interactive webpage that will attempt to catalog and describe the programs available. The website (http://www.iowabar.org/Committees/Economic.nsf) is expected to be completed soon. We encourage you to participate in its bulletin board feature.

The committee will also sponsor a regular column on economic development in the Iowa Lawyer magazine. Finally, it will examine programs, take legislative positions it deems are beneficial to economic development in the state as a whole, and continue to have programs on economic development in connection with other bar association programs.

Iowa’s metropolitan areas are doing well; Des Moines was recently named 26th in the nation for economic development and Cedar Rapids was in the Top 100.  Our rural communities are doing pretty well economically, but are losing population.  In fact, one of the key problems we have as a State is the shortage of workforce.  We have focused on finding jobs for people; now, we need to find people for jobs. 

Some factors are relevant in the discussion of moving Economic Development forward. First, Iowa ranks 49th in the nation for business start-ups, yet is one of the top five states for business continuity.  Approximately 1/3 of Iowa business owners are over age 55 and one-tenth of owners are over age 65.  Notably, the average age of farmers in Iowa is 59 ½ years old.

Next, employees are more mobile than ever before. More than one out of two workers today in the United States have worked for their employer less than five years.

Finally, foreign corporations employ one-third of the people in Iowa working in manufacturing.  In 2002, eight percent of the leads received by the Iowa Department of Economic Development were from foreign companies.  In 2007, thirty-three percent of the leads have been from foreign corporations. 

We have to hold onto the businesses in Iowa.  If you look at the percentage of businesses owned by someone over 65, and the average age of farmers, we must focus on succession planning. 

Communities have a real interest in succession planning, as does the owner’s family. The lawyer should take the lead role in that early succession planning. 

A widow seeking to sell her husband’s business recently placed an ad in the Wall Street Journal.  That’s not the way to do it.  Selling a business that way minimizes assets to the family and leaves the community with very little opportunity to hold onto that business.

Communities must build their workforce by making them a desirable place to work and play.  A majority of Iowa’s college graduates leave for other states. We need to retain these individuals and recruit to Iowa from other states.

Iowa has always been a welcoming state for immigrants.  In Storm Lake and Denison, sixty percent of the children in school are non-traditional students.  Those communities are prospering.

Immigrants provide opportunity for our state.  I was approached by a group of Southeast Asian business leaders not long ago wanting to start a bank with branches in cities with high percentages of Southeast Asians. 

We need to be relentless talent scouts, set the stage for innovation and change, and aim toward value creation and entrepreneurship.  Increasingly, communities are thinking regionally as we are competing globally, not with the neighboring town. 

Agriculture is a great strength in Iowa.  Consequently, value-added agriculture is certainly a good approach for some of our small communities. 

Rembrandt, in Northwest Iowa, has a new $20 Million expansion to its egg-laying complex.  There are five dairy farms recently started in Iowa as a result of a project to attract Dutch dairy farmers to Iowa in a joint venture between the Iowa Farm Bureau and Iowa State University Extension.  Three of the dairy farms are in Butler, one in Poweshiek and one in Pocahontas County.  The dairy farms in Butler have now attracted a cheese factory, which will also come from the Netherlands.  A Clarinda-based processor or organic dairy products will ask to have its shares listed on a German stock exchange.  The Dutch National Extension Service estimates over the next decade, 7,000 Dutch dairy farmers will resettle.  If you are interested in learning more about the Dutch dairy project, talk to Tom Lawler, a member of our Committee, Lori Chesser or look to our Bar website.  There is a never-ending need for food and value-added agriculture builds on our strengths.  So, think value-added agriculture for future success.

While there are a number of federal, state and local programs aimed at assisting companies and communities in their desire to grow and prosper, it is often difficult to identify and navigate through these programs.  To ease that process, our Economic Development Committee, in cooperation with the Iowa Department of Economic Development, has begun the development of an interactive webpage that will attempt to catalog and describe these programs (http://www.iowabar.org/Committees/Economic.nsf) We expect it to be completed soon and encourage you to participate in its bulletin board feature. 

Your Economic Development Committee will also sponsor a regular column on economic development in the Bar magazine.  Finally, the Committee will examine programs, take legislative positions it deems are beneficial to the economic development of the State as a whole, and continue to have programs on economic development in connection with other Bar Association programs.

Many of the members of the Bar Association are already deeply involved in this area and serve on local economic development commissions.  We also welcome every lawyer’s input; if there is a program that should be in the material on our website and it is not listed or if there is something we should be doing, we would very much appreciate it if you would let us know.  The committee members listed on the Bar website are committed to our State’s economy and would be happy to hear from you.

(John D. Shors, Chair, ISBA Economic Development Committee)

In response to the subprime lending crisis, Congress recently passed and the President signed into law a new measure that will make it easier for a homeowner to refinance or to sell their home on a short sale.  A short sale is typically an option where a homeowner owes more on a mortgage loan than the home is worth.  If the lender agrees to allow the homeowner to sell on a short sale, the homeowner can sell the home at a loss, and the lender will forgive the remaining debt.

For the full article, download the associated memo.

Dear Clients:

US Citizenship & Immigration Service (USCIS)  has issued a new I-9 form and updated the instructions and employer handbook.  I believe the last update was 1991, even though the list of acceptable documents was changed in 1996.

The form itself is not very different, but the list of acceptable documents has been changed to comply with the law.  The form is available in English and Spanish and either version may be used.

We have already received emails from companies offering to provide employers with this new form for a "substantial discount".  But of course the form is free from the government.  You may find it by going to www.uscis.gov - go to "forms" and they are listed in alpha-numeric order (although in true government fashion "I-9" is at the END of the "I" section after "I-881").  Or you may call 800-870-3676.

Employers will have 30 days from the date USCIS publishes a notice in the Federal Register to transition to the new form, but you might as well start now since the new form is more clear and the list of acceptable documents is corrected.

The Employer Handbook is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf and appears to be much more clear.  However, note that it still shows the current version of the "green card" with the 3/4 view photo rather than the full frontal view "passport-style" photo that is now mandated.

Immigration & Customs Enforcement has a publication with sample immigration documents, the Guide to Selected U.S. Travel and Identity Documents (M-396) that may be ordered in bulk at: Customs and Border Protection,National Distribution Center, P.O. Box 68912, Indianapolis, IN 46268; fax  317  290 3046.  The request should be on form CF 262 --available at the www.ice.gov.  We have ordered it to see if it is more helpful than the USCIS version.

As we study the form, we will let you know if there are items of which you should be aware.

Regards,

Lori Chesser

As you may remember, ICE issued a regulation requiring employers to take certain specific steps to be legally protected when a SS no-match letter was received.  A federal judge granted a temporary restraining order preventing ICE and SS from implementing this regulation until Oct. 1.  Yesterday, another hearing was held on this matter.  The judge decided to extend the injunction for 10 days and expects to issue a ruling within that time regarding whether a permanent injunction should be issued while litigation proceeds on the validity of the regulation.  The judge expressed serious concerns about the regulation in several respects.  We will keep you updated of progress on this litigation.

Note that enforcement of immigration laws governing employment continues and is on the rise.  Employers are strongly cautioned to consider the proposed rule - even though it is not in effect - as a guideline for how ICE would view your actions in the event of a review of your personnel records.  We are also examining the many ways in which employers are affected by the increased enforcement and recent legislation by various states to enforce the federal immigration laws.  More to come . . .

AOS Receipts

The slew of filings in July and August for permanent residence based on employment offers overloaded the CIS (see next item for details).  Because some cases were sent to other service centers for processing, we are experiencing wide ranges of receipt dates.  Despite the CIS website that lists certain dates for which they have completed intake, CIS officials have indicated that these represent the "bulk" of the cases receipted and that dates much earlier than those listed are still being processed.

Because CIS has 90 days in which to issue EADs according to regulation, there is reason to believe that receipts will be issued soon (some were filed as early as July 2 and do not have receipts).  If cases are not processed within 90 days, we expect CIS will issue guidance about how to proceed to obtain work authorization.  Travel documents have no such deadline, however.

Employment-based backlogs

The new fiscal year has begun and the Visa Bulletin (which indicates waiting lines for permanent residence applications) was not as bad as expected.  See  http://travel.state.gov/visa/frvi/bulletin/bulletin_3800.html

However, at a program Friday, a top CIS administrator (Michael Aytes) indicated that the Service received two and a half years worth of employment-based adjustment of status filings in July-August (320,000 I-485s, 40,000 I-140s, and 400,000 applications for EADs and/or Advance Parole).

It is clear that backlogs will continue and probably worsen as the year goes on.  It is critical that Congress allocate more visas (stop counting family members, recoup visas left on the table in years past, or simply authorize more visas) to make the system work.

DOL Backlog Elimination Centers to close soon.

Yesterday DOL announced that the permanent foreign labor certification program's backlog has been eliminated, with nearly 99 percent of cases completed and the remainder awaiting responses from employers. The BECs have begun a transition and shutdown phase and will send remaining cases to their Chicago office.  We are checking our cases to make sure they all are either through the BEC or in process.  If you have concern about your case status, please let us know.

H-2B Cap Reached Sept. 27

Also yesterday, CIS announced that the H-2B cap (for temporary, seasonal non-agricultural workers) had been reached for the first half of Fiscal Year 2008.  This is several weeks earlier than last year, and indicates that the H-2B program must also have more visas to continue as a viable option for employers bringing needed workers to the United States.

Start Planning H-1B Filings Now!

If you plan to file for H-1B for the next fiscal year (Oct. 1, 2008, start date), please plan ahead as much as possible.  Filings may not be submitted until April 1.  We expect the system to become a "lottery" again unless Congress acts to add H-1Bs.

Remember that jobs on college campuses, by organizations affiliated with an institution of higher education, for certain research-related non-profits, and for doctors who have a "Conrad 30" waiver are exempt from this cap.  Transfers are also exempt so long as the person has been "counted" toward the cap (working in a non-exempt position) in the past.

Do you see a "theme" here?

Yes, you are correct - CONTACT CONGRESS.  Although everyone agrees that major immigration reform is dead for a while, Congress could still help in a number of ways by:

- Increasing the number of H-1Bs
- Increasing the number of H-2Bs
- Increasing the number of employment-based permanent residence visas (or counting them differently)

You can quickly and easily contact Congress by using the American Immigration Lawyers Association website:

http://capwiz.com/aila2/home/

Or if you would like to get more involved by setting up a meeting with your Senators and Representative, we would be glad to help.  They can't fix it unless they know its broken.  LET THEM KNOW!!!

Lori Chesser

A hearing will be held October 1 to determine if the injunction against implementing the regulation will remain in place.  Until then, the Social Security Administration ("SSA") is also prevented from mailing the ICE enclosures explaining the regulation with their no-match letters.  We do not know at this time if SSA will still send the letters (which were set to be mailed this week) or will hold them until the situation is more clear.

While this is potentially good news for employers - who were given only 30 days to read and digest this new rule - it does NOT mean that ICE will discontinue enforcement operations.  The rule merely provided instruction about what they considered to be reasonable steps upon receipt of the letters. 

All indications are that enforcement will continue and increase.  Since they have started to find and arrest more unauthorized workers, they also have a ready source of informants who will cooperate to catch employers not following the I-9 rules or knowingly hiring unauthorized workers.

Note also that the anti-discrimination provisions of the law are still in effect. 

Stay tuned!

Lori Chesser

“No-Match” Letter Regulation

For many years, the Social Security Administration has sent “no-match letters” (officially  “Employer Correction Requests”) to employers whose wage reports do not match SSA records in either: name, number or birth date.  The letter specifically stated that the fact of the discrepancy did not mean the employee was not authorized to work and should not be the grounds, in and of itself, to terminate employment.

However, the immigration enforcement consequences of receiving such a letter were less clear.  Immigration & Customs Enforcement (“ICE”) gave no clear guidance to employers as to their obligation under the employment verification system when these letters were received.  Employers also must comply with the anti-discrimination provisions that are part of the same law that requires employers to check authority to work (the Immigration Reform & Control Act of 1986).  Thus, employers were wary of asking for additional or different documents to resolve the discrepancy; as such request could be considered “document discrimination.”

On August 15, 2007, ICE published a final rule to address these concerns.  See 72 Fed. Reg. 45612.  This regulation claims to give employers a “safe harbor” if they comply with the steps outlined in it when a no-match letter is received.  Employers are advised to follow the safe harbor procedures set forth below, but should also realize the limited utility of the rule in that it is very narrowly drafted and does not in any way exempt the employer from liability if it has actual knowledge or constructive knowledge, determined by other facts and circumstances, that it is employing an unauthorized worker.

What the regulation actually does is amend and clarify the definition of “constructive knowledge” for the purposes of determining whether an employer “knowingly” employed an unauthorized worker.  Often it is very difficult for ICE to prove “actual knowledge”, e.g. obtain a tape recording of a conversation admitting as much or some other incriminating evidence.

Therefore, the regulations also allow ICE to levy fines or bring criminal charges based on “constructive knowledge”.  This is defined as “knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.”  See 8 C.F.R. §274a.1(l).

The regulations provide examples of when an employer would have constructive knowledge.  One of these examples is that the employer “[f]ails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized.”  See 8 C.F.R. §274a.1(l)(1)(iii).  An example of such information was added to include:  “Written notice to the employer from the Social Security Administration reporting earnings on a Form W-2 that employees’ name and corresponding social security account numbers fail to match Social Security Administration records.”  See subsection (B).

The Safe Harbor Procedures

Although identifying the receipt of a no-match letter as proof of constructive knowledge, the rule then states that if the employer takes “reasonable steps” after receiving such a letter, the receipt of the letter alone will no longer be considered constructive knowledge.  This is the “safe harbor” provision.

To take “reasonable steps,” the employer must do the following:

 (A) Check its records to determine if the discrepancy is the result of a clerical error on the employer’s part.  If so, the employer must within 30 days of receipt of the letter (1) inform SSA of the corrected information, (2) verify with SSA that the corrected information matches its records, and (3) make a record of the manner, date and time of such verification, and store this record with the employee’s I-9 form (since SSA will not make such a record).  The employer may update the existing I-9 form or complete a new form, but should not perform a new I-9 verification.

 (B) If the discrepancy does not appear to be a clerical error, the employer must notify the employee to correct his/her records with SSA.  If the employee informs the employer that its records are incorrect, then the employer must perform the steps listed in (A) above.

If the employer’s information is correct according to the employee, then the employer must (1) notify the employee of the date the letter was received and that he/she must resolve the discrepancy with SSA within 90 days of that date, and (2) check SSA records by the 90th day to see if the name and account number now match. 

If the discrepancy has not been corrected within 90 days of the date of receipt of the letter, the employer must re-verify the employee as follows:

  (a) The employer must complete a new I-9 form for the employee within 93 days of receipt of the letter (i.e., the employee has 90 days to fix the problem and if not fixed, the employer must re-verify within 3 days).

  (b) The employer may not accept a social security card or any other document that contains the disputed social security number, or a receipt for a replacement document.

  (c) The employee must present a document containing a photograph to satisfy the I-9 verification requirements (i.e., to establish identity or to establish both identity and work authorization).

  (d)  The employer must retain the I-9 in accordance with the usual retention rules.  Note that when completing the I-9, the date employment commenced should be indicated as the date the employee first began working for the employer, and this would be the date to key the retention requirement (i.e., 3 years from date of commencement of employment or one year from date of termination, whichever is longer).

Other Examples of Constructive Knowledge

In addition to the receipt of a no-match letter, the regulation also points to receipt of written notice from Department of Homeland Security that the document used for I-9 verification belongs to someone else or has not been assigned to a person as grounds for a finding of constructive knowledge.  The steps the employer is to take in this situation are the same as outlined above, but with reference to DHS rather than SSA.

The final example of constructive knowledge is when the employee requests employer sponsorship for labor certification (the “PERM” process) or an employment-based visa application.  We assume this would be constructive knowledge only if the employee is not currently in a valid temporary work-authorized status, although the regulation is silent on this point.  In this situation, no remedial steps are possible.

Implementation & Practical Tips

The new rules will become effective September 14, 2007.  We understand that SSA is expecting to start sending no-match letters referencing the new rule during the first week of September.  Because the rule does not addresss retroactivity, we advise employers to comply with the new procedure for letters received prior to September 14 if they have not been resolved by that date.

Note that this rule applies only to receipt of the no-match letter or written notice from DHS.  It does not apply to discrepancies discovered from use of Basic Pilot or other electronic verification systems.

Because there will be no official “receipt date” for the letter (it will be dated the day it is generated), employers should be sure to date-stamp the letter when it reaches the worksite.  The preamble specifically rejected beginning the count from the date the appropriate employer representative receives the letter.  Also employers should save the envelope to show postmark.

We also suggest adopting a standard procedure for handling no-match letters, including preparing form letters now so that precious time is not lost in complying with the safe harbor provisions.  We have provided sample letters attached to this update.

Note that we have already heard of ICE contacting employers who have filed labor certifications (PERMs) for employees apparently not authorized to work.  The Department of Labor is authorized to contact ICE in this situation and is already doing so.

Enforcement Consequences

The preamble to the rule is careful to state that nothing in the rule requires termination of employment.  However, if the employer either fails to follow the safe harbor procedure, or fails to terminate the employment if the procedure does not end in resolution of the discrepancy or a successful new verification, the employer risks enforcement consequences if the employee turns out to not be authorized to work.  Consequences include fines and possible criminal penalties.  Note that ICE and U.S. attorneys are more frequently charging employers with criminal violations such as harboring as fines are now considered to be ineffective.  See ICE’s website, www.ice.gov and the discussion below regarding stepped-up enforcement announced by ICE.

The rule also states that if the employer follows the safe harbor procedure for all employees, then these actions will not be considered discriminatory.  The rules does not allow employers to request more or different documents than required for the I-9 (except as specifically stated), or to refuse to accept documents that appear to be genuine on their face.  Note, however, that ICE is not the agency enforcing the anti-discrimination provisions of the employment verification law.  This duty falls to the Office of Special Counsel, which still may investigate charges of discrimination despite ICE’s statements in its rule.

Following the safe harbor provisions is not the only way that an employer could take reasonable steps to ascertain whether an employee is authorized to work.  ICE will take into consideration all of the facts and circumstances surrounding the situation to determine employer liability.  However, in most cases it will be advisable to follow the steps indicated in the rule.

Resources

Employers wishing to verify social security numbers may access SSA’s verification system at http://www.ssa.gov/employer/ssnv.htm

U.S. Citizenship & Immigration Service maintains a database for verification of documents (the Systematic Alien Verification for Entitlements or SAVE program) at https://www.vis-dhs.com/EmployerRegistration

ICE will work with employers to audit your workforce and then sign you up for the Basic Pilot Program to check new employees (the IMAGE program).  Information is available at http://www.ice.gov/partners/opaimage/index/htm

The Basic Pilot Program may be accessed at http://uscis.gov/graphics/services/SAVE.htm

ICE has launched an interactive “Safe Harbor Center” at http://faq.ice.gov/cgi-bin/ice_faq.cfg/php/enduser/std_alp.php?p_sid=6IbfqOIi

We caution all employers to carefully consider whether to sign up for electronic verification programs before starting them.  Once you are signed up, de-registering could be problematic. 

Increased ICE Worksite Enforcement

On August 9, 2007, the Department of Homeland Security issued a Fact Sheet entitled "Worksite Enforcement" which highlights recent ICE enforcement efforts targeted at businesses that employ undocumented immigrants. (Copy attached)

Julie Myers, Assistant Secretary for Homeland Security at ICE, stated that these “worksite enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish” and vowed that ICE “will continue to bring all of our authorities to bear in this fight using criminal charges, asset seizures, administrative arrests and deportations.”

The Fact Sheet highlights more than a dozen businesses targeted in workforce enforcement operations, ranging from temporary employment agencies, to textile, construction and food processing plants.  The operations varied, ranging from 12 contract workers at the Camp Joseph T. Robinson Army National Guard Base in North Little Rock, Arkansas, being placed in removal proceedings, to the arrest of 160 individuals charged with being unlawfully present in the U.S. at a Fresh Del Monte Produce plant in Portland, Oregon.  In the Del Monte case, grand jury indictments were also returned against 10 former workers charged with possession of fraudulent immigration documents.

Additional information on ICE worksite enforcement is available at http://www.ice.gov/pi/news/factsheets/worksite.htm

A full list of filing fees may be found at http://www.uscis.gov/files/nativedocuments/FinalUSCISFeeSchedule052907.pdf

Note that many of the increases are substantial.  CIS explains that this is necessary because Congress has mandated that adjudications be self-supporting through fees for service.

We will endeavor to file all eligible cases before the change goes into effect assuming that all documents have been received and forms signed.  However, for cases that cannot be filed, we will need the additional amounts for filing fees before we can file them with the increased fees.

What a way to start our summer!

*Senate deal brokered, but unworkable
*DOL rule on labor certifications just published
*Priority dates move forward

SENATE DEAL BROKERED, BUT UNWORKABLE
Today the Senate negotiators came out with their "deal" on immigration reform. The following summary from American Immigration Lawyers Association gives more details about why this deal is unfortunately unacceptable. Note that it would not increase the number of employment-based visas available to needed workers. It would also get rid of many family-based categories. The temporary worker system would be subject to abuse and would not solve our workforce needs. Please go to www.aila.org and hit the "Contact Congress" button on the left side of the page to let your Senators know that this "compromise" is not a solution. WE EXPECT A VOTE MONDAY ON THE BILL! PLEASE LET THEM KNOW YOUR VIEWS!

From AILA:
"On 5/17/07, a group of Democratic and Republican senators announced that their backroom negotiations had produced a "grand bargain." The deal, as described, raises at least four major concerns. As a trade-off for a strong legalization program (including AgJOBS - more agricultural employment - and the DREAM Act - legalization of certain students who entered with their parents and have completed high school) and significant reductions in the current family backlogs, the negotiators propose to:

(1) Eliminate four of the current family preference categories (1 - sons & daughters of US citizens, 2B - unmarried sons & daughters of permanent residents , 3 - married sons & daughters of US citizens, and 4 - brothers and sisters of US citizens);
(2) Overhaul our current employment-based immigration system and replace it with a "merit-based" point system;
(3) Maintain annual green card numbers at their current levels guaranteeing continued systemic dysfunction from burgeoning backlogs; and
(4) Preclude a meaningful path to permanent residence for new temporary workers.
This radical shift from an immigration system grounded in familial and employment relationships to one disconnected from direct ties to the U.S. amounts to large-scale social experimentation. Combined with the creation of a large, fluctuating pool of "guest workers" who cannot lay down roots in the U.S., this point system raises the specter of a new generation of immigrants lacking the infrastructure and opportunity to effectively assimilate into this country. A practical solution for the undocumented population is an enormously important step in the right direction. But the cost of fixing our current problems cannot be the creation of bigger problems in the future.
 
Please contact your Senators now and urge them to oppose any deal that:
- Eviscerates family-based immigration;
- Includes a radical new, untested "merit" system;
- Fails to expand the pool of green cards critical to high-skilled and low-skilled industries throughout our economy; and
- Prevents temporary workers from earning and pursuing permanent residence."
 
 
DOL RULE ON LABOR CERTIFICATIONS JUST PUBLISHED
As expected, Dept. of Labor published a rule that makes a number of changes to the labor certification process for permanent residence based on a job offer. The rule is very long and just came out yesterday, so we are still digesting it ourselves. It is not effective until July 16.
One of the big changes is that labor certifications will be valid for only 180 days. Those already approved by the effective date of July 16 will be good for 180 days beyond July 16. The I-140 must be filed while the labor certification is valid.
Again, we are reading this rule carefully and will provide much more detailed information soon. However, those of you with approved labor certifications (cases under the old system or PERM), should get the I-140s filed as soon as possible. Let us know if we can assist you.

PRIORITY DATES MOVE FORWARD
The employment-based waiting lines moved ahead significantly for June. We have already contacted all the clients we are aware of who will be able to file their cases in June. We expect this may be a temporary window of opportunity, so please let us know if you have questions about your case or need assistance, or if you have not heard from us and believe you are eligible to file your case.

The Visa Bulletin for June may be found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

In this information you will find:

*Calls Needed To Senators To Keep Rational Immigration Reform On Track
*H-1B Caps All Reached In Record Time
*DOL Closer To Changing Validity Of Perm And Other Rules
*USCIS May Change Length Of Time To Respond To RFEs
*US-VISIT No Longer Required At Exit Points
*DOS Now Requiring 10-Prints
*USCIS Proposes To Change Religious Work Category
*Change In O And P Visa Application Periods

CALLS NEEDED TO SENATORS TODAY TO KEEP RATIONAL IMMIGRATION REFORM ON TRACK

Your urgent action has never been needed more than now, when the debate and negotiations on comprehensive immigration reform legislation are nearing a "make or break" point. Contrary to what you may be reading in the press, the negotiations between a White House-led group of Republican senators, and a Kennedy-led group of Democratic senators, have NOT yielded any substantive agreement. In fact, the negotiations have exposed a very troubling dynamic - the Republican effort is being controlled by Senator Kyl (R-AZ), who is insisting on:

-Zero increase in worldwide ceiling on "green cards" in future years (BACKLOGS FOREVER);

-Complete elimination of all family preference categories except 2A (spouses and minor children of LPRs) in exchange for a flawed legalization program;

-Complete elimination of current employment-based categories, to be replaced by new "merit/point" system;

-No path to permanent residence for any new essential nonimmigrant workers;

-Incomplete reduction of family backlogs, leaving nearly a million family members already in line without any relief.

This current "offer" on the table is a program that would decimate family and employment based immigration for the coming 8 years, create a new bracero program, impose daunting impediments to legalization for the 12 million undocumented, and deny basic due process to millions of legal immigrants already in the country. Any "deal" on these terms is totally unacceptable.

For their part, the Democrats have been flexible and willing to negotiate. They have accepted a less-than-ideal legalization program, but demanded that it be workable. They have been willing to discuss new limits on family immigration provided that family members be given priority in any new merit-based or "point" system being proposed by the Republicans. And they have insisted that due process not be further eviscerated.

Senator Reid (D-NV) has committed two weeks of Senate floor debate to CIR starting Monday, May 14, 2007. If there is no "negotiated" bill to introduce, Senator Reid has stated that he will introduce last year's Senate bill, S. 2611, as a starting point for debate. Republicans are threatening to block a "motion to proceed," thereby preventing any debate or any CIR bill from moving to the Senate floor for consideration.

What can you do? Call your Senators NOW and urge them to start the public debate, and to support a CIR bill that:

-respects family values and keeps families united;

-provides a path to eventual citizenship for the undocumented and for new essential workers; and

-preserves and protects due process.

Tell your Senators that you are watching and that you won't stand for anything less than reasonable, workable, comprehensive immigration reform!

Find your senators' phone numbers and join AILA's rapid response advocacy campaign by programming their numbers into your cell phone at: http://capwiz.com/aila2/home/10to1 or www.aila.org - type in your zip code and hit the Contact Congress button or call the Capitol Switchboard  202-224-3121 and ask for your Senators by name.  You can also all Senators McCain, Specter, Martinez and Graham, who are negotiating with Kyl on this bill.

H-1B CAPS ALL REACHED IN RECORD TIME

As you probably know, the H-1B regular cap was reached the first day of submission (April 1).  The U.S. master's cap was reach May 4.  As of tomorrow (May 11), all H-1B cases are to be receipted.  It will take a few days for us to receive the actual documentation.  If your case is not receipted, it will be returned and the fee refunded.

You will need to find a way to maintain status if your case is not accepted for processing.  Please let us know if we can assist you.

Employers and others who are adversely affected by this incredible situation should contact Congress now!  Here's how:

1. Go to the Contact Congress site at:
http://capwiz.com/aila2/utr/1/BPXNGZPMSM/CNVPGZPNNX/1146850296=9589591 and send a customized letter/email.

Or call the Capitol Switchboard and ask for your members by name 202-224-3121.  Or fax their offices with a letter.  If you need to find contact numbers, go to www.aila.org, type in your zip code and hit the "Contact Congress" button.

2. Share your stories!

The American Immigration Lawyers Association  is collecting examples of how the inability to hire H-1B workers
and the delays in getting EB green cards are adversely affecting companies, hospitals, universities, and other organizations. If you have any such examples, please email them to me and I will forward them.

3. Add your name to the sign-on to the letter!
 
Go to:
http://capwiz.com/aila2/utr/1/BPXNGZPMSM/EOPLGZPNNY/1146850296. The sign-on letter is available at:
http://capwiz.com/aila2/utr/1/BPXNGZPMSM/GGGIGZPNNZ/1146850296.

This should take about 60 seconds - it is worth it.  They have to hear from you!

4.  If you have Congressional contacts, set up a meeting on this issue (or let me know that you want me to do so).  Talking points for this kind of outreach may be found at  http://www.aila.org/content/default.aspx?docid=18797.

DOL CLOSER TO CHANGING VALIDITY OF PERM AND OTHER RULES

The Office of Management and Budget (OMB) concludes review of Department of Labor's proposal to bar alien substitution in labor certifications, bar alien payment of employer attorney fees, and limit labor certifications validity. Final rule publication is expected soon.

We will keep you updated on the final rule when it comes out.

USCIS MAY CHANGE LENGTH OF TIME TO RESPOND TO RFEs

USCIS recently published a rule allowing "flexibility" in setting the length of time in which applicants must respond to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). The rule is effective June 18, 2007.  The usual response time is 87 days.  Now examiners may allow less time to respond (or more, but we'll see what happens!).

US-VISIT NO LONGER REQUIRED AT EXIT POINTS

The Department of Homeland Security announced completion of the three-year pilot program that required international visitors to biometrically check out at select airports and seaports. Effective 5/6/07, international visitors will no longer be required to use the US-VISIT exit kiosks when they leave the United States.

DOS NOW REQUIRING 10-PRINTS

The Department of State announced that it will now be requiring "ten-prints" of visa applicants at the U.S. consulates abroad:

The Biometric Visa Program works closely with the US-VISIT Program of the Department of Homeland Security (DHS). Both programs currently require aliens to submit two fingerscans as part of their respective application procedures. In consultation with DHS and the Department of Justice, the Department is instituting the ten fingerscan standard to improve their ability to detect and thwart persons ineligible for visas by raising the accuracy rate in matching fingerscans.

Visa applicants subject to the Biometric Visa Program will be required to provide ten fingerscans with their first visa application following the transition.

The Department plans to begin deployment of the ten fingerscan system to all visa issuing consular posts abroad beginning in April 2007, with completion scheduled for the end of 2007.

USCIS PROPOSES TO CHANGE RELIGIOUS WORK CATEGORY

USCIS published a proposed rule to amend USCIS regulations on special immigrant and nonimmigrant religious worker visa classifications. We are analyzing these changes and suggest if you have specific interest in this rule, you let us know so we can keep you informed directly (if we are not already doing a religious worker visa for you).

CHANGE IN O AND P VISA APPLICATION PERIODS

USCIS published a final rule that allows  petitioners to file for O and P visas up to one year in advance. The rule is effective May 16, 2007.