By Dawn M. Lurie and Greg Morano

In mid-April, United States Citizenship and Immigration Services (USCIS) introduced long awaited enhancements to the program as part of the new “modernized E-Verify system”. In fact, the overhaul is enormous in scope, the new system is entirely separate from the previous itineration of E-Verify. From a data storage location shift to reinforcement of the old infrastructure, the bones of the system are being reinforced.  Employers will continue to maintain access to their old data while being able to open cases in the new system. The updates demonstrate USCIS’ continued focus on improving the system, which makes perfect sense in the face of a possible, nationwide, E-Verify mandate.

What is E-Verify

E-Verify is an internet based system that compares information from an employee’s Form I-9 to the Department of Homeland Security (DHS) and Social Security Administration (SSA) records to confirm employment eligibility. Continuously improving, but not perfect, the system struggles with cracks in its armor especially when it comes to ensuring identity. However, one of the key benefits of E-Verify is that employers are provided a rebuttable presumption that there has been no violation of the statute, with regard to the knowing hiring of an unauthorized worker, if the employee’s information has been confirmed by the system. This is important in the context of a Form I-9 inspection.

Enhanced Usability Features

For many E-Verify users, E-Verify has created a functionality to search cases by last name. USCIS also expanded features in an attempt to lower the number of Tentative Nonconfirmations (TNCs) by improving user friendliness. The system now includes more helper text and added visuals about the data fields and acceptable documents. More importantly, E-Verify will provide real-time feedback on possible errors to allow users to quickly correct data entry errors; once spotted, users can now edit case information without changing pages.

System Streamlining

E-Verify has streamlined its case creation and management to augment the system’s speed and accuracy. In another move to reduce TNCs, E-Verify modernized how it matches employee data to government data, and created an, “Are You Sure?” alert to assist users in identifying any data points that may lead to a TNC. Additionally, the entire TNC process has been streamlined, which may require training and process changes. USCIS combined Department of Homeland Security (DHS) and Social Security Administration (SSA) TNCs—E-Verify now sends cases to SSA and DHS simultaneously. If both agencies issue a TNC, the user will see a dual TNC, rather than two separate ones. In turn, the employee will receive a combined SSA and DHS Further Action Notice to respond to the TNC with the employee now having ten days to address both issues at the same time.

 Data Integrity and System Compliance

Companies with concerns regarding the integrity of E-Verify data will be happy to know that this update improves on many areas. If you have become accustomed to seeing all cases in your E-Verify reports, this update administratively closes cases that have not been accessed in 365 days or more. The update also improves photo matching features and now allows for mobile uploads. One change that will require employers to update their E-Verify processes is that users now must enter a reason as to why an employee continues to work after receiving a Final Nonconfirmation (FNC). While E-Verify indicates that the change “allows for better record keeping for FNCs retained by an employer”, companies should carefully consider all FNCs and confer with counsel prior to allowing any individual with a FNC case result to continue to work for pay.

Web Services Participants (electronic I-9 users)

E-Verify participants accessing the system through their own software, or via a vendors’ software, will need to ensure their vendor is updating its electronic I-9 capabilities pursuant to guidance that the USCIS Verification division will likely release in the next few weeks. The new Web Services Interface Control Agreement (ICA) documents the information used to develop and test the software interface. Vendors generally have six months to update their system and test the new ICA scenarios. Companies are urged to ensure their vendor is on top of these changes, has the resources to deal with the changes and will be in compliance in terms of the necessary updates.

Next Steps

Due to the considerable efforts USCIS undertook to start the E-Verify modernization process, growing pains are a guarantee. Some employers have already identified issues with the new system, including concerns over identifying the three day period in which to complete E-Verify timely. USCIS is currently providing employers who have an issue completing a case in the new system an extra 10 business days to submit it. To take advantage of this, USCIS requests that users contact E-Verify at enrmod-projectteam@uscis.dhs.gov with “Employer Name – E-Verify Modernization Issues” in the subject line.

Seyfarth will continue to update employers as USCIS pushes updates and work out the kinks in the new system.

Trivia: On May 10, 1877, U.S. President Rutherford B. Hayes had which common piece of technology first installed into the White House?

Where are we this month?

Advancements

Employment

  • Chinese nationals advance approximately one month in the EB-2 and Other Workers categories while Indian nationals see a slightly more significant advancement of 3 months in both the EB-3 and Other Workers categories.
  • Mexican nationals advanced nearly 11 weeks in the EB-4 category.
  • Of particular importance, filing dates for Certain Religious Workers are current for all nationals excluding Mexican, El Salvadorian, Guatemalan, and Honduran nationals while the 5th Non-Regional and Regional Center categories are current for all individuals except Chinese and Vietnamese nationals

Family

  • In most family-based categories, we see advancements of approximately 2-5 weeks, with the exclusion of the F-1 classification for Indian, Chinese, and Worldwide nationals, which are not subject to any changes on this month’s bulletin, as well as certain classifications for Mexican and Philippine nationals.
  • In the F-2B and F-4 categories, Philippine nationals advance 6+ weeks. Similarly, Mexican nationals in the F-1 and F-3 classifications advance nearly 10 and 8 weeks, respectively.

Rules of the Road for Immigrant Visa Processing

What is the “Final Action Date”?

The date when USCIS or DOS may adjudicate and issue a final decision on Immigrant Visa applications. You are eligible to file if your priority date is before the posted date.

What is the “Date for Filing Application”?

The date when the I-485 or NVC application may be submitted to the respective agency –  USCIS/DOS. You are eligible to file if your priority date is before the posted date.

Before you act Visit www.uscis.gov/visabulletininfo  for information on whether USCIS has determined that this chart can be used this month for filing applications for adjustment of status with USCIS.

What is a “priority date”?

This date establishes your place in line for receiving an immigration visa petition.  For employment-based petitions with PERM labor certification sponsorship, the priority date is the date the U.S. Department of Labor (DOL) receives the company’s ETA Form 9089. Where PERM sponsorship is not required, the date is set when the I-140, I-526 or I-360 is filed with USCIS. For family-based sponsorships this is set when USCIS receives the Form I-130 petition.

FINAL ACTION: EMPLOYMENT CATEGORIES

*Current priority dates are eligible to file AND be adjudicated

FILING: EMPLOYMENT CATEGORIES

*Current priority dates for this category are eligible to file, but will NOT be adjudicated until the priority date is current chart above

FINAL ACTION: FAMILY CATEGORIES

FILING: FAMILY CATEGORIES

Trivia Answer:  The telephone!

Seyfarth Synopsis: USCIS completes the lottery process and received 190,098 H-1B cap petitions.

On April 12, 2018, United States Citizenship and Immigration Services (USCIS) announced that it received 190,098 H-1B petitions to meet both the Master’s and regular H-1B quotas (or “caps”) for Fiscal Year 2019, which begins on October 1, 2018.  This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master’s cap.  The number of petitions decreased slightly again this year, down from more than 199,000 petitions filed for Fiscal Year 2018.

In addition, USCIS announced that they completed a computer-generated random selection process — the lottery — for all cap-subject filings received from Monday, April 2 through Friday, April 6, 2018 to determine which filings to adjudicate.  USCIS first conducted the lottery process for H-1B petitions subject to the Master’s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master’s degrees or higher degrees.  Any Master’s cap petitions not selected in the Master’s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.  USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.

By Mark Katzoff

The omnibus spending bill signed into law by President Trump on March 23, 2018 included a six month extension of the EB-5 regional center program to September 30. This marks the latest in a series of short-term extensions over the last few years while Congress has attempted to agree upon legislation providing more substantive changes to the EB-5 program in general.

Continue Reading Regional Center Program Extended Six Months

Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week.  Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic.  The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees’ Forms I-9, Employment Eligibility Verifications within 72 hours.  The notices often include a list requesting additional company information and documents as well.

Local HSI offices are keeping ICE’s Deputy Director Thomas Homan’s promise of increasing its activities not just across the nation but more specifically targeting sanctuary cities and states like California.  It is important to note that businesses receiving the NOIs are not all within the service, manufacturing, agriculture, or traditional “infrastructure” sectors. Employers across industries should take a look at their Form I-9s and overall immigration compliance – the time to figure things out is not during the 72 hours after a NOI is issued.

Continue Reading California Continues to Shine Under ICE’s Spotlight

Trivia: Each year, March and which other month end on the same day of the week?

Where are we this month?

Advancements

     Employment

  • Chinese nationals experienced some advances with 9+ weeks in the EB-2 category and 8+ weeks in the EB-3 category.

While the EB-5 category for Regional Center filings is now available for Chinese nationals with a priority date of July 22, 2014, it remains unavailable for all other nationals.  Non-Regional Center filings are current for all with the exception of Chinese nationals where we see a July 22, 2014 priority date.

  • Indian nationals also advance modestly moving forward by 1 week in the EB-2 category and 4 weeks in the EB-3 category.
  • Philippine nationals continue to be current in the EB-2 category with an 8 week advancement in the EB-3 category
  • Of particular importance, filing dates for certain religious workers are now current with a slight backlog for Mexican, El Salvadorian, Guatemalan, and Honduran nationals.

Family

  • For family-based sponsorship, Philippine nationals advance 10+ weeks while all other nationals advance approximately 1+ week in the F-1 category.
  • In all other family-based categories, we continue to see similar modest advancements, with the exclusion of the F-3 classification for Mexican nationals, which is not subject to any changes on this month’s bulletin.

Continue Reading March 2018 Visa Bulletin

By Dawn M. Lurie and Alexander Madrak

True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE’s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No employees or employers were arrested at the time; instead, HSI agents notified businesses that they are being audited and provided seventy-two hours to produce their employees’ Forms I-9, Employment Eligibility Verifications.

The worksite actions follow ICE’s Deputy Director Thomas Homan’s comments that ICE would increase its activities in California after designating itself an official sanctuary state for undocumented immigrants following the passage of AB 450. With Homan’s nomination to be the Director of ICE, these and other comments by Homan indicate ICE may very well follow through on its promises—both that enforcement will increase by “four to five times” this year and that California may bear a disproportionate brunt of the action.

Employers across industries should proactively prioritize addressing immigration compliance by:

  1. conducting careful internal assessments;
  2. conducting Form I-9 audits (with the assistance of competent counsel);
  3. reviewing and/or establishing procedures to ensure employees are prepared to deal with visits from ICE;
  4. creating and updating immigration compliance polices; and,
  5. providing training and resources in order to ensure the Form I-9 process is captured correctly.

Prioritizing immigration compliance today will prevent problems and minimize exposure tomorrow.

Trivia: Who was the only U.S. President to serve in two nonconsecutive terms?

Where are we this month?

Advancements

  • Chinese nationals experienced some advances with 7+ weeks in the EB-2 category and 22 weeks in the EB-3 category.

Of note is the EB-5 category for Regional Center filings remains unavailable and for direct investment there is no movement in the Final Action Dates; and moving backward 4 weeks to September 1, 2014 for Date of Filing Application cut off.

  • Indian nationals also advance modestly with 2 weeks in the EB-2 category and 4 weeks in EB-3.
  • Philippine nationals continue to be current in the EB-2 category with a 2 week advancement in the EB-3 category

Continue Reading February 2018 Visa Bulletin

By: Dawn M. Lurie, Alexander Madrak and Greg Morano*

United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.

What’s the Latest on TPS?

While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”

What Do Employers Need to Know?

Continue Reading Auto Extension Influx: Automatic Extension of El Salvador TPS EADs

  1. By: Mahsa Aliaskari

Update: At midnight the federal government shut down.  We will keep employers updated as details of immigration related closings and the negotiations in Congress become available.

Seyfarth Synopsis: As we wait to hear the fate of yet another temporary extension to continue funding the government after midnight on Saturday January 20th – employers should know how a shutdown may impact processing of immigration petitions and immigration programs.

Continue Reading Déjà vu – Government Shutdown and Impacts on Immigration