Vol. XXXV A MONTHLY UPDATE ON IMMIGRATION October 2009In this Issue: Recent Immigration Law News & Policy Updates
CORPORATE AND BUSINESS IMMIGRATION LAW NEWS AND POLICY UPDATESUSCIS Ombudsman Issues Recommendation That USCIS Temporarily Accept H-1B Petitions With "Filed" LCAs While DOL iCERT Glitches Remain An Ongoing ProblemOn October 23, the USCIS Ombudsman released a recommendation that USCIS temporarily accept H-1B petitions with evidence of a "filed" LCA in place of the current requirement of a "certified" LCA. (the USCIS Ombudsman, established by the Homeland Security Act of 2002, provides independent analysis of problems encountered by individuals and employers interacting with USCIS, and proposes changes to mitigate those problems). In support of the recommendation, the Ombudsman cited multiple complaints concerning H-1B cases with incorrectly denied LCAs. The Ombudsman wrote to USCIS, "LCA processing delays and errors at DOL, when coupled with USCIS' current H-1B petition initial filing requirements, are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Due to the number of improper denials of LCAs, untimely H-1B petition filings have lead to problems, including: (1) the potential loss of an employee's legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status. Since USCIS clearly has the authority to mitigate this disparate impact upon petitioning individuals (and their employers), the Ombudsman recommended that USCIS implement the following practices on a temporary basis pending DOL's correction of the widespread iCERT system glitches:
While the Immigration and Nationality Act ("INA") § 212(n)(1), provides that USCIS may not approve an H-1B petition without a supporting certified LCA, the INA does not prohibit the acceptance of a filed petition without a certified LCA. While this is only a recommendation to USCIS, only time will tell whether such a temporary "fix" is implemented. We will, of course, continue to keep you advised on USCIS' response. DHS Rescinds Safe Harbor Rule For No-Match LettersThe Department of Homeland Security ("DHS") has formally withdrawn its Social Security "no-match" regulation, promulgated back in 2007. The no-match regulation set forth a "safe harbor" for employers who receive letters from the Social Security Administration ("SSA") stating that an employee's Social Security Number does not match the agency's records. The safe harbor rule required employers to take certain steps to resolve the discrepancy within a certain period of time or face liability. Shortly after being issued in 2007, the no-match regulation was challenged in court, subject to an injunction and ultimately never implemented. As of October 7, 2009, the rule was formally rescinded. In the summary of the final rule, DHS stated that it will "focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers ("IMAGE"), and other programs." DHS also noted that it and its predecessor agencies have provided guidance on the immigration implications and responding to no-match letters. "DHS, in considering all of its options, does not believe that the addition of a 'safe-harbor' to that guidance is as effective as other tools to assist in compliance with the employment restrictions of the Immigration and Nationality Act." The final rule will take effect 30 days from October 7, 2009. Although the no-match regulation has been rescinded, employers who receive no-match letters, or credible notice from any other agency that there may be an issue with an employee's SSN, should continue to take the appropriate steps to resolve such discrepancy and correct their records. In addition, it is never too late to act to resolve SSN discrepancies. If you have received no-match letters in the past but have not responded, you should do so now. Failure to make a good faith attempt to resolve these discrepancies could subject a company to potential civil and/or criminal liability if workers ultimately turn out to be undocumented. Congress Puts An End To The "Widow Penalty"The death of a spouse will no longer result in automatic deportation of widows and widowers and their children, following a historic vote in the Senate earlier this month. Ending an antiquated, rigid policy traced back more than seventy years, Congress has at last abolished the "widow penalty." For hundreds of unlucky immigrants, the death of a wife or husband has been quickly followed by an order to leave the country. It's called the "widow penalty," a tragic quirk in federal law that unfairly punishes recently married immigrants whose U.S. citizen spouses pass away before their permanent residence paperwork is processed. In the past, according to USCIS' strict interpretation of the law, if a U.S. citizen passed away before the Service acted on his or her petition seeking permanent residence for a spouse - and if the marriage was less than 2 years old - the surviving spouse, as a matter of law, was no longer entitled to the relief sought from the Service, with little or no exception. Because the Obama Administration chose not to abolish the widow penalty, Congress stepped up and did it for them. Surviving spouses and their families owe a debt of gratitude to Congressman Jim McGovern (D-MA), and Senators Bill Nelson (D-FL), Orrin Hatch (R-UT), and Robert Menendez (D-NJ) for their leadership on this issue. CBP Issues Travel ReminderU.S. Customs and Border Protection reminds travelers planning trips across the U.S./Canadian border to have their approved travel documents ready. The Western Hemisphere Travel Initiative ("WHTI"), implemented on June 1, 2009, requires U.S. and Canadian citizens, age 16 and older to present a valid, acceptable approved travel document that denotes both identity and citizenship when crossing the border by land or sea. WHTI compliant documents include a passport, U.S. passport card, enhanced driver's licenses (EDLs) -- now produced by the states of New York, Michigan, Vermont and Washington and the Provinces of Quebec, Ontario, Manitoba, and British Columbia; or a Trusted Traveler Program card (NEXUS, SENTRI and FAST). For more information, visit the WHTI Web site at www.getyouhome.gov. CBP also reminds U.S. lawful permanent residents that the I-551 form (green card) is acceptable for land and sea travel into the U.S. Here are a few other travel tips, courtesy of CBP: Tip #1 - Travelers should familiarize themselves with the "Know Before You Go" section of the CBP Web site to avoid fines and penalties associated with the importation of prohibited items. "Know Before You Go" brochures are also available at border ports of entry. Tip #2 - Travelers should prepare for the inspection process before arriving at the inspection booth. Individuals should have their crossing documents available for the inspection and they should be prepared to declare all items acquired abroad. In addition, individuals should end cellular phone conversations before arriving at the inspection booth. Tip #3 - Members of the traveling public should consult the CBP Web site to monitor border wait times for various ports of entry including Blaine and Sumas, Wash., Sweetgrass, Mont.,and Pembina, N.D. Information is updated hourly and is useful in planning trips and identifying periods of light use/short waits. Tip #4 - During periods of heavy travel, border crossers may wish to consider alternative, less heavily traveled entry routes. Tip #5 - Travelers should plan to build extra time into their trips in the event they cross during periods of exceptionally heavy traffic (i.e. the upcoming Thanksgiving holiday and adjacent weekends). Tip #6 - Know the difference between goods for personal use versus commercial use. Tip #7 -Do not attempt to bring fruits, meats, dairy/poultry products and firewood into the United States from Canada without first checking whether they are permitted. Senate Approves Extension For The EB-5 Visa, Conrad 30 and Non-Minister Religious ProgramsOn 10/13/09, the House and Senate Appropriations Committees issued a conference report on the FY 2010 Homeland Security Appropriations bill (H.R. 2892/S.1298). The conference report provides a three-year extension for the non-minister religious worker program (section 568), the "Conrad 30" program (section 568), and the EB-5 visa program (section 548). These programs will be extended through September 30, 2012. The report provides $137 million funding for the E-Verify program and extends the program for an additional three years (section 547). The conferees also direct the U.S. Government Accountability Office to conduct two studies of the E-Verify program: one of the tentative non-confirmation rates and the other of the effects of the program on small business entities. The conference report also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568) as further described in the "Congress Puts An End To The Widow Penalty" news story above. Finally, the report rejected several immigration-related amendments included in the Senate version of the bill that would have permanently reauthorized the E-Verify and EB-5 programs; required the construction of additional border fencing; and authorized employers to verify the employment eligibility of current employees using E-Verify. On October 20, 2009, the Senate approved the conference report on the FY2010 Homeland Security Appropriations bill (H.R. 2892/S.1298) by a 79-19 vote. The bill will now head back to the House of Representatives and the Senate for a final vote on passage, which should likely occur in the coming days. Portions of this Newsletter have been The material contained in this newsletter is for informational purposes and should not be considered legal advice. |
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