Legal Updates
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Fall 2007
Recent Developments in Immigration Law: Part 1 (cont...)
Social Security "No-Match" Letters and I-9 Enforcement
The Social Security Administration ("SSA") sends annual "no-match" letters to U.S. employers where the SSA records do not match the employers’ records of employees’ Social Security numbers. No-match letters do not signify that an employee does not have employment authorization; rather, they are simply requests by the SSA for corrections. Employers must pursue corrective actions when they receive SSA no-match letters, but they should not treat the no-match letter as notification of an immigration violation.
The SSA cannot currently fine employers for providing incorrect Social Security number data or for not responding to an SSA no-match letter. Th e SSA can, however, provide the no-match information to the Internal Revenue Service ("IRS"). The IRS, in turn, can review, investigate, audit, and fine an employer based on information received from SSA.
The Immigration and Customs Enforcement of DHS ("ICE") recently announced a policy of collaborative enforcement of immigration laws, which is to include cooperation of the SSA, the IRS, and the DOL. Further, the DHS published new rules setting forth an employer’s responsibilities upon the receipt of an SSA no-match letter. The rule amends the definition of "knowing" employment of unauthorized workers under DHS regulations. The new rule lists additional examples of when an employer has constructive knowledge that an employee is unauthorized to work: (1) failure to take reasonable steps after receiving a no-match letter from the DHS and (2) failure to take reasonable steps after receiving a no-match letter from SSA. Employers who take "reasonable steps" after receiving a nomatch letter can use the "safe harbor" provisions of the rules. Thus, where an employer takes reasonable steps to respond to a no-match letter, even if the employee continues employment, and the employer later finds out that the employee was an unauthorized alien, the DHS will not penalize the employer for constructive knowledge of unauthorized employment.
It should be noted that the new DHS regulations were originally scheduled to go into effect on September 14, 2007. On August 31, 2007, a U.S. District Court Judge in the Northern District of California issued a nationwide temporary restraining order enjoining the federal government from implementing the final rule, including sending out the initial wave of no-match letters. A hearing on the issue is presently scheduled for October 1, 2007.
The Winter Issue of Michigan International Laywer will include the updates concerning these regulations and their enforcement, as well as an overview of employment verification and form I-9 compliance under IRCA and IIRAIRA and a detailed discussion of the new DHS regulations and "no-match letters" including the issues of "reasonable steps," review of employer records, contacting the employee, and unresolved discrepancies.
Impromptu USCIS Site Visits to Verify Employer H-1B and L-1 Compliance
Michigan immigration attorneys have reported that they are noticing an increased number of requests from local USCIS officers, such as those working out of the Detroit District Office, to conduct "site visits" with employers, where the officers ask questions regarding a specifi c H-1B or L-1 petition.3 The Detroit District Office has recently confirmed that these visits are indeed taking place and that employers and/or beneficiaries (H-1B or L-1 employees) are being interviewed as part of the national benefit fraud assessments project, which involves a random sampling of cases that measures the integrity of nonimmigrant petitions that have been filed. The purpose of such an interview is to verify the information contained in the petition and supporting documentation. The sampling includes both cases that have been completed and those that remain pending.
The USCIS Enacts Significant Increases in Filing Fees
Th is summer, the USCIS significantly raised the filing fees for numerous petitions and applications. According to the USCIS, the fee increases were necessary to improve service delivery and customer service, enhance the security and integrity of the immigration system, and modernize its business infrastructure for the 21st Century. The fee increases became effective on July 31, 2007.
According to the USCIS, the increased revenue from the new fee structure will enable a 20 percent reduction in average application processing times by the end of fiscal year 2009, and it will cut processing times by the end of fiscal year 2008 for four key application types that represent a third of all applications filed: Form I-90 (application to renew or replace a Green Card), Form I-140 (Immigrant Worker Petition), Form I-485 (Application to Register Permanent Residence or Adjust Status), and Form N-400 (Application for Naturalization).
The USCIS continues its current procedures of waiving fees for various classes of applicants, including individuals filing for asylum and members of the U.S. Armed Forces filing for naturalization. The new fee structure also exempts applicants for T nonimmigrant status (Victims of Human Trafficking) or for status under the Violence Against Women Act from paying certain fees. Th e government has also clarified the waiver process in order to limit fee waivers to certain specific situations and application types, including consideration of one’s inability to pay. The USCIS has noted that, since it is funded by application fees, "a fee waiver transfers the cost to all other fee-paying applicants."
The USCIS plans to review fees every two years in order to ensure that it is recovering the full cost of processing immigration benefit petitions and applications. It also asserts that future fee reviews will combine assumptions from recent experiences and will incorporate productivity gains resulting from the modernization of USCIS operations. It is therefore possible, according to the USCIS, that some fees may actually decrease in the future.
Miscellaneous Topics of Interest in 2007
New USCIS Website in 2007
Th e USCIS has recently re-vamped its website.4 Several commentators have pointed out that the new website seems to be incomplete in numerous areas. One of the problem areas that has been described is the difficulty in locating pertinent information about the local Detroit District Office, which provides various services to both foreign nationals who are in the United States for a temporary stay, as well as those who seek to remain permanently in the United States.
The information is actually still accessible from the new USCIS website; however, the casual viewer of the website might not necessarily know how to navigate through the new government links to locate the information. For example, the new USCIS website appears to have removed the current list of designated civil surgeons5 in the Michigan area. Th e Michigan civil surgeon list is still available on-line and may be accessed by selecting "Services and Benefits" on the main USCIS website, then "Immigration Medical Examinations," then "Civil Surgeon Locator."
The new USCIS website also prominently features the Offi ce of Business Liaison ("OBL"), which may be found by selecting the "For Employers" link on the left-hand side of the main page. The OBL’s primary function is to educate the United States business community on employment, business, investment, training, and employer education-related immigration issues. The OBL also publishes Employer Information Bulletins on its website.
2009 Diversity Visa Lottery Program
The 2009 Diversity Visa Lottery ("DV-2009") will be held between October 3, 2007, and December 2, 2007. DV-2009, like its annual predecessor programs, is a lottery that makes Permanent Residence Visas (i.e., Green Cards) available to people who meet the simple, but strict, eligibility requirements. The DV-2009 applicant must have either a high school education or its equivalent (defined as the successful completion of a 12-year course of elementary and secondary education) or, within the past five years, have two years of work experience in an occupation that requires at least two years training or experience.
The Diversity Immigrant Visa Program was created by section 203(c) of the Immigration Act of 1990, which makes available up to 55,000 permanent resident visas each year by random selection through a Diversity Visa lottery. 6 Th e DV-2008 visas were apportioned among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and no visas going to citizens of countries that have sent more than 50,000 immigrants to the United States in the past five years. These countries include: Brazil, Canada, China, Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, Russia, South Korea, United Kingdom [except Northern Ireland], and Vietnam.
As with prior Diversity Lottery programs, applications for the DV-2009 program will be selected at random after the close of the registration period. Nevertheless, the DOS "continues to encourage persons who wish to enter the [lottery] to submit their information early in the two-month registration period." Entries received before or after the DV-2009 dates will be disqualified. Only one entry for each applicant may be submitted during the registration period. Submission of more than one entry will disqualify the person.
As in the last few years, only electronic registration is permitted; paper entries and mail-in requests for DV-2009 are not accepted. In addition, persons submitting entries to DV-2009 will receive a notice of receipt containing their name, date of birth, country of chargeability, and a time/date stamp. Th ere is no fee for the entry. Applicants will be selected at random by computer from among all qualified entries. Those selected should expect to receive notification and additional instructions by mail between May and July 2008. DV-2009 visas will be issued between October 1, 2008, and September 30, 2009.
Those who choose to enter the DV-2009 Program should obtain a copy of the instructions from the DOS Bureau of Consular Aff airs web site. The instructions set forth, in detail, the information that is required to appear on and to be submitted with the DV-2009 application, as well as the specific filing and digital photograph requirements. The DOS has kept available its instructions for the 2008 Diversity Visa Lottery Program for convenience of the applicants and has promised to provide the information and instructions for the DV-2009 as soon as possible. The DV-2009 instructions may be found at http://www.dvlottery.state.gov.