United States: Immigration Alert - May 2011

This update discusses recent developments in immigration law from the U.S. Departments of Homeland Security and State, and additional related matters.

Department of Homeland Security

DHS ends the National Security Entry-Exist Registration System (NSEERS)

As of 28 April 2011 the Department of Homeland Security (DHS) eliminated the special registration requirements of the National Security Entry-Exit Registration System (NSEERS). Under prior law, nonimmigrant nationals or citizens of the following countries had to comply with special registration requirements: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Nationals or citizens of these countries were required to provide fingerprints, a photograph, and additional information at the U.S. port of entry, as well as to depart the U.S. through designated ports of entry. Over the past six years, DHS has implemented several new automated systems that capture arrival and exit information on nonimmigrant travelers to the United States, including the United States Visitor and Immigrant Status Indicator Technology Program (U.S.-Visit) and the electronic transmission of passenger manifests to U.S. Customs and Border Protection's Advance Passenger Information System (APIS). As a result of these improved data systems, DHS has determined that manually recapturing data when an immigrant is seeking admission to the United States is redundant and no longer provides any increase in security. Therefore, DHS has determined that it is no longer necessary to subject nationals from these countries to special registration procedures, nor to the requirement that they depart the U.S. through specified ports of entry.

USCIS issues Q&A document regarding extension of F-1 and OPT status under the H-1B cap-gap regulations

In its updated questions and answers (Q&A) document, the U.S. Citizenship and Immigration Services (USCIS) stated that eligible F-1 students must request Saturday, 1 October 2011 as their start date in order to qualify for the cap-gap extension. The USCIS also clarified that a student granted a cap-gap extension who elects to travel outside the United States during the extension period will not be able to return in F-1 status. Such students will need to apply for an H-1B visa at a consular post abroad prior to returning.

Under USCIS regulations, the automatic cap-gap extension will begin upon a timely filing of the request for a change of status to H-1B on 1 October. The extension will continue until the H-1B petition adjudication process has been completed. Specifically, if the student's H-1B petition is selected and approved, the student's extension will continue through 30 September unless the petition is withdrawn or revoked. If the student's H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the United States.

Final rule on employment eligibility verification

DHS published the final rule on acceptable employment eligibility verification documents in the 15 April 2011 Federal Register. The final rule will be effective on 16 May 2011. The final rule adopts, without change, all of the regulatory amendments set forth in interim rule, which became effective on 3 April 2009. The interim rule revised the list of documents acceptable for Form I-9, Employment Eligibility Verification. Beginning 3 April 2009, employers were required to use the Form I- 9 (Rev. 02/02/09) containing the revisions based on the interim rule. A subsequent Form I-9 was made available on 7 August, 2009 (Rev. 07/08/09). Employers may continue to use either form.

The new list of acceptable documents is designed to simplify employers' compliance with employment verification requirements. The final rule:

• Requires that all documents presented during the verification process be unexpired;
  
• Eliminates List A identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated Employment Authorization Cards);
  
• Adds to List A foreign passports containing temporary I-551 printed notations on certain machine-readable immigrant visas;
  
• Adds to List A as evidence of identity and employment authorization valid passports for citizens of the Federated States of Micronesia (FSM) and Republic of Marshall Islands (RMI), along with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; and
  
• Makes technical updates.

The Handbook for Employers, instructions for completing the Form I-9 (M-274) was updated on 11 January 2011 and is available on the USCIS website at www.uscis.gov/files/form/m-274.pdf. On 14 April 2011, USCIS also issued questions and answers on the final rule, which are available in the News section at www.uscis.gov.

FY2012 H-1B cap count

As of 6 May 2011, the U.S. Citizenship and Immigration Services (USCIS) had receipted about 10,200 H-1B petitions that are subject to the general cap and, additionally, 7,300 H-1B petitions for foreign nationals with advanced degrees. Currently, the general cap on the H-1B category is 65,000 (with certain visas set aside for nationals of Singapore and Chile), and the first 20,000 petitions filed for foreign nationals with a U.S. master's degree or higher are exempt from the general cap.

USCIS: it is no longer necessary to respond to TARP questions on Form I-129

USCIS has updated its Form I-129 instructions to indicate that it is no longer necessary for employers petitioning for H-1B beneficiaries to answer the question on the Form I-129 Data Collection and Filing Fee Supplement (question 1D in Part A) relating to receipt of funding under the Troubled Asset Relief Program (TARP). The revised instructions further state that the obligations applicable to subject H-1B employers under the Employ American Workers Act (EAWA) ended on 16 February 2011. As such, employers who received TARP funds and who file H-1B petitions requesting start dates after 16 February 2011 are no longer subject to the additional requirements stipulated under the EAWA.

Department of the State

June 2011 Visa Bulletin

The Department of State (DOS) has released its Visa Bulletin outlining the availability of immigrant visa numbers for June 2011.

In the family-based preference categories visa numbers are available as follows:

In the employment-based preference categories, visa numbers remain current and available for all nationalities in the categories of: first preference, fourth preference, certain religious workers, fifth preference, targeted employment areas/regional centers, and 5th Pilot programs. For other categories, visa numbers are available as follows:

Other

Maryland to grant qualifying undocumented students in-state tuition

Maryland's legislature passed a measure in its final session on 11 April, and Governor Martin O'Malley signed the measure on 10 May, that will extend in-state tuition to undocumented immigrant students who meet certain criteria. To qualify, the undocumented immigrants must have attended Maryland high schools for at least three years and their families must pay state taxes. Under the measure, the students could pay in-state tuition rates at community colleges for two years, at which time the students could transfer to a four-year college and retain the in-state rate. Maryland became the 11th state in the U.S. to grant such rights to undocumented immigrants, but opponents have already began collecting signatures to put the measure on the 2012 ballot.

Department of Commerce issues advisory opinion on staffing companies' deemed export compliance obligations

On 8 April 2011, the Department of Commerce Bureau of Industry and Security (BIS) responded to an advisory opinion request regarding the compliance obligations of employee staffing companies with respect to deemed exports. The request addressed issues relating to the responsibility of parties in a deemed export occurring in the context of work that foreign nationals perform at a third-party client site pursuant to a contract between a staffing company and a third-party client. In this scenario, the staffing company has control over the employment of the foreign national, but does not have control over the technology or source code that is provided to the foreign national by the third-party client. BIS confirmed that, in this scenario, the third party client would be responsible for obtaining any required authorization from BIS for the deemed export of technology or source code subject to the EAR to the foreign national, because it is the third party client that is making the release of such information to the foreign national and is therefore the exporter.

Social Security number no-matches and DOJ guidance

A Social Security Association (SSA) no-match letter is a written notice issued by the SSA to an employer advising that the name or Social Security Number (SSN) of an employee does not match a name or SSN combination reflected in SSA's records. Such a no-match does not mean an employee is not authorized to work, as there are many reasons for the issuance of such a letter. For instance, a no-match can be caused by: an unreported name change due to marriage, divorce or naturalization; input errors by SSA staff; reporting errors by an employer or employee; identity theft; errors in reporting hyphenated or multiple surnames; or fraud.

The DOJ has issued several informative bulletins on mismatched name and social security numbers. These bulletins give information to employees on how to respond to a no-match:

• Employees should always double-check their name and SSN because the no-matches can often result from administrative errors.
  
• If there is a no-match or other error in a Social Security card, an SSA representative can review it with the employee.

The bulletins also give employees advice on how to deal with employers in a no-match situation:

• Employees should request notice from their employer of any reported no-match, an opportunity to review and correct the errors in the employer's records, continue employment while resolving the errors, and a period of time to resolve the no-match with the SSA.
• Employees should also call OSC's hotline if an employer attempts to immediately reverify an employee's employment eligibility through a new I-9 solely because of a no-match notice, if the employer terminates or attempts to take other adverse action against the employee based on a no-match notice, or if the employer fails to provide a reasonable period of time for the employee to resolve the no-match issue or follows different procedures for different classes of employees based on national origin.

The bulletins also provide information for employers as follows:

• Employers should check a reported no-match against their personnel records, should inform the employee of the no-match notice, should advise the employee to contact SSA to correct its records and give the employee a reasonable period of time to do so, and should follow the same procedures for all employees regardless of citizenship status.
  
• Employers should not assume a reported no-match conveys information on an employee's immigration status, should not use a no-match notice to terminate or take adverse action against an employee, should not require the employee to provide specific documents to address the no-match, and should not reverify the employee's employment eligibility through a new I-9.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.