The H-2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. This type of visa is commonly used for entertainers on a tour, film workers, seasonal landscapers, seafood industry workers, miners.

USCIS's Proposal to Eliminate Concurrent Filing of I-140/I-485 Appears on the Unified Agenda

Issued semi-annually, the Unified Agenda notifies the public what regulations each federal agency is considering and the estimated timeline on the regulations. Recently, it came to many people's attention that the USCIS included a regulation titled "Halting Concurrent Filing of Form I-140 Immigrant Petition with a Form I-485 Application" with a timetable indicating publication of a proposed rule in June 2008. However, considering USCIS' past pattern of practice, this regulation is not likely to happen in the near future. This item has been listed on the Unified Agenda since December 2006. At that time, the projected publication date was March 2007.

USCIS Announces Enhancements to E-Verify Program

USCIS has implemented enhancements to the E-Verify system to include naturalization data, and real time arrival data from the Integrated Border Inspection System. With these updates, the E-Verify system is now able to confirm citizenship status of naturalized U.S. citizens and immigration status of newly arriving foreign workers.

What is E-Verify?
E-Verify, formerly known as the Basic Pilot Program, is a free and voluntary Internet-based system allowing employers to electronically verify new employees' employment eligibility. The system is administered by the U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify works by comparing the new employee's Form I-9 information to the information in the SSA and the USCIS databases. The verification must take place within three business days of the employee's start date. If the information does not match correctly, the employer will receive a notification from the USCIS, usually within five seconds. The employer should not use E-Verify to check the employment eligibility of an existing employee. If the employer does opt to participate in the program, it must use E-Verify on every new hire regardless of his or her immigration status.

How does it work?

The participating employer enters the new employee's Form I-9 information into the E-Verify web site, receiving one of the three results:

1. "Employment Authorized"
The employee is authorized to work.

2. "SSA Tentative Non-Confirmation"
The SSA database is showing that the employee's name and social security number do not match.

3. "DHS Verification in Progress"
The Department of Homeland Security will respond within 24 hours with either an "Employment Authorized" or "DHS Tentative Non-Confirmation" notice.

If the employee's information results in "Employment Authorized" notice, the employer is required to record the verification number on the Form I-9.

If the employee's information results in "Tentative Non-Confirmation", the employer must immediately provide the employee with information about how to challenge the result. The employee has eight federal government working days to resolve the no-match result with the SSA or the USCIS. The employee may continue to work during that period.

If the employee chooses not to contest the result, the employer may terminate the employee.

What are the responsibilities of the employer?
The employer must enter into a Memorandum of Understanding (MOU) with DHS and SSA that makes explicit the responsibilities of the parties.

E-Verify can only be used to verify new hires' employment eligibility and must be initiated within three business days of the new employee's actual start date.

The E-Verify procedure must be applied to all new hires regardless of their immigration status.

The employer must post a notice at the worksite stating that it is an E-Verify participant and must post other notices supplied by DHS.

If tentative non-confirmation is received, the employer must promptly provide information about how to challenge the result, including a written notice generated by E-Verify.

The employer may not take any action against an employee because he or she contests the information mismatch.

The employer may not terminate an employee until a final non-confirmation is received, unless the employer gains actual knowledge beforehand that the employee does not have employment authorization.

The employer must comply with the anti-discrimination rules under section 274B of the Immigration and Nationality Act.

The employer must safeguard the information provided to and received from E-Verify under subject of criminal penalties.

The employer must allow USCIS and SSA to make periodic visits and allow USCIS and SSA to interview the persons handling the program and employees hired during participation in.

What are the benefits of enrolling in E-Verify?
If the employer receives employment eligibility confirmation from E-Verify, the employer is presumed not to have violated the employer sanctions rules in section 274A of the Immigration and Nationality Act. However, USCIS does not consider participation in E-Verify a "safe harbor" from federal worksite enforcement. Note that some states do consider using E-Verify a safe harbor from the state's worksite enforcement law.

What are the risks associated with participating?
The USCIS and SSA databases E-Verify uses do not meet the standard for accuracy set by Congress.

Foreign-born employees are 30 times more likely to receive a tentative non-confirmation than U.S.-born employees.

Any person posing to be an employer may gain access to E-Verify and information in the USCIS and SSA databases.

Many participating employers have been found to have misused E-Verify.

Although most tentative non-confirmation cases are resolved within the designated time period, there are instances where the resolution takes months and sometimes more than a year. The work-eligible employee whose tentative non-confirmation takes a long time may be out of work after the designated time period even if he or she is making a good faith effort to contest the result.

If the employer chooses to stop using E-Verify, it must continue to participate for 30 days after giving written notice to USCIS that it wishes to discontinue its participation.

The Westat report, which evaluates E-Verify, can be accessed here.

What can employees do if they feel they have been discriminated against?
The Employee may report to the Office of Special Counsel for Immigration Related Unfair Employment Practices at 1-800-237-2515.

What is the current status of E-Verify?
Although it is a voluntary program by federal law, some federal government employers are required to use E-Verify. Several states have also passed legislation mandating employers' participation in E-Verify, and several states are considering similar legislations.

The state of Illinois enacted legislation prohibiting employers from using E-Verify until the system's accuracy improves substantially. DHS has filed a lawsuit against the state of Illinois in response to this legislation.

Conclusion
E-Verify is a pilot program which has been controversial since its inception. Issues relating to E-Verify are fast evolving. We advise you to consult with experts in immigration law and with experts in the relevant state's labor and employment law when you consider participation in the program.

For the beneficiaries whose H-1B petitions are not selected in the H-1B lottery and for those who have not yet submitted H-1B petitions, they may be able to extend their OPT period for additional 17 months if the following conditions are met:

- The F-1 student holds a baccalaureate degree or higher in one of the approved academic majors in the fields of science, technology, engineering, and mathematics ("STEM");

- The student is currently working in a field related to his/her academic major in F-1 OPT status;

- The student is currently employed by an employer who has enrolled in the E-Verify program, an employment eligibility verification system operated by the USCIS; and

- The extension application is filed at least 90 days before the current OPT expiration date.

Note that students, who timely file their applications for extension of employment authorization document for STEM OPT, may continue to work while their applications are pending.

You can review a USCIS Fact Sheet here.

Employers are encouraged to review their current and future staffing needs to identify any workers for whom an H-1B petition should be filed. This may include not only new hires, but also persons who are currently working in F-1 status pursuant to Curricular Practical Training (CPT) or Optional Practical Training (OPT), workers currently in TN or J-1 status, or others. To arrive on Tuesday April 1, 2008, new H-1B petitions must be sent to the USCIS by Fed Ex on Monday March 31, 2008.

Petitions may be filed starting April 1, 2008 for start dates of October 1, 2008 (the beginning of FY2009). Once the quota is reached, Cap-subject H-1B cases will not be accepted by the USCIS until April 1, 2009 for start dates of October 1, 2009.

Note that petitions filed on behalf of current H-1B workers do not count towards the H-1B cap because they have already been counted against a previous year's quota. H-1B Extension of Status Petitions, Change of Employer petitions, and Concurrent H-1B filings will therefore continue to be processed without regard to the cap. This may also be true for H-1B petitions filed on behalf of persons who have held H-1B status at some point in the past 6 years.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiary will be employed at an institution of higher education or related or affiliated nonprofit entity, or at a nonprofit research organization or governmental research organization.

In addition, the first 20,000 H-1B petitions filed on behalf of persons who hold a Master's or higher degree from a U.S. college or university will be exempt from the cap. Last year this special 20,000 exemption was met in early May 2007, however this number is expected to be reached must faster this year. There has been speculation the Master's cap will be met on the first day.

Please contact us immediately if you identify a potential candidate for a new H-1B petition, or if you have questions about the H-1B visa category.

Addie Hogan
FMF Global Law Group
ahogan@fmfgloballaw.com

As early as January 1, 2008, ALL persons, including U.S. citizens, traveling between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda by LAND or SEA (including ferries), may be required to present a valid passport or other documents as determined by the DHS. The deadline for the Land and Sea requirement may change. Advance notice will be given.

The USCIS began accepting H-1B applications on April, 2006. The USCIS has updated its website with the figures for H-1B usage for fiscal year 2007 as of April 28, 2006. As of this date 16, 737 H-1B Petitions have been approved or are currently being adjudicated. This figure, 16,737 counts against the standard H-1B cap. As for the H-1B Petitions that qualify for the exemption from the H-1B numerical limitations, 20,000 for foreign workers with a U.S. earned master's or higher degree; 2,884 cases have been approved or are in the process of adjudication.

Note: Petitions for H-1B workers who have been granted an H-1B visa in the last 6 years, as well as, petitions for current H-1B workers, do not count towards the congressionally mandated H-1B cap. Nor will petitions for J-1 nonimmigrants who are changing status to H-1B and who have obtained waivers of the home country residency requirement through the Conrad program or similar programs. The USCIS will continue to process petitions filed with request to:

]]>en-usFri, 05 May 2006 00:00:00 -0700Fri, 05 May 2006 00:00:00 -0700 Washington, D.C. - U.S. Citizenship and Immigration Services (USCIS) announced today, January 18, 2006, that it has received enough H-1B petitions that qualify for the exemption from the H-1B numerical limitations, 20,000, for foreign workers with a U.S. earned master's or higher degree.

The "final receipt date", determined by the USCIS, for the 20,000 cap exempt H-1B petitions is January 17, 2006. These "final receipt date" petitions, received on January 17, 2006, are subject to a random computer-generated selection process, randomly selecting the exact number of petitions from the days receipts needed to meet the congressionally mandated cap exemption of 20,000.

The earliest date that petitioners may re-submit their H-1B petitions for the 2007 Fiscal Year, for a start date of October 1, 2006, is April 1, 2006.

Note: Petitions for H-1B workers who have been granted an H-1B visa in the last 6 years, as well as, petitions for current H-1B workers, do not count towards the congressionally mandated H-1B cap. USCIS will continue to process petitions filed with request to:

• Extend status;
• Change terms of employment;
• Change employer; and
• Work concurrently in a second H-1B position

• Your rights and responsibilities as a lawful permanent resident;
• Getting settled in the United States;
• Education and Childcare;
• Emergencies and Safety;
• Learning about the United States;
• Becoming a US citizen.

Click on the following link: Immigration Guide

The USCIS will issue a public notice regarding the new photos and applicable deadlines. Please note that the DHS will likely generate new photo requirements at a later date as new facial recognition software is developed.

Upon departure from the U.S., an individual will check out at designated kiosks by scanning their visa or passport and submitting fingerprints for a second time. The exit confirmation will be added to the individual's travel record to demonstrate compliance.

Twenty-seven countries currently participate in the VWP. These include: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. The VWP allows travelers from these countries to enter the U.S. for business (B1) or tourism (B-2) visits for up to 90 days without obtaining a visa.

The CSC is also promising to reduce I-485 processing times to one year by September 30, 2004, but warned that processing times for pending I-140s without a concurrently filed I-485 were likely to suffer. This pilot program applies only to EB-2 I-140s and I-485s filed with the CSC. This pilot program is being conducted at the CSC only.

The second pilot program involves I-90 applications (requesting a new or renewed green card) filed electronically at the Los Angeles District Office only. When an applicant goes to the Los Angeles District Office for biometric collection, the green card will be manufactured and mailed to the applicant immediately. The Los Angeles District Offices computers will be linked to the card manufacturing facility in order to implement this pilot program. Please note I-90 applications cannot be filed electronically for applicants 14 and younger.

For those of you who may not have seen our February 18th Immigration Update, on February 17, 2004, the USCIS announced that the H-1B cap for FY2004 has been reached and that it would no longer accept petitions for new H-1B employment subject to the H-1B cap. Please note that the H-1B cap will not prevent a person who currently possesses H-1B/H-4 status from extending or amending his/her H status or from changing or adding an H employer. In addition, a person who has possessed H status and been counted against the cap during the prior six years also will not be prevented from reacquiring H status in most cases unless he/she has left the United States for more than one year since holding H-1B status. USCIS has implemented the following procedure for the remainder of FY2004:

• USCIS will process all petitions filed for first-time employment received by February 17, 2004.
• USCIS will return all petitions for first-time employment subject to the annual cap received after February 17, 2004.
• Returned petitions will be accompanied by the filing fee.

Petitioners may re-submit their petitions when H-1B visas become available for FY2005. The earliest date a petitioner may file a petition requesting FY2005 H-1B employment with an employment start date of October 1, 2004, is April 1, 2004. Petitions for current H-1B workers do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS also notes that petitions for new H-1B employment are not subject to the annual cap if the alien will be employed at an institution of higher education or a related or affiliated nonprofit entity, or at a nonprofit research organization or a governmental research organization. USCIS will also continue to process H-1B petitions for workers from Singapore and Chile consistent with Public Laws 108-77 and 108-78.

The system uses biometrics, which are physical characteristics unique to each individual. This involves scanning two index fingers and having a digital photograph taken upon entry to the U.S. The purpose is to enhance the security of the the United States by identifying the visitors with visas. Please note, this extra scrutiny does not include those persons who are requesting admission under the visa waiver program.

You can find more information on this program at: www.dhs.gov/us-visit.