OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

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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.

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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.

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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.

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On June 20, 2008, the Department of State (DOS) revised its regulations governing J-1 visas by publishing the final rulein the Federal Register. The rule creates a new “Student Interns” subcategory to the College and University Student J-1 visa category. Foreign students enrolled and pursuing a degree at post-secondary academic institutions outside of the United States may participate in this category for up to 12 months at each degree level. DATES: This Final Rule will be effective July 21, 2008.

This new rule will make it possible for private sector organizations to offer internships to individuals with less training and experience than had previously been required of J-1 “trainee” category participants. To be eligible as an intern in a private sector program, foreign nationals must be currently enrolled in and pursuing studies at an academic institution or a recent graduate (i.e., within 12 months) from such institution. As an intern, the intern program participant will enter the United States to pursue a structured and guided work-based internship program in his or her specific academic field. Prior work experience is nor a requirement for participation in this program.

Sponsors of J-1 interns will be required to ensure that host organizations are legitimate entities, are appropriately registered or licensed to conduct their business, and possess and maintain the ability and resources to provide structured and guided work-based experience according to individualized Training and Internship Placement Plans. The Final Rule permits a student intern to engage in full-time employment during the internship program as outlined on the T/IPP, with or without wages or other compensation. Employment is not required for participation in the program. A student intern may be employed, however, only with the approval of the responsible officer and the student’s home institution’s dean or academic advisor.

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The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

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The CSPA protects family-based 2(A) preference children of Permanent Residents

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. The CSPA applies to children of Lawful Permanent Residents (“LPR”) if Form I-130 (Petition for Alien Relative) is filed on their behalf. To qualify under the CSPA, the child of the LPR must be “under age 21” as defined by the CSPA (and unmarried) at the moment that s/he obtains immigrant status. Specifically, if the Immigrant petition is filed by an LPR and the immigrant petition is approved and the priority date becomes current before the applicant’s “CSPA age” reaches 21, the child will not “age-out.” In order for CSPA coverage to continue, the child must apply for permanent residence within one-year of the date the priority date became current.

The calculation of the CSPA age involves two formulas. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

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The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

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Dada v. Mukasey, No. 06-1181, 554 U.S. ___ (June 16, 2008)

The Supreme Court held that voluntary departure recipients must be permitted to unilaterally withdraw a voluntary departure request before the expiration of the voluntary departure period “to safeguard the right to pursue a motion to reopen.” The Supreme Court rejected the argument that the voluntary departure period automatically tolls when a motion to reopen is filed.

Case Summary:

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It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.

The key elements of an employer’s audit file should include the following:

1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application

2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application– If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created

3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice

4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient

5. Proof of job order placement
A copy of the State job order print document will be adequate

6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees

If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file

7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file

8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads – copies of the newspaper pages in which the advertisements appeared will suffice
– if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate

• Job Fairs – a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient

• Employer’s Web site – a dated copy of the page from the website that advertises the occupation involved will suffice

• Job Search Web site (other than employer’s)
– a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate

• On-Campus recruiting – copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient

• Trade or professional organization journals/newspapers – copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice

• Private employment firms – copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate

• Employee referral program with incentives – dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient

• Campus placement offices – a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice

• Ads in local and ethnic newspapers – copies of the newspaper pages in which the advertisements appeared will suffice

• Radio and Television advertisements – a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired
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