News from the Alliance of Business Immigration Lawyers Vol. 7, No. 1B • January 15, 2011

Headlines:

1. USCIS Revises I-9 Manual for Employers – The handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in TPS.

2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon – USCIS has made changes to its E-Verify Web interface, and has launched a newsletter on E-Verify developments.

3. Visa Numbers Move Slowly – Priority dates in several employment-based categories moved ahead, although not by much overall.

4. USCIS Releases H-1B, H-2B Cap Counts – ABIL recommends filing petitions now.

5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia – Of the 53 countries on the list, 15 were designated for the first time this year.

6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory – The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers – Any I-485 where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition.

8. New Publications and Items of Interest – New Publications and Items of Interest

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. USCIS Revises I-9 Manual for Employers

U.S. Citizenship and Immigration Services (USCIS) has revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274). Revised as of January 5, 2011, the handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in temporary protected status (TPS).

The following is a summary of key changes in the revised handbook:

Employees With TPS

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security (DHS) may extend a country’s TPS designation and issue a Federal Register notice to automatically extend expiring employment authorization documents (EADs) for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an EAD that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary’s expired EAD is valid as a List A document.

The handbook now provides guidance on how to identify a TPS EAD, how to determine whether the DHS has issued an automatic extension of expiring EADs, and how to explain that the TPS status was extended on the Form I-9 (Employment Eligibility Verification).

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status (“The Cap Gap”)

The handbook provides a detailed explanation on how to complete the I-9 for those individuals in J-1 exchange visitor status and F-1 and M-1 student status. Additionally, the handbook explains how to complete the I-9 for F-1 students who are changing status to H-1B and are eligible for a “cap-gap” extension of status and employment authorization. The handbook confirms that the student’s employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student’s H-1B status will begin on October 1. Additionally, the handbook advises that an employer must re-verify a student’s Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status). The I-20 must show that the cap-gap extension was endorsed by the student’s designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability)

The handbook now states that an employee in valid H-1B status who changes (ports) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior version of the handbook required the porting H-1B employee to obtain a Form I-797 (Receipt Notice) from USCIS before beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official I-797.

The new version of the handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/I-94A (Arrival-Departure Record) issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write “AC21” on the I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the I-9, and attach documentation as specified in the handbook.

Extensions of Status

The handbook explains that an employee with a petition for extension of status timely filed before the employee’s work authorization expires is eligible for continued work authorization for up to 240 days beyond the expiration date of the authorization as long as the extension remains pending. The handbook provides a detailed explanation of how to complete the I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write “240-Day Ext.” and record the date the employer submitted the Form I-129 (Petition for a Nonimmigrant Worker) to USCIS in the margin of the I-9 next to Section 2.

Additionally, the handbook expands upon what documentation should be added to the I-9. Previously, the employer was advised to attach only the I-797. Now, the handbook adds that the employer should keep the following documents with the I-9 in this situation:

A copy of the new I-129 that was filed for the extension;
Proof of payment for the filing of the new I-129; and
Evidence that the new I-129 was mailed to USCIS.
After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and kept with the I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number, and expiration date listed. The handbook adds that the employer must give the employee the I-94A, which is evidence of the employee’s employment authorized nonimmigrant status.

Interruptions in Employment

The handbook now provides guidance to employers who are uncertain about whether a new I-9 is required after an employee has experienced a brief interruption in employment. The handbook provides examples of situations which include “continuing employment,” such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, or the same employer at another location. An employer is not required to complete a new I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems

The handbook offers expanded guidance to employers who use paper, electronic systems, or a combination of paper and electronic systems to keep I-9 forms. Employers must follow certain guidelines, outlined in the handbook, should they choose to keep their I-9s in an electronic generation or storage system. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permit the identification and retrieval of documents and records maintained. Employers who are currently using, or contemplating the future use of, an electronic retention system should review the information outlined in the handbook and consult their Alliance of Business Immigration Lawyers (ABIL) attorney for guidance.

E-Verify and Federal Contractors

The previous version of the handbook offered guidance to employers regarding participation in E-Verify and the corresponding I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the handbook provides additional guidance to federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing I-9 forms, a new I-9 must be completed.

Questions and Answers Section

The handbook has expanded its Questions and Answers (Q&A) section to provide clarification to employers in a variety of situations related to the I-9, including the following helpful information:

A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at http://www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for I-9 purposes.
An employer may accept a Social Security Card that has not been signed as a valid List C document.
An employee may present an unexpired I-94 card notated with work-authorized status in two situations: (1) as a List A document along with his or her foreign passport; or (2) as a List C document demonstrating work authorization from USCIS.
Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the I-9 detailing the employee’s reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide.

The revised handbook for employers is available at http://www.uscis.gov/files/form/m-274.pdf.

For more information on the updated employer handbook or on potential changes to your I-9 policies and procedures, contact your ABIL attorney.

2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon

U.S. Citizenship and Immigration Services (USCIS) has made the following changes to its E-Verify Web interface:

added U.S. Passport Photo Matching, a new feature that uses data and photos from the U.S. passport system to assist in the verification process
changed the title “Designated Agent” to “E-Verify Employer Agent”
updated the following USCIS publications:
E-Verify User Manual for Employers
E-Verify User Manual for Federal Contractors
E-Verify User Manual for E-Verify Employer Agent
E-Verify Quick Reference Guide for Employers
E-verify Quick Reference Guide for E-Verify Employer Agent

USCIS has also launched E-Verify Connection, a newsletter on E-Verify developments. The first issue is available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf. You may join the newsletter distribution list by e-mailing “subscribe” to [email protected].

For more information on these developments, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=04db32802cbc8210VgnVCM100000082ca60aRCRD&vgnextchannel=04db32802cbc8210VgnVCM100000082ca60aRCRD.

In related news, Florida recently began requiring certain state agencies and contractors to use E-Verify, while Rhode Island has rescinded its E-Verify requirement for state contractors.

Also, Rep. Elton Gallegly (R-Cal.) will chair the U.S. House of Representatives’ Subcommittee on Immigration Policy and Enforcement. Observers had expected Rep. Steve King (R-Iowa) to be appointed instead, but he is now vice chairman. Rep. Gallegly is considered by many observers to be hawkish on immigration but less controversial than Rep. King. Among other things, Rep. Gallegly was instrumental in creating the pilot program that led to E-Verify. He is expected to hold hearings on E-Verify soon.

The American Immigration Lawyers Association has published a fact sheet on Rep. Gallegly, available at http://www.aila.org/content/default.aspx?docid=34122.

3. Visa Numbers Move Slowly

The Department of State has released the Visa Bulletin for February 2011. Priority dates in several employment-based (EB) categories moved ahead, although not by much overall. For example, the third preference “Other Workers” worldwide category advanced from April 22, 2003, to May 1, 2003. The Mexico third preference category advanced from April 15, 2003, to July 8, 2003. Many categories remain Current.

It had been initially reported that the India EB-2 category was Current, but the Visa Office corrected that erroneous information. The India second preference priority date remains at May 8, 2006.

The February 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5228.html.

4. USCIS Releases H-1B, H-2B Cap Counts

As of January 7, 2011, U.S. Citizenship and Immigration Services (USCIS) reported that 58,700 cap-subject H-1B petitions were filed, of a maximum of 65,000 available under the fiscal year (FY) 2011 cap. USCIS began accepting H-1B petitions on April 1, 2010, that are subject to the FY 2011 cap.

USCIS noted that it has received over 20,000 petitions filed on behalf of individuals who have earned a master’s degree or higher from a U.S. institution of higher education. USCIS continues to accept these petitions and they will be counted against the regular H-1B cap until the regular cap is reached.

For the H-2B temporary nonagricultural category, the cap is 66,000 per fiscal year, with 33,000 allocated in the first half of the year and 33,000 in the second half. As of January 7, 2011, USCIS had approved 33,243 beneficiaries (with 2,360 pending) for the first half of FY 2011, and had approved 1,452 so far for the second half (with 677 pending). USCIS noted that the estimated number of beneficiaries needed to be included on petitions filed with USCIS to reach the H-2B cap will always be higher than the actual cap, to allow for withdrawals, denials, and revocations.

The Alliance of Business Immigration Lawyers (ABIL) recommends filing H-1B and H-2B petitions now. For advice or help in filing a petition, contact your local ABIL attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

The H-1B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. The H-2B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=356b6c521eb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD.

5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has identified 53 countries whose nationals will be eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Of those countries, 15 were designated for the first time this year.

With limited exceptions, USCIS approves petitions only for nationals of countries designated to participate in the H-2A and H-2B programs. A new list of eligible countries is expected to be published in a Federal Register notice on January 18, 2011; the designations are valid for one year from the date of publication.

Effective January 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.

Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

DHS and DOS have determined that Indonesia does not warrant a renewed designation as a participating country in the H-2A and H-2B programs for 2011.

The new list does not affect the status of individuals who currently hold valid H-2A or H-2B status. A national from a country that is not on the list may be the beneficiary of an approved H-2A and H-2B petition if the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that it is in the U.S. interest.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=88404e9c7c08d210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory

U.S. Citizenship and Immigration Services (USCIS) has released a report of the agency’s total pending inventory of applications for employment-based green cards (Form I-485, Application to Register Permanent Residence or Adjust Status). USCIS also has posted five other reports by country of chargeability (China, India, Mexico, Philippines, and All Other Chargeability).

The “Pending Employment-Based Form I-485 Report” shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

Because of historically higher demand for visas from China, India, Mexico, and the Philippines, each of those countries has its own separate report.

The January 2011 report is available at http://www.uscis.gov/USCIS/statistics/Employment%20Based%20I-485%20Pending%20Inventory%20as%20of%20January%2005,%202011.pdf. For more information, see the USCIS Q&A at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=ae853ad15c673210VgnVCM100000082ca60aRCRD&vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCRD.

7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers

In January 2011, U.S. Citizenship and Immigration Services released a policy memorandum dated November 9, 2010, which states that any Form I-485 (Application to Register Permanent Residence or Adjust Status) where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition. USCIS service centers and offices (including the lockboxes) must reject any Forms I-485, I-765 (Application for Employment Authorization), or I-131 (Application for Travel Document) filed concurrently with or based on a pending I-360 petition seeking the special immigrant religious worker classification.

The new guidance was issued pursuant to a decision by the U.S. Court of Appeals for the Ninth Circuit (Ruiz-Diaz v. United States, No. 09-35734 (9th Cir. Aug. 20, 2010)). The memo notes that any I-485 based on an I-360 religious worker petition filed before November 9, 2010, will be accepted and adjudicated pursuant to the guidelines established in an earlier memorandum issued on August 5, 2009 (Memorandum HQDOMO AD09-45, “Clarifying Guidance on the Implementation of the District Court’s Order in Ruiz-Diaz v. United States, No C07-1881RSL (W.D. Wash. June 11, 2009)”).

The new memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Ruiz-Diaz_Policy_Memo.pdf.

8. New Publications and Items of Interest

GAO report on H-1B program. The U.S. Government Accountability Office (GAO) has published “H-1B Visa Program: Reforms Are Needed To Minimize the Risks and Costs of Current Program.” The GAO found that demand for new H-1B workers is largely driven by a small number of employers. From 2000 to 2009, over 14 percent of all initial petitions were submitted by cap-exempt employers, the GAO said, and only a few employers (fewer than 1 percent) garnered over one-quarter of all H-1B approvals.

Most interviewed companies said the H-1B cap and program created costs but were not factors in their decisions to move research and development overseas. The 34 H-1B employers GAO interviewed reported that the cap created some additional costs, although its impact depended on the size and maturity of the company. For example, in years when visas were denied by the cap, most large firms reported finding other (sometimes more costly) ways to hire their preferred job candidates. On the other hand, small firms were more likely to fill their positions with different candidates, which they said resulted in delays and occasional economic losses, particularly for firms in rapidly changing technology fields.

Limitations in agency data and systems hinder tracking the cap and H-1B workers over time. The total number of H-1B workers in the U.S. at any one time, and information about the length of their stay, is unknown, the GAO said. The agency concluded that the H-1B program, as currently structured, may not be used to its full potential and may be detrimental in some cases. The report offers several matters for congressional consideration, including that Congress re-examine key H-1B program provisions and make appropriate changes as needed. The GAO also recommends that the Departments of Homeland Security and Labor take steps to improve efficiency, flexibility, and monitoring of the H-1B program.

The full report is available at http://www.gao.gov/products/GAO-11-26. Highlights are available at http://www.gao.gov/highlights/d1126high.pdf.

National Agricultural Workers Survey data. The Department of Labor’s Employment and Training Administration has released National Agricultural Workers Survey data for fiscal years 1989-2009. The survey contains information from 52,479 in-person interviews with hired crop farm workers. The interviews were conducted in 467 counties and 40 states between October 1, 1988, and September 30, 2009. The document describes the data and provides analysis tips.

The notice is available at http://wdr.doleta.gov/directives/corr_doc.cfm?docn=2974. The document is available at http://wdr.doleta.gov/directives/attach/TEN/ten2010/TEN_21-10.pdf, and additional information and the data are available for downloading at http://www.doleta.gov/agworker/naws.cfm.

SEVIS/SEVP schools and statistics. U.S. Immigration and Customs Enforcement (ICE) has updated the list of approved schools under the Student and Exchange Visitor (SEVP) program. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf. A clickable map is available at http://www.ice.gov/sevis/map/approvedschoolsmap.htm. The latest quarterly review, “SEVIS By The Numbers,” a statistical breakdown of the Student and Exchange Visitor Information System’s performance and trends in foreign student representation in U.S. academic and exchange programs, is available at http://www.ice.gov/doclib/sevis/pdf/quarterly_report_ending_sept2010.pdf.

9. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was named by Georgia Trend magazine as one of the 100 most influential Georgians in 2011. People who made the list were those who “affect the course of events in Georgia” and “influence what you think and how you live.” Mr. Kuck’s profile notes that Mr. Kuck “has spent his professional life in the pursuit of justice.” See http://www.georgiatrend.com/cover-story/01_11_mig.shtml.

Mr. Kuck also has had a new blog entry published, “Why a Company Should Not Audit Its Own Forms I-9,” which discusses and provides a link to the ICE I-9 field manual and argues that I-9 self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. The blog is available at http://www.electronici9.com/?p=940.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published several new blog entries. “The Absurdity of the Birthright Citizenship Act of 2011,” which discusses the granting of citizenship to those born in the U.S., is available at http://cyrusmehta.blogspot.com/2011/01/absurdity-of-birthright-citizenship-act.html. “One Year After the Neufeld Memo: Can the Beast Ever Be Tamed?,” which discusses questioning of H-1B employers and workers, is available at http://cyrusmehta.blogspot.com/2011/01/one-year-after-neufeld-memo-can-beast.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “Rethinking Employment-Based Immigration: Stop the GOP’s Slide Toward Socialism,” which takes a look at Republican efforts to increase enforcement and expand E-Verify participation. He argues that a truly Republican approach would lift the “red tape” burden of these programs from the shoulders of employers, and recommends 13 actions the GOP should take. The blog is available at http://www.nationofimmigrators.com/?p=377.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) has co-authored a new law review article in the Fordham Urban Law Journal (38 Fordham Urb. L.J. 183 (2010)). The article, “Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System,” focuses on problems in the EB-1-1, EB-1-2, and NIW areas. The article first examines how other national immigration systems entice the best and brightest immigrants. It then examines the current U.S. immigration system and its evolution since the Immigration Act of 1990. Finally, the article suggests how the United States can improve its immigration system to continue to attract talented immigrants.

10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html