BACK TO THE PAST: I-9 FORM RESTORED

The USCIS posted a new edition for Form I-9, Employment Eligibility Verification, dated 6/16/08, to its website. That edition has been recalled.

It was later announced that the previous edition of the form dated 6/5/2007 (expiration date June 30, 2009) would be restored to active status.

The current I-9 shows that five documents have been removed from List A of the List of Acceptable Documents:

Certificate of U.S. Citizenship (Form N-560 or N-561)
Certificate of Naturalization (Form N-550 or N-570)
Alien Registration Receipt Card (I-151)
Unexpired Reentry Permit (Form I-327)
Unexpired Refugee Travel Document (Form I-571)

One document was added to List A of the List of Acceptable Documents:Unexpired Employment Authorization Document (I-766)

All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766

Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify. E-Verify employers must only accept List B documents with a photo.

Executive Order Directs Agencies to make E-Verify Mandatory for Government Contractors

President Bush issued an executive order on June 6, 2008, requiring that Federal Agencies require all federal contractors to use the E-Verify electronic verification system to ensure their workers can legally work in the United States. The effect of the Executive Order is discussed in a USCIS FAQ which is accessed through our Links Page. 

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR)to require government contractors and subcontractors to join E-Verify. The councils estimate that in the initial fiscal year the rule is expected to be effective (2009) that there will be 168, 324 contractors and subcontractors that will be required to verify their entire workforce, including US citizens, not just new hires.  The rule would require approximately 3.8 million employees to be verified through the electronic system. 73 Federal Register 33377 (June 12, 2008).

 

Miller Law Offices Bulletin: New Optional Practical Training Rules

New Optional Practical Training Rules

The Optional Practical Training (OPT) program allows F-1 international students who are degree candidates to apply for up to 12 months of employment authorization. Students who have received one year or more of full-time curricular practical training or two years of part-time curricular training are ineligible for post-completion OPT.[1] The student must apply for the Designated School Official recommendation, apply for, and receive a CIS Employment Authorization Document (EAD), Form I-766, before beginning employment. The student may not begin OPT until the date indicated on his or her EAD. The EAD processing by the CIS is usually taking at least 90 days, so advance planning and timely execution are necessary to allow the student to meet employment opportunities without delay.

On April 8, 2008, the Department of Homeland Security published an interim final rule which changed OPT rules to provide for a cap gap extension for students sponsored for H-1B employment, extended OPT for STEM program students and changed the timing for the application process for OPT for all students. The interim final rule provides new reporting requirements for students, foreign student officers and employers who participate in the applicable programs. [2]

F-1 Students may now apply for post-completion OPT no more than 90 days before their program end date and up to 60 days after their program end date. The I-765 application for an Employment Authorization Document must be properly filed with the appropriate CIS service center within 30 days of the date the student’s DSO recommends OPT in SEVIS. The student should request the DSO to recommend post-completion OPT within 30 days of the date the student expects the application to arrive at the USCIS Service Center. If the OPT recommendation in SEVIS is dated more than 30 days prior to the receipt date, the CIS has advised that the application may be denied.[3]

The requested end date for post-completion OPT cannot be more than 12 months after the requested start date. The end date may be sooner if the student has less than 12 months of OPT left at the current degree level or the student wishes to retain a period of OPT for pre-or post-completion OPT for another degree at the same academic level.[4]

The interim final rule also established a limit on the number of days students in a period of post-completion OPT can be unemployed and still maintain F-1 status.[5] For students on regular post-completion OPT or an automatic extension due to the cap gap provisions, the limit is 90 days, including those students with a cap gap extension. Students with an approved STEM OPT extension will receive another 30 days of unemployment time for a total of 120 days over the entire period of post-completion OPT.

Cap gap extension

Under the April 8, 2008 interim final rule[6], a “cap gap extension” has been created. It represents the period in which an eligible F-1 student’s status is automatically extended to bridge the gap between the end of F-1 status and start of H-1B status. If the student is in a period of authorized post-completion OPT on or after the date the student becomes eligible for the extension, the student’s post-completion OPT is also automatically extended.

OPT STEM Extensions

DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs.[7] This regulatory change affected in-status F-1 students enrolled on a full-time basis for at least one full academic year in a college, university, conservatory, or seminary who are eligible for 12 months of optional practical training (OPT) to work for an U.S. employer in a job directly related to the student’s major area of study, provided the accepted employment is accepted with employers enrolled and considered by the CIS to be in good standing in the E-Verify program.

A student with an expired EAD may continue to be employed while a STEM OPT extension is pending based on the automatic extension of the student’s work authorization for up to 180 days.[8]

The interim final rule requires F-1 students with an approved OPT extension to report and periodically verify changes in the student’s name or address and changes in the employer’s name or address. Under the terms of the rule, employers of the F–1 students with these OPT extensions must report to the student’s designated school official (DSO) within 48 hours after the OPT student has been terminated or leaves the employment prior to the end of the OPT period. The CIS issued a SEVP Policy Guidance 0801-01 “Updates to Post-Completion Practical Training” (April 25, 2008), which explained the new procedures to students and their academic advisors.[9]

F-1 students who have received a bachelor's, master's, or doctoral degree on the DHS STEM Designated Degree Program List[10], working for a U.S. employer in a job directly related to the student’s major area of study are allowed to obtain an extension of their existing post- completion OPT period for up to 17 months, for a maximum period of post-completion OPT of 29 months. The extension, however, is only available to students who are employed, or will be employed, by an employer enrolled (and determined by USCIS to be in good standing) in the CIS' E-Verify employment verification program at the time the student applies for the 17-month extension.

The student who applies for the extension must agree to report to a DSO at his or her school the following: Changes to the student's name, the student's residential and mailing address, the student's employer, and the address of the student's employer. The student must also report to a DSO every six months from the date the OPT extension starts to verify this information. In addition, the employer of a student under extended OPT must report to the student's school DSO within 48 hours after the student leaves employment

The employee is considered to have worker departed when the employer knows the student has left the employment or if the student has not reported for work for a period of 5 consecutive business days without the consent of the employer, whichever occurs earlier.[11]

---

[1] 8 C.F.R. §214.2(f)(11).

[2] 73 Fed. Reg. 18944-18956 (April 8, 2008)(interim final rule).

[3] 2008 OPT Guidance §5.3.

[4] 2008 OPT Guidance §6.2.

[5] 2008 OPT Guidance §4.9.

[6] 73 Fed. Reg. 18944-18956 (April 8, 2008)(interim final rule).

[7] Id.

[8] 2008 OPT Guidance §8.4.2.

[9] 2008 OPT Guidance.

[10]The STEM Designated Degree Program List is based on the ``Classification of Instructional Programs'' (CIP) developed by the U.S. Department of Education's National Center for Education Statistics (NCES). See Classification of Instructional Programs--2000: (NCES 2002- 165) U.S. Department of Education, National Center for Education Statistics. Washington, DC: U.S. Government Printing Office. This publication may be found at http://nces.ed.gov/pubs2002/2002165--2.pdf. The approved list is available on SEVP's Web site at http:// www.ice.gov/sevis. DHS will announce any future changes to the list on this Web site.

[11] Interim Rule at 18955-18956.

17-Month Extension of OPT

17-Month Extension of Optional Practical Training for Certain Highly Skilled Foreign Students

Release Date: April 4, 2008

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

Optional Practical Training Interim Final Rule (PDF, 48 pages - 2.9 MB)

The U.S. Department of Homeland Security released today an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.

“This rule will enable businesses to attract and retain highly skilled foreign workers, giving U.S. companies a competitive advantage in the world economy,” said Homeland Security Secretary Michael Chertoff. “By extending the training period by an additional 17 months to students who are employed by businesses enrolled in E-Verify, we are further ensuring a legal workforce in the U.S. and aiding good corporate citizens.”

Another aspect of the rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions. The rule will also implement certain programmatic changes, including allowing students to apply for OPT within 60 days of graduation.

To be eligible for an OPT extension, an F-1 non-immigrant student must:

• Currently be participating in a 12-month period of approved post-completion OPT;
• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM) included in the DHS STEM Designated Degree Program List from a college or university certified by the U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program;
• Be working for a U.S. employer in a job directly related to the student’s major area of study;
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees; and
• Properly maintain F-1 status.

The interim final rule and additional information on the H-1B program is available at www.dhs.gov.

 

From Bender's Immigration Bulletin: Charles Miller Obtains FOIA CBP IFM

CBP Inspector's Field Manual on the web
AILA member Charles "Chuck" Miller (a former INS attorney) managed to obtain much of the current IFM through a FOIA request. (Ongoing; he is still negotiating with CBP for further releases.) He has posted it to his website, linked here. Large file: 354 pages, almost 2MB, so download may be slow depending on your connection. Fully searchable with Adobe Acrobat. Chuck says Ch. 15 is especially interesting.

 

 

Hiring foreign professionals? The April 1st H-1B Deadline Approaches

Hiring foreign professionals?  The April 1^st H-1B Deadline Approaches

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelors degree for professional jobs each year.  The first date that H-1B petitions are accepted by the USCIS for employer filing for 2008 employment is April 1^st.  The competition for the 58,200 H-1B numbers is keen; in 2007 there were 150,000 employer petitions filed in the first two days requiring a USCIS random selection of the successful petitions.

To maximize your applicant’s chances for employment authorization, your company should also consider the following :

1.       Use an immigration lawyer with experience in successful H-1B filing.  An improperly filed petition will be rejected, and refiling will likely also be rejected if the cap cases are closed after the first day or two.

2.       U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers.  There is also competition for those additional numbers as that cap was reached on April 30^th last year.

3.       Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

4.       Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers.

5.       Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

6.       The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

7.       Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

 

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to info@millerlawoffices.com .

The Miller Law Offices is an AV rated law firm by the Martindale-Hubbell Legal Directory. This represents the highest of the legal ability and general ethical standards ratings given to law firms in the United States. The firm’s website, www.millerlawoffices.com,  contains an immigration bulletin with news and analysis, as well as timely publications of interest to the business and professional communities.

From BNA: Myers to Continue Worksite Enforcement in 2008

ICE PLANS TO CONTINUE TARGETED ENFORCEMENT, ENCOURAGING COMPLIANCE IN 2008, MYERS SAYS

12 BNA DAILY LABOR REPORT A-1 January 18, 2008

In 2008, Immigration and Customs Enforcement plans to continue targeted worksite enforcement efforts while reaching out to employers to comply with immigration laws, Assistant Secretary of Homeland Security Julie Myers said at a Jan. 17 American Bar Association Homeland Security Law Institute conference.

Myers, who heads ICE within the Department of Homeland Security, said because ICE is approximately five years old, it is a good time to assess how to move forward with worksite immigration enforcement despite the failure of Congress to enact comprehensive immigration legislation.

“We don't have access to Social Security Administration information about the top 20 employers with the highest rates of non-matching Social Security numbers," she said. "The tax laws prevent us from getting that information from SSA," so ICE doesn't target employers in that way, she said.

Instead, ICE engages in a "risk-based approach" to worksite enforcement and will continue to use this tactic, Myers said. "We target the worst of the worst employers" who hire illegal immigrants as a part of their business model, she said.

Several types of activity are typical of "egregious" employers, Myers said."Money laundering, tax evasion, and schemes where employers use mobile check cashing services to pay workers are all common," she said. In many of these situations the Department of Justice can bring federal charges, she said.

ICE "won't bring criminal charges against employers who accidentally hire an illegal alien," Myers said. Criminal charges are brought against those employers who are "paying workers off the books, ripping up W-2s, and otherwise making an illegal workforce part of the structure of their business," she said.

Myers Calls for 'Culture of Compliance.'

The risk-based approach to targeting employers who hire illegal immigrants is one method of curbing illegal immigration, Myers said. However, criminal cases against employers "won't be enough" and we need a "culture of compliance with immigration laws," she said.

IMAGE, a partnership program between a participating business and ICE promoting the use of best practices, is one method to create a culture of compliance, Myers said. ICE will continue to promote this program in 2008, she said. IMAGE -- ICE Mutual Agreement between Government and Employers -- began in July 2006. IMAGE creates a binding partnership between a participating business and ICE, promoting the use of screening tools, best practices, and continuing education to determine employment eligibility based on immigration status, according to ICE's Web site.

Additionally, in 2008 there will be "a lot more I-9 inspections of employers," Myers said. ICE has the authority to audit the I-9 employment verification form records of any employer. The IMAGE program and the increased inspections foster best practices among companies that have a "long-term business benefit," she said.

Myers said one additional expected development in compliance is that employers who violate immigration law and settle claims with ICE will be required in many settlements to "invest money to make sure they are in compliance with the law going forward."

'No-Match' Rule Expected to Move Forward.

Myers said she expects an additional tool to combating illegal immigration in 2008 -- the use of no-match letters. "I think we will prove victorious in the no-match lawsuit," Myers said. "This will give employers the clarity they need," she said.

The lawsuit was brought by a consortium of labor, civil rights, and business groups challenging a DHS rule under which the Social Security Administration would include in its no-match letters language on employer liability for violating immigration laws (AFL-CIO v. Chertoff, N.D. Cal., No.3:07-cv-4472-CRB, filed 8/29/07).

"We expect legal challenges like the no-match lawsuit," Gus Coldebella, acting general counsel for DHS said. DHS is a new agency "exploring new areas of the law and taking novel actions," he said.

In coming months, DHS will issue clarifications to the no-match rule addressing the court's three main concerns, Coldebella said. On Dec. 14 a federal trial judge agreed to stay proceedings in the lawsuit to give DHS time to develop or amend regulations regarding employer notifications to accompany the no-match letters ( 241 DLR A-1, 12/17/07).