H1B Visa Lawyer Blog

MVP "Q & A Forum" - This Friday, August 20, 2010

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, August 20, 2010. Act now and submit your questions!

THANK YOU!

MVP Law Group's first "Question & Answer" Forum was launched on Friday, June 25, 2010. Please click here to review the questions received and answers provided.

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, or the new debate focused on Ending Birthright Citizenship, please do not hesitate to contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, July 9, 2010. Act now and submit your questions!

THANK YOU!

Question #1 - Employment Based Immigration – Green Card
I heard if there are quite a few cases between Feb 2005 and October 2005, USCIS staff can work on cases only up to available VISA numbers and once the numbers are consumed, then it could go back to Feb or March 2005 with the next VISA bulletin.
Hence to not to take any chances, I heard we could call them (USCIS) and provide details of our case so that based on first come first call, they would process and issue the GC.

Answer #1
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #2 - Employment Based Immigration – Green Card (AC-21)
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #2
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL.

Question #3 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year sometime. When is the earliest that I can file my renewal petitions?

Answer #3
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2010, the earliest you can file is on or after June 19, 2010.
According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS will issue an RFE requesting your current AP document before issuing a new AP document.

Question #4 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I have vacation plans to go to India in the first week of July 2010. Can we file my H-1B extension petition prior to my leaving? Or can you hold it and file the case after I cross the border?

Answer #4
You may file your H-1B extension prior to your departure; however, unless you upgrade your case to Premium Processing, your vacation plans will need to be delayed. When you have a case pending with the USCIS, you CANNOT leave the United States, as they will interpret it as abandonment of your pending case. Additionally, you may not file a case while outside of the United States; you must be present in the U.S. when filing for Immigration benefits.

Question #5 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I’d like to apply for an H-1B visa under the H-1B CAP. Is the H1B Visa Quota still available for the year 2010?

Answer #5
The H-1B 2010 CAP opened on April 1, 2009 and closed December 25, 2009. The H-1B FY2010 ran from October 1, 2009 until September 30, 2010. FY stands for Fiscal Year. 65,000 visas have already been allocated for FY2010.
The H-1B 2011 CAP opened on April 1, 2010 and is still OPEN. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. As of June 18, 42,100 visas are still available for FY2011.

Question #6 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
One of our consultants is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

Answer #6
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #7 – Family Based Immigration – Green Card – Marriage Based (K1)
Is there any type of restrictions on a 'conditional green card”? Once my wife gets her green card, can she travel (internationally)?

Answer #7
Yes, she can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, they want to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after she applies to remove them, she will receive a GC valid for 10 years.
Within 90 days of the two-year anniversary of obtaining conditional residence, you and your wife will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your wife will officially have Lawful Permanent Residence in the US.

Question #8 – General
Please explain for me what “priority date becoming current” means? I filed under EB2 category.

Answer #8
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you are being filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.
In addition to the above website, you can go to http://immigrationroad.com/green-card-tracker.php and track how many green card applicants are in front of you using your priority date and preference category.

Question #9 – Student Visa (F1) and Extension of OPT
Our company just enrolled in E-Verify, what documents are needed when applying for the OPT extension?

Answer #9
The interim final rule extends the maximum period of OPT from 12 months to 29 months for F- 1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program. Normally, the OPT extension process would need to be initiated at least 90 days before expiration of the current OPT.

The documents that are needed for the OPT extension are provided below:
• Completed original I-765 Application for Employment Authorization;
• Form I-765 Application fee of $340 USD check or money order made payable to “US. Department of HomelandSecurity”;
• Copy of valid Employment Authorization Document (EAD);
• Copy of ALL passport biographical information pages (including photo, birth date, expiration date). Passports must be valid for at least six months beyond end date of OPT;
• Copy of F-1 visa page or Form I-797: Change of status to F-1 approval notice;
• Copy of I-94 card (front and back);
• Copy of current SEVIS I-20 (pages 1 and 3);
• Copy of National University official transcript or a copy of diploma indicating level and program of study;
• Two U.S.-style passport photos (four recommended);
• Proof of your company’s enrollment in E-Verify.

Question #10 – General
Should my company enroll in E-Verify?

Answer #10
We have posted some articles on our H-1B Visa Lawyer Blog in recent months that may help answer your questions as to enrollment, procedures and other information. Several links have been provided below which: explain the program; provide a link to the website for enrollment, list the Dos and Don’ts of the program, and point out the potential drawbacks of the program.

What is E-Verify?

I-9 Employer Handbook

DOs and DONTS

Potential drawbacks

MVP Law Group would like to thank everyone who contributed a question or comment. We hope that the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, July 9, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Big changes are coming to E-Verify in June that will enhance its usability, security, accuracy and efficiency. The newly redesigned E-Verify features a clean and modern design, easy and intuitive navigation, and clear and simple language. A new home page, a reimagined case alerts feature, improved case management and a streamlined tutorial are among the dozens of improvements coming to E-Verify.

Check out the new E-Verify Redesign section of the E-Verify website to learn more about what’s coming and how to prepare. The new section highlights several of the exciting new features and offers information on how to get a sneak preview in June before the site launches.

Want to know more about the redesigned E-Verify? USCIS is offering a sneak preview Webinar the week before the new site is launched. The 90-minute Webinar will be conducted by a member of the redesign team and will feature a presentation of the changes as well as a question and answer session.

E-Verify Redesign Sneak Preview

Wednesday, June 16, 2010, at 10:00 a.m. EDT and 3:30pm EDT. Space is limited, click here to register for the E-Verify Webinar.

IMPORTANT NOTICE for EMPLOYERS ALREADY ENROLLED IN E-VERIFY:
In conjunction with the redesign of the E-Verify web interface, employers will be required to complete the new on-line tutorial before being able to E-Verify new workers.

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE), and the U.S. Department of Labor’s Office of Inspector General in Chicago, the president and office manager of two Bensenville, Illinois, temporary staffing companies were charged with unlawfully hiring dozens of illegal aliens to form their labor pool. Each was charged with one count of unlawfully hiring illegal aliens between October 2006 and October 2007. The charges also seek forfeiture of $488,095, which was seized from various bank accounts as well as the Bensenville office. Additionally, the defendants allegedly paid their workers’ wages in cash and failed to deduct payroll taxes or other withholdings. According to the allegations, they repeatedly withdrew funds in the amount of $9,800 from bank accounts to pay their employee’s wages in cash, believing that withdrawing amounts less than $10,000 would avoid triggering the banks’ currency transaction reporting requirements. If convicted, unlawfully hiring illegal aliens carries a maximum penalty of five years in prison and a $250,000 fine.

It has become apparent that ICE aggressively targets employers who violate immigration laws by knowingly employing an illegal workforce. Gary Hartwig, special agent in charge for ICE Office of Investigations in Chicago provided, “Employers in all industries and locations must comply with the nation’s immigration laws if we are to have an effective immigration enforcement strategy in this county.”

The MVP Law Group, P.A. provides assistance to employers interested in establishing an effective employment compliance program which includes training administrative personnel and other employees. If you are interested, please contact our office.

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE), a San Diego-area French bakery, along with its owner and a manager, were charged in a 16 count indictment. The indictment alleges that the defendants conspired to engage in a pattern or practice of hiring and continuing to employee unauthorized workers, a misdemeanor, in addition to 14 felony counts, including making false statements and shielding undocumented alien employees from detection. If convicted, the owner and manager of the bakery face a maximum of five years in prison and a $250,000 fine on each count. The indictment also seeks criminal forfeiture of proceeds gained from the corporation’s unlawful activities.

It has become apparent that ICE aggressively targets employers who violate immigration laws by knowingly employing an illegal workforce. Mike Carney, acting special agent in charge for ICE Office of Investigations in San Diego provided, “this indictment shows ICE’s commitment to holding businesses accountable when they repeatedly ignore immigration laws as it relates to their workforce. The goal of our enforcement is two-fold, first to reduce the demand for illegal employment and, second, to protect job opportunities for the nation’s lawful workforce.” In FY 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.

The MVP Law Group, P.A. provides assistance to employers interested in establishing an effective employment compliance program which includes training administrative personnel and other employees. If you are interested, please contact our office.

The United States Citizenship and Immigration Service (USCIS) has released FAQs regarding Federal Contractors and the E-Verify program. The FAQs address what the E-Verify program is, how it works, and the reason why Federal Contractors must enroll in the program.

Beginning September 8, 2009, all Federal Contractors and Subcontractors who enter into contracts on and after September 8, 2009 must be enrolled in the online E-Verify work authorization program.

The E-Verify program is a free optional web based employment verification program that verify's employee's employment eligibility by submitting key information from Form I-9 into the online database.

The purpose of the program is to deter unauthorized individuals from attempting to work, while at the same time helping employers to avoid contributing to an unauthorized workforce.

Companies who are awarded a contract on and after September 8, 2009 will have 30 days from the contract award date to enroll in the E-Verify program.

U.S. Immigration and Customs Enforcement (ICE) launched a bold new audit initiative in 2009 to combat the problem of hiring of an illegal workforce.

On March 2, 2010, 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee were served with Notice of Inspections (NOIs) indicating that ICE would inspect their hiring records (Form I-9) to determine whether they are in accordance with the employment eligibility verification laws and regulations.

Audits involve a comprehensive review of Form I-9s. Form I-9 must be completed and retained for each new hire. Under the Immigration Reform and Control Act of 1986 (“IRCA”), all employers must verify that every person that is hired is either: a U.S. citizen, a lawful permanent resident, or a foreign national with authorization to work in the U.S. Within three business days of beginning the job, a new employee must furnish identity and employment eligibility documents (i.e., passport, permanent resident card, employment authorization card, driver’s license, birth certificate, military id, etc). It is the responsibility of the employer to examine the documents to determine whether they are genuine and relate to the specific employee. Once the I-9 form is completed, they are to be kept in office for the longer of three years after employment begins or one year after employment is terminated. Most importantly, if an employee has temporary employment authorization, a re-verification of employment eligibility must be conducted prior to expiration of the employment authorization.

DHS/ICE officers conduct an estimated 60,000 I-9 audits a year on employers around the country and have issued fines in excess of $1,000,000. Additionally, each mistake on an I-9 Form counts as a separate violation. All employers are further subject to civil and criminal penalties for knowingly hiring or continuing to employ aliens who are not authorized to work in the U.S.

In the News Release announcing the issuance of the NOIs, Raymond R. Parmer, Jr. acting special agent in charge of the ICE Office of Investigations in New Orleans stated that “ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This effort is a first step in ICE’s long-term strategy to address and deter illegal employment.”

Accurate completion of I-9 forms is a good faith defense to a charge of hiring unauthorized workers. Therefore, the best way for an employer to avoid IRCA problems is to establish a meaningful I-9 audit system.

If you are interested in conducting an internal I-9 Audit to ensure your company’s compliance with the employment eligibility verification laws and regulations, contact our office today.

U.S. Immigration and Customs Enforcement (ICE) launched a bold new audit initiative this year to combat the problem of hiring of an illegal workforce.

On July 1, 2009, 654 businesses nationwide were served with Notice of Inspections (NOIs) indicating that ICE would inspect their hiring records (Form I-9) to determine whether they were in accordance with the employment eligibility verification laws and regulations. The businesses presented with the NOIs to Audit Form I-9 were selected as a result of leads and other information obtained through other investigative measures. This was the first step for ICE in its nationwide plan to promote compliance with the employment eligibility laws through an effective I-9 Audit system.

Audits involve a comprehensive review of Form I-9s. Form I-9 must be completed and retained for each new hire. The form requires the employer to review several personal identification documents of the new hire (i.e., passport, permanent resident card, employment authorization card, driver’s license, birth certificate, military id, etc) and to determine the genuineness of the documents.

The statistics resulting from the 654 businesses audited by ICE are provided below:
• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents—approximately 16 percent of the total number reviewed
• To date, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are currently being considered for Notices of Intent to Fine (NIFs).
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

Furthermore, on November 19, 2009, ICE Assistant Secretary John Morton announced the issuance of NOIs to 1,000 employers across the country associated with critical infrastructure.

In the News Release announcing the issuance of the NOIs, Assistant ICE Secretary Morton stated that “ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces.” ICE Audits are one of the most important administrative tools in building criminal cases and bringing employers into compliance with the law.

If you are interested in conducting an internal I-9 Audit to ensure your company’s compliance with the employment eligibility verification laws and regulations, contact our office today.

On Wednesday, October 28, 2009, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill. This Law provides a three year extension for four (4) immigration related programs. Specifically, the law extends the non-minister religious worker program, the “Conrad 30” program, the EB-5 visa program, and the E-Verify program through September 30, 2012.

The information contained in this web posting was provided by:
AILA InfoNet Doc. No. 09102968 (posted Oct. 29, 2009)"

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE), the Social Security Administration's Office of Inspector General, the Missouri State Highway Patrol, the U.S. Marshals Service and the U.S. Department of Agriculture, a Missouri poultry processing plant paid $450,000 in fines as part of a settlement agreement for hiring illegal aliens.

As a result of the 2007 poultry plant investigation, ICE administratively arrested 136 illegal alien workers from Mexico and Guatemala within the plant in Cassville, MO. Two of the company's hiring personnel were convicted of harboring illegal aliens and inducing them to remain in the U.S.

An additional provision of the settlement agreement provides that the company has to establish a compliance program to ensure that its employment procedures are in accordance with U.S. immigration laws. Additionally, the company has to train its human resource managers and employees on how to avoid hiring an illegal workforce.

It has become apparent that ICE aggressively targets employers who violate immigration laws by knowingly employing an illegal workforce. The funds received as a result of these types of investigations are used to promote future law enforcement programs and activities with the purpose of deterring employers from employing an illegal workforce.

The MVP Law Group, P.A. provides assistance to employers interested in establishing an employment compliance program which includes training administrative personnel and other employees. If you are interested, please contact our office.

The United States Citizenship and Immigration Service (USCIS) recently announced that the 8/7/2009 revision of Form I-9, which is currently located on the USCIS website will remain valid until 8/31/2012.

U.S. employers should no longer be using outdated versions of Form I-9. However, the Service has indicated that employers may use versions 8/7/2009 or 2/2/2009 of Form I-9 until 8/31/2012. The revision date is located in the bottom right hand corner of the form.

The updated Form I-9 is available in English and Spanish via the USCIS website. Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.

If you need assistance in completing Form I-9, or are interested in conducting an in-house Form I-9 Audit, please contact our office for assistance.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices has recently comprised a list of various DO’S and DON’TS for Employers when utilizing the E-Verify program.

DO…use E-Verify on all NEW employees, after they have completed Form I-9
DO…post required notices of the Employer’s participation in E-Verify
DO…secure the privacy of Employee’s personal information
DON’T…use the E-Verify program to verify CURRENT employees
DON’T…use the E-Verify program based upon SUSPICION
DON’T…terminate or take adverse action against an employee contesting a tentative nonconfirmation

For the complete list of the DO’S and DON’TS associated with the E-VERIFY program, please click here!

As of April 3, 2009, the United States Citizenship and Immigration Services (USCIS) indicated that U.S. employers should no longer be using outdated versions of Form I-9. The updated Form I-9 has been available in English and Spanish via the USCIS website since it was revised in February.

Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.

If you need assistance in completing Form I-9, or are interested in conducting an in-house Form I-9 Audit, please contact our office for assistance.

E-Verify is a federal program in which employers may voluntarily sign up electronically to be able to identify the employment eligibility of new hires against federal databases in a matter of minutes. How it works: An employer requests that a new hire complete Form I-9, and with the information provided on the form, and the documentation needed to prove eligibility, the employer manually enters the information into the E-Verify database. Two things may occur once this takes place: (1) the employer receives confirmation that the new hire is authorized to work in the United States; or (2) a tentative non-confirmation (TNC) is issued, indicating that the federal program cannot identify that the new hire is authorized to work in the United States. If a TNC is issued, the employer must provide the applicant with information and guidance on how to resolve the issue, and a secondary verification process must occur within ten days before a final determination is made on the applicant’s employment eligibility.

The State of Illinois created legislation in regards to the passage of the Employment Eligibility Verification Program, otherwise known as “E-Verify.” In summary, the Illinois Act provides that employers are prohibited from enrolling in any Employment Eligibility Verification System, including the Basic Pilot program, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employes within three days, unless otherwise required by federal law.

At issue is whether the Illinois Act is invalid under the Supremacy Clause of the United States.

State laws are invalid under the Supremacy Clause if the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Congress put the federal program in place as a means to verify the employment eligibility of new hires. The federal statute states that any employer may participate. The problem lies with the fact that Illinois has enacted legislation to prohibit employers from utilizing the program. As such, the District Court provided that the Illinois Act frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal program unless the Federal program meets Illinois’ standards for accuracy and speed. Illinois cannot dictate to Congress the standards that federal programs must meet. This clearly frustrates the Congressional purpose of making the Federal program available to all employers. Accordingly, the Illinois Act is invalid under the Supremacy Clause, and the State of Illinois is permanently enjoined from enforcing the invalid act.

The United States Citizenship and Immigration Service (USCIS) recently released the updated version of the Form I-9 Employer Handbook.

The handbook provides the basic steps involved with a new hire, including the forms that must be completed, what documents are acceptable and step-by-step directions on how to correctly complete Form I-9.

The handbook also explains the reason we have Form I-9 for employment eligibility, mentions unlawful discrimination and penalties for prohibited practices, and discusses the E-Verify online program component for interested employers.

The handbook also provides the most current Form I-9, which may be printed and copied by all employers.

The MVP Law Group recommends that all employers download the I-9 Employer Handbook as a reliable tool for assisting with I-9 compliance. If your company needs assistance with I-9 compliance, please do not hesitate and contact our office to discuss how we may help!

In an effort to reduce the amount of Tentative Non-confirmations (TNCs) being issued by the United States Citizenship and Immigration Service (USCIS), the Service has teamed up with the Department of State (DOS) and has incorporated DOS passport data into the E-Verify employment authorization program.

Before this joint effort, foreign born citizens were receiving far more mismatches (otherwise known as tentative non-confirmations) than U.S. born citizens. Those who received TNCs had to physically visit a Social Security Administration (SSA) office in order to attempt to resolve the issue. Before this enhancement, receiving a mismatch was a scary and tiresome burden to overcome.

However, now, if the Department of Homeland Security (DHS) or the SSA is unable to immediately confirm a citizen’s work eligibility, the USCIS can check DOS passport records prior to issuing a TNC. Accordingly, if citizenship information provided on Form I-9 matches those records, E-Verify will then confirm the individual’s work authorization. Additionally, for those foreign born U.S. citizens who receive TNCs, they may now sort the issue out over the telephone with the USCIS rather than physically entering a SSA office.

Effective February 20, 2009, ALL federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system. This program allows for employers to electronically verify the employment eligibility of their employees.

This new rule which is addressed in Executive Order 12989 reinforces the policy that the federal government does business with companies that have a legal workforce.

Specifically, this rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term.

To read the entire news release, please click here.

In my previous blog entry, I informed you of the E-Verify program instituted by the Federal Government. The Federal Government is requiring all of its contractors to utilize this system for employment verification of their employees. Even though this is a positive first step in ensuring that employers comply with legal hiring practices, the E-Verify system does have its drawbacks.

All participating employers are required to enter personal information from Form I-9 into the government database in order to submit a query to verify a new hire’s employment eligibility. All employers who sign up with E-Verify must manually enter this key information into the government database and wait for a response that will take approximately three (3) to five (5) seconds. Although this may seem like a simple task, there is a great chance for human error. If an employer enters the wrong data into the query, and in return receives a TNC or a mismatch, the employee is required to fix the problem, either in person or over the telephone with either the SSA or USCIS, to confirm their work authorization. This TNC or mismatch turns into a headache for the employee as well as the employer. Accordingly, there is a strong possibility that people that are legally authorized to work in the U.S. may be denied because of simple human data error.

Additionally, as with any Internet based computer programs, there is a possibility that the “system” could go down due to receiving too many queries at one time, or due to minor computer system glitches. However, the USCIS claims that E-Verify has the capacity to handle up to 60 million queries per year, and promises that it will continue to work to update the current pilot architecture to handle more queries if needed.

In addition, this program puts extra burdens on employers. Employers must have internet access in order to submit a query through E-Verify. Employers who do not already have existing Internet services must obtain them if they would like to enroll in E-Verify. Essentially, the employment eligibility program is a burden for those employers who wish to utilize E-Verify in the restaurant industry, retail stores, fast food chains, etc.

Furthermore, there have already been complaints of legally authorized workers receiving mismatches, or a TNC because a name change was not reported to the SSA, or because the employee had just been naturalized and the program had not been updated to reflect the recent change in status. At this time, the USCIS has reported that E-Verify does an automatic check of DHS naturalization records, and if no record is found, allows employees to call USCIS to correct their record rather than travel to a SSA office to contest the issue. Accordingly, there is still room for error.

Furthermore, employer participation in E-Verify does not provide a safe harbor from worksite enforcement, or more typically known as an ICE raid, conducted by the Immigration Customs Enforcement Team. However, an employer who verifies employment eligibility through E-Verify will have assumed to have not knowingly hired an unauthorized alien. Nevertheless, employers may still be given excessive fines if unauthorized workers are found during an ICE raid.

*E-Verify cannot be used for employees who do not yet have a Social Security Number (“SSN”) As an employer, you should not submit the query until you have obtained the employee’s SSN; however, you should complete all other necessary information on Form I-9.

According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is a free Internet based system that electronically verifies the employment eligibility of newly hired employees. The verification program has existed for more than a decade, but is now being promoted by the Bush administration as a Homeland Security and Immigration control measure. The program is operated by the Department of Homeland Security (“DHS”) in partnership with the Social Security Administration (“SSA”). The U.S. Citizenship and Immigration Services (“USCIS”) is the agency in DHS responsible for administering the program. USCIS promotes the program as an essential tool for employers committed to maintaining a legal workforce. The program is easily accessible through a user-friendly government Web site, which allows employers to verify employment eligibility in three (3) to five (5) seconds. The program essentially compares employee information taken from Form I-9 with more than 444 million records in the SSA database, and more than 60 million records in DHS immigration databases.

Essentially, once enrolled, an employer must initiate a query by entering key information from Form I-9 into the E-Verify database within three days of an employee starting work. The key information that must be entered includes: the employee’s name and date of birth, social security number, the citizenship status he or she attests to, and the type of document provided on Form I-9 to establish work authorization status. Additionally, the following would be entered in the initial query, if applicable: an A number or I-94 number, and proof of identity, and its expiration date. Once the information is entered into the query, the employer will submit the query and wait a few seconds for a response. Depending upon the response, the employee will continue to work for the employer, or they will contest a Tentative Non-confirmation (“TNC”) or mismatch with the appropriate federal agency within eight federal business days. If the program issues a final non-confirmation, the employee shall not be further employed.

E-Verify is an entirely voluntary program, as such the government may not mandate its use by the states, according to the tenth amendment of the U.S. Constitution. However, some Federal Government employers and violators of certain immigration laws may be ordered to participate.

Under E-Verify, Employees have Rights Too

Quick lists of Employee rights are available online at at the USCIS website and downloadable in eight different languages. Some of the key points are summarized below. Not only must employers post a notice informing employees of their use of E-Verify, they must also only use E-Verify after hire and after completion of the Form I-9, that way employees are protected from pre-screening discrimination practices. Additionally, if an employee receives an information mismatch, the employer must provide the employee with the necessary information to challenge the mismatch, including a written notice generated by E-Verify, and allow him/her eight federal government work days to contest the mismatch. Most importantly, the employer may not take any adverse action against an employee because he/she contests the mismatch; this includes firing, suspension, withholding pay or training, or otherwise infringing upon his/her employment.