Understanding E-Verify: What is It, What Are Employer’s Obligations, and What Does Your Data Tell the Government

January 17th, 2014

E-Verify is a free, Web-based program that allows employers to verify the employment eligibility of their new hires and certain other workers electronically. Operated as a partnership between DHS and the Social Security Administration (SSA), the program is administered by USCIS.  The program was established to reduce unauthorized employment, reduce employment-verification-related discrimination, reduce the burdens on employers, and protect employers from civil and criminal penalties related to claims of hiring unauthorized workers. While the program is mostly voluntary, some employers are required to use the program to ensure their employees are work authorized. Those required to use E-Verify include most federal contractors and subcontractors who enter into or continue contracts with federal executive departments and agencies for all new hires and/or all persons performing services for certain federal contracts. In addition, some states require E-verify for their contractors, and Arizona requires it for all of its employers. There is little doubt that E-Verify will become mandatory for all employers as part of any comprehensive or even piecemeal immigration reform that is enacted in the future. In the meantime, employers considering registering for the program now should understand the requirements that attach to their participation and some of their potential liabilities:

 

Employers who use E-verify have a number of obligations that commence after an employer registers and signs an electronic E-Verify Memorandum of Understanding (MOU), which explains the terms and conditions. Under the MOU, the employer agrees to: (1) use E-verify only after new hires have accepted employment offers and completed their Form I-9s, Employment Eligibility Verification; (2) use E-Verify within three days of their new hire’s actual start date; (3) use E-Verify  only for new hires, not existing workers, unless otherwise required; (4) use the data obtained on Form I-9 to enter information into the E-Verify system; (5) display federal notices for E-Verify at their workplace; and (6) accept only “List B” identification documents with photographs as part of I-9 procedures.  Employers who use E-Verify also agree to comply with other responsibilities related to record-keeping and response procedures when information provided by the new hire does not match federal records. This includes reviewing “tentative nonconfirmation” (TNC) responses issued by SSA with their employee and reporting back to SSA/DHS with details on resolving the TNC. Participating employers also agree to permit DHS or SSA to make periodic visits to review its E-Verify records and share information with other government agencies.  During those periodic visits, DHS or SSA officials are permitted to interview employees directly. Employers who participate in E-Verify can terminate the program but only after giving 30 days notice.

 

In early December, E-Verify released new and revised MOUs that bind existing users and new users to changes made to the program. Most of these changes are not substantive but instead appear to reflect improved language and organization, as well as some enhanced privacy protections and instructions for reporting privacy and security breaches. While existing users do not need to execute new MOUs, they are bound by these changes. The effective date for existing users is January 8, 2014.  For new users, the effective date of the revised MOUs is December 8, 2013.

 

A new feature of E-Verify is that the system now can lock Social Security numbers (SSNs) that appear to have been used fraudulently, like a credit card company can lock a credit card that appears to have been stolen. If an employee attempts to use a locked SSN, a TNC will be generated.

 

As mentioned above, participating employers agree to governmental information sharing. Three years ago, DHS formalized such information sharing and entered into an agreement with the Department of Justice’s (DOJ) Office of Special Counsel (OSC), the division in DOJ that prosecutes claims of discriminatory hiring practices. Under the agreement, DHS shares with OSC citizenship status and documentation data, which initially was to be used to identify trends that may indicate an employer’s discriminatory practices. However, once the DHS/OSC information sharing program was up and running, OSC began using this data to initiate investigations of employer discrimination, even in the absence of employee complaints.  And, such investigations are on the rise.

 

With more and more employers enrolling in E-Verify — either because they want greater confidence in the validity of the documents presented by their employees and less risk of fines for making mistakes, or because they are now required to do so — it has become increasingly important for employers to understand all aspects of the program and ensure that their staff are well versed and trained in the program’s requirements. For starters, employers who use E-Verify are strongly encouraged to review and familiarize themselves with the new or revised MOU that applies to them. Employers should also adopt best practices, which include preparing a policy-and-procedure manual for I-9 and E-Verify compliance; providing annual and mandatory training for all individuals who complete the company’s I-9s; and periodically auditing and reviewing the company’s processes to ensure that they are being followed properly.

Modest Immigration Relief Measures Offered by USCIS to Filipinos Affected by Typhoon Haiyan (Yolanda); Philippines Government Requests TPS Designation

January 10th, 2014

In the aftermath of the typhoon that struck the Philippines on November 8, 2013, USCIS has advised that Filipino nationals affected by the typhoon may be eligible to benefits from the following immigration relief measures:

  • Change or extension of nonimmigrant status even when the individual request is filed after the authorized period of      admission has expired;
  • Extension or re-parole of individuals previously granted parole by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication of off-campus employment authorization applications for F-1 students experiencing severe economic hardship;
  •  Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications; and
  • Assistance to LPRs stranded overseas without their green cards or travel documents.

On December 13, the government of the Philippines formally requested Temporary Protected Status (TPS) designation status for its nationals currently in the U.S. for 18 months. The Philippines’ request will have to be evaluated by U.S. authorities and may take some time before it is implemented.

Proposed Rule Would Permit Dependents of F-1 Foreign Students to Attend School

January 9th, 2014

ICE has proposed a rule that would allow F-2 dependents of foreign nationals holding F-1 status to study part-time in the United States. Currently, F-2 spouses and dependents are not granted this derivative benefit; rather, they must apply for F-1 visa status on their own, with the exception that a child may attend school through 12th grade. The proposed shift in policy reflects an attempt to attract a greater number of talented foreign nationals to study in the United States, specifically at the graduate and doctoral levels. The rule is open for public comment until January 21, 2014; submit your comments at www.regulations.gov.

Statutory Limit of U Visas for Victims of Certain Crimes Reached for FY2014

January 2nd, 2014

USCIS has announced it has approved the statutory maximum of 10,000 U visas until October 1, 2014, the visa classification granted to eligible victims of certain qualifying crimes who have suffered substantial mental or physical abuse and are willing to help law enforcement authorities investigate or prosecute those crimes. USICS will continue to review pending petitions for eligibility and advises that it will send a letter to all eligible petitioners who are not granted the visa because of the cap, notifying them that they are on a waiting list to receive a U visa when visas again become available. USCIS reminds petitioners and qualifying family members that they must continue to meet eligibility requirements at the time the U visa is ultimately issued.

In recent correspondence from at least one of the regional services centers, USCIS acknowledges that U visa applicants with approvable applications will need some sort of relief, but what that relief will be is still under discussion. The Vermont Service Center indicated that it may issue conditional approvals to those applications processed after the cap was reached and such applicants could apply for work authorization. That service center is also contemplating issuing deferred action until visas become available. Those impacted should consult with their immigration attorney regarding what options may be available to them.

New USCIS “Parole in Place” Policy for Immediate Relatives of Military Members Also Paves the Way for Green Cards

December 27th, 2013

In mid-November, USCIS announced a new policy that permits eligible spouses, children, and parents of certain members of the U.S. armed forces – active duty military, certain reserves, and certain veterans – to apply for “parole in place” (PIP), a discretionary grant by USCIS that allows those who are physically present in the U.S. without inspection or admission to have their status regularized for the duration of the parole in place. Once granted PIP, the immediate relative may be eligible to adjust status to a lawful permanent resident.

The parole authority of USCIS is most frequently used to permit a foreign national who is outside the United States to come into U.S. territory for urgent humanitarian reasons or significant public benefit. But the parole authority for those already in the country has been recognized since 1998.

PIP is one of a number of initiatives that USCIS has launched in partnership with the Department of Defense to assist military members, veterans, and their families to apply for special immigration services and benefits. Finding that military members face stress and anxiety about their family members’ immigration status, which impacts their combat readiness, USCIS determined that PIP would be an appropriate relief measure for immediate family members. To be eligible, the applicant must have a qualifying relationship with the military member and must not have a criminal conviction or other serious adverse factors. USCIS will authorize PIP in one-year increments, with extensions as appropriate.

 

Most significantly, though, the grant of PIP will pave the way for family members who entered the U.S. without inspection to have an adjustment of status application filed on their behalf if they are otherwise eligible. The grant of PIP cures the problem that an applicant who entered without inspection is not eligible to adjust status, by permitting that person to fulfill the statutory requirement that he or she was “admitted or paroled” into the country.

Holiday Travel and Foreign Nationals: Review Your Documents Now

December 20th, 2013

Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their re-entry into the U.S. is as seamless as possible. Depending on an individual’s current status and whether he or she is “in process” for another status, different documentation may be required upon return to the United States.  For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Even travelers on the Visa Waiver Program should ensure that their ESTA authorization is still valid; if re-authorization is required and the individual is denied and a visa becomes required for re-entry, sufficient time will be necessary for that individual to make an application.

Foreign nationals planning to travel outside the United States within the next few weeks and who have questions about their documents are encouraged to contact our office.

News In Brief: Iraqi Special Immigrant Visa Program Extended; Global Entry Expanded to Korea, Germany, Qatar, and the UK; Conrad Waiver Applications Now Taking Six Weeks at DOS; International Visitors to the U.S. Increases in 2013

November 29th, 2013

The following additional items may be of interest to our readers:

Iraqi Special Immigrant Visa Program Extended: President Obama signed into a law a bill extending the Special Immigrant Visa program for Iraqi nationals who worked for or on behalf of the U.S. government. USCIS may now approve an additional 2,000 cases, as long as the initial applications to the DOS Chief of Mission in Iraq are made by December 31, 2013.  The program was set to expire on September 30, 2013.

Global Entry Expanded to Korea, Germany, Qatar, and the UK: CBP announced that the Global Entry international trusted traveler program has been expanded to include certain citizens of the Republic of Korea, the Federal Republic of Germany, the State of Qatar, and the United Kingdom. Global Entry allows pre-approved, low-risk participants expedited entry into the United States using Global Entry kiosks located at designated airports.

Conrad Waiver Applications Now Taking Six Weeks at DOS:  J-1 waiver applications for clinical physicians through the Department of State’s Waiver Review Division are currently taking approximately six weeks, about two to three weeks longer than normal. Clients are advised to prepare accordingly.

International Visitors to the U.S. Increases in 2013: The Commerce Department announced that for the first three months of 2013, international visits (15 million) were up six percent, with more than a 10 percent increase in March alone. Forty-one percent of overseas visitors arrived at three ports of entry, Miami, New York and Los Angeles. The top countries of origin for such visits are Canada (up 11 percent), Mexico (+5%), Japan (+7%), the United Kingdom (+2%), and Germany (+4%). Increasing international tourism to the U.S. was part of President Obama’s 2010 initiative to improve the economy.

 

DHS and DOS to Institute New Policy Relating to False Claims to U.S. Citizenship

November 22nd, 2013

In 1996, a provision was added to the immigration laws that expanded the scope of those provisions that made an intending immigrant inadmissible and barred adjustment of status if the individual made false claims to U.S. citizenship. Previously, such claims must have been made to procure a specific benefit under the immigration laws and the fraud or material misrepresentation must have been made to a U.S. government official. After implementation of the 1996 law, however, the bar to admissibility and adjustment applied to anyone who falsely claims U.S. citizenship for any purpose or benefit under the immigration laws made to a government official or even a private employer. This new provision, for example, included instances where non-citizen checks off the “citizenship” box on an I-9 form and returns it to an employer. Such individuals who are found inadmissible for having made a false claim to citizenship are permanently inadmissible and are removable. While waivers are available for fraud or material misrepresentation in other contexts, no waivers are available for false claims to citizenship even for the spouse or children of U.S. citizens or lawful permanent residents. Recently, DHS and DOS reviewed the application of this provision and will now apply a new interpretation.

First, under the new interpretation, only a knowingly false claim can support a charge that an individual is inadmissible under this section of law. The individual claiming not to know that the citizenship claim was false has the burden of establishing this affirmative defense by the appropriate standard of proof; for example, applicants for admission or adjustment of status must prove their case “clearly and beyond doubt.” Second, an individual who was under the age of 18 at the time of the false citizenship claim and at that time lacked the capacity to understand and appreciate the nature and consequences of the false claim can also avoid a finding of inadmissibility.

The government’s new interpretation became public through a response to a letter by Senator Reid inquiring about this provision, and appropriate USCIS and DOS adjudicators are being advised of these changes. No precise guidelines however are available.

For years, immigration advocates have been seeking to change the law to limit the ban on admissibility and removability to persons who willfully make false claims to citizenship; advocates have also sought to create a discretionary inadmissibility waiver in the case of an immigrant who is the close relative of a U.S. citizen or lawful permanent resident. While those efforts have not been successful, the new DHS and DOS interpretation, if applied generously, will help those who unwittingly make a mistake.

Paper Immigrant Visa Applications (DS-230) Transition to Electronic Application (Form DS-260)

November 15th, 2013

The Department of State (DOS) is now transitioning to an online immigrant visa application. Immigrant visa applicants will apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and choose their agent online using Form DS-261 (Choice of Address and Agent).

Applicants can access both forms on the Web at https://ceac.state.gov/ceac/. These forms replace the paper DS-230 and DS-3032. Generally, if an applicant’s DS-230 has already been submitted and accepted, the applicant will not need to complete the DS-260 UNLESS instructed to do so by the National Visa Center (NVC) or a consular officer. While all posts now require the DS-260, at this time only selected posts are accepting documents submitted electronically. For the vast majority of posts, where electronic document collection is not yet in effect (even though the DS-260 is in use), original documents must still be sent in paper form to NVC. NVC will forward the documents with the rest of the case file to the post. Original documents will be returned to the applicant after the visa interview.

The following is additional guidance from the DOS on what to expect during this transition:

  • If a case is already documentarily qualified and awaiting scheduling, the case will proceed with the DS-230.
  • If a case is still in the document collection phase and a checklist letter is sent for any reason, even if a DS-230 is on file, you will be instructed to complete Form DS-260.
  • If the NVC has already scheduled the consular interview and sent the case to the consular post with the DS-230, then it will stay a DS-230 case. Applicants will not need to complete the DS-260 unless a consular officer requests it.

Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.

In addition, effective October 7, 2013, all K visa applicants are required to complete the DS-160 Online Nonimmigrant Visa Application. The DS-160 replaces Forms I-156, I-156K and DS-230.  Some exceptions apply to cases filed prior to October 7.

Update on DACA (Deferred Action for Childhood Arrivals)

November 8th, 2013

It’s been more than a year now since eligible individuals brought to the U.S. as young children began requesting “deferred action for childhood arrivals” (DACA) relief.  Of the estimated 1.76 million undocumented immigrants eligible for DACA, about 600,000 have applied. While USCIS has approved the majority of cases filed to date, proving eligibility –amassing the required documentation – remains an issue for some, as well as the anxiety associated with confidentiality and coming out of the shadows.  With respect to the latter issue, undocumented youth must reveal their immigration status, names, and addresses to federal agencies. Concerns regarding disclosing personal information may not be confined to the applicant as these individuals may fear that applying for DACA will somehow lead to negative repercussions for their parents. Other potential applicants may be concerned with identifying employers who have hired them in violation of the law, which becomes particularly important when applicants use work history to establish ongoing presence in the United States. And for others, the application fee of $465 is a deterrent.

A recent report issued by the Center for American Progress (CAP) analyzes the DACA program in terms of how the program is being implemented across the country. The report details which states have been most successful with DACA outreach and implementation; which national origins groups have had the most success; and what role community-based organizations, news and traditional media, and the political context of individual states play in DACA implementation and outreach. The CAP report is available at:

http://www.americanprogress.org/wp-content/uploads/2013/09/DACAReportCC-2-1.pdf

The Brookings Institute also has released a report on the program at:

http://www.brookings.edu/research/reports/2013/08/14-daca-immigration-singer