E-Verify Implements TNC Enhancement and Proposes New Features to Significantly Expand Program Functionality

Posted in E-Verify

On July 1, 2015, E-Verify formally implemented its Tentative Non-Confirmation (TNC) E-Mail Notification enhancement, which permits E-Verify to directly notify employees when a TNC is issued during the employment verification process. Prior to the introduction of this feature, only employers were alerted to TNCs issued by the system.

Specifically, employees who enter a valid e-mail address in Section 1 of the Form I-9 and receive a TNC during the employment verification process will be contacted directly by federal agencies in the event of a data mismatch between the information noted on the Form I-9 and the data found in federal government databases. Importantly, employers are advised to remember that the e-email field on the Form I-9 is entirely optional. In addition, employees may elect to record any valid e-mail address of their choosing, including a work-based address. Employers will continue to be notified when a TNC occurs and will retain the obligation to notify employees accordingly, even if employees are also directly notified via the email address provided on the Form I-9.

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U.S. Department of Labor Unveils Plans to Begin Charging User Fees

Posted in Department of Labor Immigration Compliance

As a result of extensive deliberations spanning over the course of several years, the Department of Labor (DOL) is closing in on making major changes to the labor certification process, including charging user fees for PERM applications.  At present, the electronic PERM process – an initial step in many employment-based permanent residence cases – does not require fees. According to DOL representatives, this is about to change.  At two separate events earlier this month – the Council for Global Immigration Symposium as well as at the American Immigration Lawyers’ Association Annual Conference – representatives of the DOL laid out DOL’s goals to improve and modernize the electronic labor certification system for PERM, H-2A, and H-2B, as well as for Labor Condition Applications which are adjudicated by DOL in connection with H-1B petitions.  William Thompson, DOL Administrator, addressed the agency’s intention to charge fees to modernize the system by allowing DOL to recruit additional adjudicators, IT specialists, as well as review the agency’s current systems and current outdated and costly PERM requirements.

DOL Representatives reported that the steady rise of filed applications (the agency reported a 77% increase in applications in the past 5 years), as well as a decrease in resources and the use of outdated systems is responsible for the heavy backlogs.  While charging fees would serve as a big change with respect to the processes themselves, as well cause an overall increase in the cost to employers, DOL assured stakeholders that the fees would assist in markedly improving and expediting the system, and in turn lowering the total expenditures for employers as the improvements are implemented.  Specifically, the DOL representatives unveiled plans for DOL for the following improvements to be made with the help of the fee-based model:

  • Expedited processing for an additional fee.
  • Modernization of the recruitment practices currently required under the labor certification processes by allowing employers to use less costly and burdensome options for the mandated recruitment.
  • Providing stakeholders with the ability to address and correct technical errors.  At this time, there is no way to correct any errors on the application form subsequent to submission, including typographical errors, which leads to denials after long processing periods and the subsequent expenditure of additional time and fees to restart the process.  Modernizing the IT aspects of the process will allow stakeholders to go in and make corrections to technical errors, thereby allowing the agency to take steps toward preventing denials based on non-substantive grounds.

The agency plans on starting to organize the infrastructure for collecting fees in 2016, with the actual fee collection starting sometime in 2017.  We will continue to monitor and provide updates regarding this important change

TPS extension for Liberia, Guinea, and Sierra Leone

Posted in Department of Homeland Security, TPS

As published in the Federal Register today, the initial registration period for Temporary Protected Status (TPS) designation was extended for Guinea, Liberia, and Sierra Leone nationals currently living in the United States.  Specifically, the initial registration period previously ran from November 21, 2014 to May 20, 2015; however, through the Federal Register notice, the registration period is now extended for an additional 90 days, from May 21, 2015 to August 18, 2015.  This action was taken after the Secretary of Homeland Security, Jeh Johnson, determined that affected individuals required more time to submit their applications.  Individuals who submitted applications after the May 20, 2015 deadline may now resubmit their complete applications by August 18, 2015.

Individuals who are granted TPS benefits cannot be removed from the United States on grounds that the U.S. government has determined that conditions in their home country are unsafe.  Individuals holding TPS may make a separate application to obtain an employment authorization document (EAD) to work in the United States, and they obtain travel authorization to travel outside the United States.  The granting of TPS does not, however, result in or lead to permanent resident status.  Individuals with a criminal background or who pose a threat to national security are not eligible for TPS.

I-9 Alert: Temporary Protected Status (TPS) for Nepal Announced

Posted in Department of Homeland Security, TPS

Department of Homeland Security (DHS) announced yesterday that it was designating Temporary Protected Status (TPS) for Nepalese nationals currently living in the United States for an 18-month period.  Nepal’s TPS designation is effective from June 24, 2015 to December 24, 2016.  DHS took this action after Secretary of Homeland Security Jeh Johnson determined the conditions in Nepal following the earthquake that hit the country on April 25, 2015 posed a substantial threat to living conditions in the country.  Employers should alert all company representatives responsible for the completion of I-9 forms about this development.

Temporary Protected Status

A country can be designated for TPS due to temporary conditions in the country that prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.  Individuals granted TPS benefits are not removable from the United States, can obtain an employment authorization document (EAD) to work in the United States, and may be granted travel authorization to travel outside the United States.  The granting of TPS does not, however, result in or lead to permanent resident status.

Individuals who want to apply for Nepal’s TPS designation must submit an application during the 180-day registration period, which runs from June 24, 2015 to December 24, 2016.  During this period, individuals who wish to work and/or travel must apply for an EAD and/or a travel document through U.S. Citizenship and Immigration Services (USCIS).  Further information is available in the Federal Register.

I-9 Alert: Department of Justice Settles Immigration Discrimination Claims with Three Memphis Area Staffing Firms

Posted in Department of Justice, Employment Verification, Form I-9, Immigration Law, Workplace Discrimination

The U.S. Department of Justice (DOJ) recently entered into a settlement agreement with three staffing companies in the Memphis, Tennessee area. DOJ’s investigation discovered that each of the companies rejected the employment of two qualified individuals based on them being born in Puerto Rico. Specifically, the employers refused to accept each individual’s valid Puerto Rican birth certificates, mistakenly believing that Puerto Rico is a foreign country, and they engaged in document abuse by requesting each individual’s U.S. naturalization certificates to evidence their U.S. citizenship status. Puerto Rico is a U.S territory, and those born in Puerto Rico acquire U.S. citizenship at birth. The Immigration and Nationality Act (INA) prohibits discrimination in hiring based on perceived or actual citizenship status, as well as placing additional documentary burdens upon an individual based on these criteria. Pursuant to the terms of the settlement agreement, the staffing companies agreed to pay lost wages as well as civil penalties. The companies also agreed to be subject to monitoring of their employment verification practices by the DOJ for two years, which is standard practice in these types of settlements with employers.

Within the DOJ, the Office of Special Counsel for Immigration-Related Unfair Employment Practices is responsible for the enforcement of the anti-discrimination provisions in the INA. The INA prohibits, among other things, discrimination in recruitment, hiring, and termination based on citizenship and national origin. As government enforcement of anti-discrimination and other compliance-related provisions has risen significantly over the last two to three years, employers are advised to conduct regular trainings with Human Resources personnel to ensure compliant employment verification practices. Employers are reminded that it is unlawful to ask an individual for specific documentation when verifying his or her employment eligibility for I-9 purposes. Should an individual ask what documents he or she must present when completing the I-9 form, employers shouldn’t indicate a preference and instead provide the individual with a copy of the List of Acceptable Documents on the back of the I-9 form.

Some Improvement, But Frustrating Visa Delays Continue

Posted in U.S. Department of State ("DOS"), Visas

In continuation of our reports from last week (June 15, 2015 and June 17, 2015) the State Department describes some progress on the worldwide visa issuance delays that have and are ruining long-planned vacations, athletic events and family reunions for travelers trying to come to the United States.

The Bureau of Consulate Affairs says it has rebuilt the database responsible for the shutdown and is currently testing it. While the State Department reports that 39 U.S. consulates and embassies are now issuing visas – we have included the list of operating consulates and embassies below – because biometrics data processing is still not operational, the individual embassies and consulates still cannot issue visas.

For example, while London appears on the list of operating consulates and embassies, London’s website reports that because full biometric data processing is not restored, it is unable to print most nonimmigrant visas approved on or after June 9. Many individuals who applied for a visa at the Embassy in London between June 9 and 19 and whose application was approved are still waiting for the Embassy to return their passports containing their new visa stamp.

Individuals who are planning to apply for visas or individuals with pending visa applications should check the website of the nearest U.S. embassy for up-to-date messages about visa processing and interview availability. The State Department says many embassies and consulates are rescheduling interviews starting this week and that it plans to have all consulates and embassies up and running by the end of this week.

The State Department says it issued more than 45,000 visas yesterday, 15,000 of which were issued by the Embassy in Beijing. There is a large backlog of applications, the State Department says, but Consular Officers will work over the weekend to clear it. Continue Reading

EUROPE: Russian Nationals Will Be Able To Secure Schengen (EU) Visas – But Biometrics Required

Posted in Foreign Workforce, Global Immigration, Visas

Soren Liborius, press secretary of the European Union Delegation in Russia, confirmed in a recent interview that the Schengen Visa Information System (VIS) will be launched in Russia on September 14, 2015. VIS allows Schengen States to exchange visa data and connects consulates in non-EU countries and all external border crossing points of Schengen States; it is used to process traveler data and decisions related to short-stay visas to visit, or transit through, the Schengen Area. VIS has been successfully operating in a number of regions ranging from North Africa and the Middle East to across the pond in the Americas since as early as 2011.

The move to bring Russia into the fold has been surrounded by some controversy as Russian applicants for Schengen visas will be required to submit to fingerprinting. Some have questioned whether such requirement is politically motivated, linking it to the ongoing political struggles and attendant sanctions imposed on Russia by the European Union. However, Liborius has denied such allegations and insists that the biometrics requirement is purely technical.

Biometrics data will be stored in VIS for a period of five years. Thus, Russian applicants will only need to be fingerprinted once during that period while submitting their documents. Children under the age of twelve would be exempt from the requirement entirely.

Liborius also added that they do not predict much of an adverse impact on the number of Russian citizens visiting the Schengen Area as a result of the requirement, citing the fact that the system is in force in many countries and has as its primary objective the simplification of the visa issuance process. This development comes during a time when many countries are modernizing their visa processing and systems, often storing personal identifying data.

Greenberg Traurig Attorneys Attend the 2015 AILA Annual Conference in Washington, D.C.

Posted in Events

AILA’s Annual Conference is one of the largest annual gatherings for the immigration law community with over 145 substantive sessions and thousands of attendees.  As with every year, our Greenberg Traurig team takes the opportunity to hear about important updates on immigration law and policy from government participants and immigration experts.  Here’s some of the lawyers and business staff on our team who attended:

Greenberg Traurig attorneys

Greenberg Traurig Attorneys and Business Staff (from left to right) Shaun Staller, Jennifer Blloshmi, Nataliya Rymer, Jennifer Hermansky, Ayanna London, Sylvia Sobczyk, Diana Prak, Nataliya Dominguez, Pamela Mak, and Cory Richards attend this year’s AILA conference.


Summary of Checking in with Charlie: July 2015 Visa Bulletin Edition

Posted in EB-5 Program, Visa Bulletin, Visas

The July 2015 Visa Bulletin has been released and, as always, shortly after its release, on June 12, 2015, AILA “checked in” with Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, to obtain his analysis of current trends and future projections for the various immigrant preference categories. The checkup is part of an AILA monthly series designed to keep members informed of Visa Bulletin progress and projections. Below are highlights of Charlie’s predictions based on the July 2015 Visa Bulletin:

Employment Based:

  • EB-1 & EB-2:
    • Charlie anticipates the worldwide sub-category to remain current for the near future. There was some movement in the EB-2 category for China, which advanced four months. Charlie anticipates continuing forward movement for EB-2 China; however, he believes the pace will decrease through the fiscal year. Due to forward movement in EB-2 India earlier this year, Charlie does not anticipate much forward movement throughout the fiscal year. Specifically, he states unless there is a significant decline in EB-2 worldwide demand, we should not anticipate any forward movement in EB-2 India for the rest of this fiscal year.
  • EB-3:
    • The EB-3 category for India advanced by a few days; and the EB-3 category for “All Other Countries” advanced a month and a half. Charlie anticipates EB-3 worldwide “to reach the summer of 2015 by the end of this fiscal year and expects that the cut-off date will hold steady for some time.” Charlie expects the EB-3 China cut-off date, April 1, 2015, to remain stable through the rest of the fiscal year. He anticipates that EB-3 India may advance by one to two weeks and EB-3 Mexico will continue to follow EB-3 worldwide. Charlie states that one of the most dramatic actions for the July Visa Bulletin is that the EB-3 Philippines and “other worker” categories will become unavailable, and will likely remain so through this fiscal year.
  • EB-4:
    • Charlie states that EB-4 has been undergoing a much higher demand than usual. He further states that he may need to establish a cut-off date in September for up to five countries: Mexico, Guatemala, El Salvador, Honduras, and India. If this is necessary, he states that it will likely be announced in the August visa bulletin.
  • EB-5:
    • The July Visa Bulletin shows that EB-5 advancing by four months for mainland born Chinese, from May 1, 2013 to September 1, 2013. Charlie anticipates that EB-5 will continue to advance and likely reach November 2010 by the end of the fiscal year.

Family Based:

  • In the July 2015 Visa Bulletin, all family based categories have been advancing steadily. Specifically, FB-1, FB-2B and FB-3 advanced a month; FB-2A advanced three to six weeks; and FB-4 advanced six weeks. Charlie conveys that this forward progression is due to the low number of applicants seeking to finalize action on their cases.

USCIS Announces Discontinuation of ELIS

Posted in Immigration Law, USCIS, Visas

On June 16, 2015, USCIS announced the suspension of the USCIS Electronic Immigration System (ELIS) for Forms I-539, Application to Extend/Change Nonimmigrant Status and Forms I-526, Immigrant Petition by Alien Entrepreneur. Due to challenges with ELIS and in an effort to improve it, effective June 15, 2015, USCIS will no longer accept electronically filed forms for either category. Additionally, USCIS ELIS will no longer support the Regional Center Document Library.

This change will not affect petitioners/applicants with pending cases in the system as of June 15, 2015. Filings submitted after this date must be filed in paper format. The following procedures will apply to pending electronic applications:

  • Attorneys and customers who already started an electronic Form I-539 or I-526 on or before June 15, 2015 will have 30 days from the day they commenced the application to complete it and submit it electronically. If the application is not completed within this period, a paper application will be required.
  • Applications previously submitted through ELIS will continue to process and attorneys and customers will maintain continuous access to their electronic accounts.
  • Applicants who filed Form I-526 electronically will retain access to ELIS to review existing documents uploaded by the document library manager, however the document library manager will not be able to create new document libraries. Applicants will be able to respond to RFEs and check case status online for electronically filed applications.
  • Regional Centers will need to file documents in paper format in support of Form I-526 or Form I-924 applications.

For further information regarding the transition from USCIS ELIS to paper filed applications, please visit the USCIS ELIS website.