Immigration Visa Lawyer Blog

The United States Department of Homeland Security announced it will make changes in the F-1 and H-1B visa categories, which will likely benefit professionals from countries such as India. Changes would include providing work authorization for spouses of H-1B visa holders, 17-month extension of optional practical training (OPT) for certain F-1 international students, allow for additional part-time study for spouses of F-1 students, and allow outstanding professors and researchers to present a broader scope of evidence of academic achievement.

Under current immigration law, H-4 visa spouses of H-1B work visas holders are not permitted to work themselves. One of the proposed DHS regulations would change this. The new regulation would allow some spouses of H-1B visa holders to work legally while the H-1B visa holder spouses wait for their adjustment of status applications to be adjudicated. H-4 dependent spouses would be granted employment authorization when the principal H-1B visa holders begin the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the United States.

Currently, F-1 students may only work in optional practical training (OPT) for 12 months. DHS plans to provide 17 month extensions of OPT for those students with degrees in Science, Technology, Engineering and Mathematics (STEM).

Changes would also allow for additional part-time study for spouses of F-1 students, and would increase the number of Designated School Officials (DSOs) at DHS certified schools to enroll international students. Under current immigration regulation, spouses may only take part-time vocational or recreational classes. The proposed changes would permit spouses of F-1 students to enroll in additional academic classes on a part-time basis while the F-1 student is enrolled in full-time studies.

The DHS's stated purpose here is to reform administrative practices and ease the visa process for highly-skilled immigrants who want to come to the United States for work. This effort could help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

President Obama proposed to eliminate country-specific caps for certain immigrant visa categories to stimulate small-business growth. Country-specific immigrant caps are limits on the number of immigrant visa the United States will grant each year. According to a White House statement, the purpose is to attract more high skilled foreign workers, including entrepreneurs to the United States. Employers, especially those in the technology business, complain that these caps prevent them from hiring skilled workers and growing their companies in the United States.

Obama called for a comprehensive immigration reform bill, and if this is not politically possible, he will seek reforms in smaller steps. "If election-year politics keeps Congress from acting on a comprehensive plan, let's at least agree to stop expelling responsible young people who want to staff our labs, start new businesses and defend this country," Obama said.

The Department of Homeland Security said it will implement several measures to simplify the process for immigrant entrepreneurs to do business in the United States, and also to keep more foreign nationals with science and technology degrees from U.S. universities.

Obama said the proposal was a "symbol of how important it is for us to spur entrepreneurship, to help start-ups, to move aggressively so that we can ensure more companies that create most jobs in our economy are getting a leg up from various programs that we have in our government."

Opponents of Obama's plan point to the high unemployment rate in the United States and question why the government would be extending nonimmigrant visas for highly skilled workers while many US citizens and permanent residents are unemployed and are seeking those jobs.

Obama told reporters on Tuesday that he expects Congress to pass a bill this year. However, some members of Congress are likely to oppose the proposal.

Highly-skilled workers may immigrate to the United States with an EB visa, which offers them a path to permanent residence and perhaps citizenship. Workers already present in the U.S. with a temporary work visa, such as an H-1B, may also qualify to obtain a green card. Current U.S. immigration law only allows issuance of 140,000 green cards to people with temporary work visas. Additionally, every year immigration authorities can only grant seven percent of the total number of EB visas to applicants from any one country. This means that applicants from countries with few total applications may receive a visa quickly, while applicants from high-volume countries may wait years for approval.

A bill introduced in Congress last year, the Fairness for High-Skilled Immigrants Act, would remove the numerical caps on individual countries, significantly reducing the wait time for applicants from high-volume or "oversubscribed" countries like India. The bill passed the House of Representatives in November on a vote of 389 to 15, but it has stalled in the Senate. Critics point out that, while it may reduce wait times for applicants from some countries, in so doing it may substantially increase the wait time for others. It could potentially even exclude entire countries with low application rates. Critics also contend that the bill fails to provide for U.S. citizens who may also want high-tech jobs in a period of high unemployment.

The Washington Post profiled a couple living in suburban Washington, DC who came here from India seven years ago on temporary worker visas. Both work in high-tech jobs and have applied for permanent residence. Because of the high volume of applications from Indian nationals, they continue to wait. Under the terms of their temporary worker visas, they cannot change jobs or make significant changes to their living situations, and they must renew their visas every two years. They, and many other immigrants from countries like India and the Philippines, must live in a sort of suspended state while they wait for their applications to come up through the backlog.

The new bill would effectively eliminate the quota system established by current law. This could substantially benefit applicants from those large-volume countries, but applicants from lower-volume countries are less enthusiastic. The Post quotes an electrical engineer from Bangladesh, a country with far fewer visa applicants than neighboring India. He worries that the law would allow Indian applicants to "cut in line" in front of him, extending his wait time.

Continue reading "Bill Aimed at Streamlining the Immigration Process for Highly-Skilled Workers Meets with Controversy" »

The "Self Check" program, part of the U.S. Citizenship and Immigrations Services' (USCIS) E-Verify system, allows immigrants to check their own eligibility for employment through an online database. Now available in limited areas, including Ohio, USCIS recently announced that it will soon make the service available around the country. It is also requesting feedback from people who use the program

The E-Verify program itself allows employers to compare information provided by an employee on a Form I-9 to a database maintained by DHS. Employees have had little to no involvement with E-Verify itself, since employers mainly accessed the service. Errors or discrepancies in the database sometimes caused problems for employees, as otherwise employable immigrants appeared in the database as lacking employment authorization for one reason or another. USCIS says they launched Self Check in part to combat this problem.

USCIS launched Self Check on March 21, 2011 as a means of improving the efficiency of the E-Verify program by allowing immigrants and job applicants to access their employment eligibility information directly. The system also gives people an opportunity to spot errors in their records and work to correct inaccuracies, particularly discrepancies between records kept by the Department of Homeland Security (DHS) and the Social Security Administration (SSA). Errors in federal immigration databases can cause all manner of problems ranging from inaccurate records of employment eligibility to mistaken imprisonment. USCIS has issued assurances that all personally identifiable information will be secured and not misused.

The program was first available in five states and the District of Columbia. It is currently available in twenty-one states. USCIS states that that over 50,000 people have used the service since it launched. It hopes to expand to all fifty states within the next few months.

People can access Self Check by first entering identification information on the website, such as name, address, or date of birth. The service then asks users to confirm their identity with questions from a third-party verification service. These may be similar to questions used in online credit report services. Users then provide a social security number or Alien Registration Number to access database records. Self Check will search through databases maintained by DHS and SSA. It will also provide users with information on how to contact SSA and DHS to resolve errors or inconsistencies in database entries.

Continue reading "USCIS's "Self Check" Program Will Soon Go Nationwide" »

A class action lawsuit was filed last week against US immigration agencies on behalf of many asylum applicants who were wrongly denied work authorization, A.B.T., K.M.-W., G.K., L.K.G., D.W. v. USCIS; EOIR (Case No. 2:11-cv-02108 A.B.T). The nationwide lawsuit was filed by the American Immigration Council's Legal Action Center (LAC) against the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in the United States District Court in Seattle. The suit alleges that the USCIS and EOIR delays violate the Constitution, federal statutes, and governing regulations.

Asylum seekers are not eligible for work authorization during the 180-day period after the application is filed. But according to federal law, asylum applicants are to be granted work authorization after the application has been pending for 180 days. Due to unlawful and unfair practices and policies, U.S. immigration agencies have prevented asylum seekers from obtaining work authorization after the 180-day waiting period has elapsed. For example, one named plaintiff in the lawsuit is a man from China who filed his asylum application in 2003, and he has been pursuing work authorization for years without success.

In calculating the 180-day period, the USCIS relies on immigration judge determinations who work for the EOIR, which results in arbitrary policies on when the 180-day "clock" should start and stop. This, along with the increasing backlog in U.S. immigration courts, has unlawfully prevented asylum seekers from working. According to the lawsuit, these unlawful policies and practices prevented asylum applicants from obtaining work authorization and forced them to rely on the goodwill of others to support themselves and their families while they await decisions on their asylum applications, and this process can take many months and sometimes years.

The 180-day period (or "asylum EAD clock") may be suspended, but only for applicant-requested or caused delay of the adjudication of their asylum application, according to the lawsuit. USCIS and EOIR policies result in EAD clocks being arbitrarily started and stopped, and even permanently stopped in some cases. Many asylum seekers have not received adequate notice that their EAD asylum clocks have stopped, and they are consequently deprived of a meaningful opportunity to remedy these determinations.

Continue reading "Class Action Lawsuit Alleges Asylum EAD Clock Is Unfair" »

An Ohio business owner received a nine-month prison sentence from a federal district judge in Dayton last month, according to a press release from Immigration and Customs Enforcement (ICE). The man, 47 year-old Amarnath Trichy, was accused of filing false labor certification applications and employment-based immigration petitions for non-existent jobs with a fictitious company. His legitimate business, Recursive Technologies, Inc. (RTI) apparently developed a software project in 2005, called MEDBPO, intended to produce software to maintain electronic patient medical files. The company was never actually established, but Trichy reportedly filed multiple documents with the U.S. Department of Labor on behalf of MEDBPO beginning in 2005, and continuing for about five years, certifying a need for immigrant workers for positions U.S. citizens could not fill.

The first step for an employer in bringing a foreign worker to the United States, with the intention of obtaining legal permanent resident status, is to apply for "labor certification" from the Department of Labor. The employer must certify that, after a reasonably extensive recruitment process, it cannot find suitable U.S. workers for the position. The immigrant worker must not displace available U.S. workers by law. The wage offered to the immigrant must also meet certain standards set by the Department of Labor, as a means of trying to prevent immigrant labor driving down wages for other workers. The employer must demonstrate that it is financially sound enough to pay the proposed wage.

Officials alleged that Trichy would interview applicants for non-existent jobs with MEDBPO, and would demand payment of $1,500 to $2,000 from job applicants in exchange for assistance with their visa petitions. He filed as many as 248 petitions with the Department of Labor, and U.S. Citizenship and Immigration Services (USCIS) approved at least 26 visas for immigrant workers for his company.

The Department of Labor's Office of the Inspector General investigated irregularities in Trichy's case, along with ICE's Homeland Security Investigations (HSI) division. Federal officials charged Trichy with fraud and misuse of official documents. He pleaded guilty to one count on December 14, 2010. The judge in the Dayton federal district court issued his sentence on November 1, 2011.

Federal criminal statutes treat the offense of "fraud and misuse of visas, permits and other documents" very seriously. The federal criminal code makes it a crime to knowingly forge or falsify any official immigration document. Penalties vary based on the defendant's intent. The statute sets aside a specific penalty of up to five years' imprisonment for fraudulent acts committed as part of a plan to unlawfully employ immigrant labor.

Continue reading "Ohio Business Owner Sentenced to Prison for Employment-Based Immigration Scam" »

The Department of State Visa Bulletin took a giant leap today, advancing nine (9) months for the EB-2 preference category for persons from India and China. As it stands now, people from India and China who have a priority date of January 2009 or sooner will be able to file for their adjustment of status. This is great news for those who have been waiting with approved I-140 documents in the EB-2 preference category.

For all of the advancement in the EB-2 category, there was relatively little advancement in the EB-2 categories. If this trend continues, thousands of more EB-2 beneficiaries could be eligible to adjust in the coming months. Persons holding approved I-140 documents in the EB-3 categories may want to consider taking action to obtain a labor certification under the EB-2 preference category to take advantage of these developments.

Continue reading "January 2011 Visa Bulletin Takes a Giant Leap Forward" »

With the rise of H-1B visa audits, H-1B visa site visits and Labor Condition Application (LCA) investigations, the US Department of Labor (USDOL) Wage & Hourly Division (WH) is becoming more veracious in prosecuting employers suspected of violating LCA regulations. In this escalated enforcement environment, an immigration lawyer defending employers in H-1B visa audits must be a seasoned litigant. Having fiercely defended H-1B visa audit cases during the past several years, I can speak with authority on the subject. It is my belief that once an investigation is launched against an employer, the USDOL will rarely agree to walk away empty handed unless forced to do so by vigorous and aggressive litigation. H-1B visa dependent employers are more vulnerable and stand to receive more scrutiny as well as WH determinations carrying higher fines and back wages.

Some of the employer practices which I commonly see causing the launching of H-1B visa audits include benching of employees, paying employees "per diem" compensation instead of payroll, failing to file a new LCA once the employee changes employment, and failing to pay the employee after the H-1B visa petition is approved.

Whether the employer likes it or not, she might find herself suddenly facing an LCA or H-1B visa investigation process that may later lead to litigation and a potential financial liability as well as debarment from using the H-1B visa program. These consequences might very well bring the entire business to a lethal downward spiral. What I find as a common denominator in all H-1B visa audit cases I defended is that the employer is culpable to variant degrees. That is to say, there are usually issues that cause concern for employers once they undergo such a process. Hence, once the employer becomes subject to an H-1B visa audit or LCA investigation process, the USDOL will most likely find infractions and deviations from the LCA regulatory requirements somewhere in the employer's system. Perhaps such frequent incidence of employer deviation is caused by complex, and often conflicting, record keeping and reporting directives of the H-1B visa process vis-à-vis the realities of today's marketplace requirements.

Weakening the USDOL's Case

Hence, with such a high number of employer infractions and increasing H-1B visa audits, my job as an immigration lawyer is to preserve the employer's business from possible extinction and damage management. In my H-1B visa audit defense work, I am seeing back wages and penalties in the hundreds of thousands of dollars. I have found the best strategy for H-1B visa audit defense is to slowly and surely chip away at the government's case by engaging in a deliberate process of evidence elimination using advanced litigation strategies and tactics. The competent immigration lawyer must examine all pieces of evidence available to the USDOL and seek all possible ways to discredit or eliminate each such evidence entirely, thereby forcing the USDOL to return to the negotiating table. When the USDOL is faced with a weaker case, they will have a great incentive to settle the H-1B visa audit case with a much smaller dollar amount. It is only with such aggressive and vigorous litigation advocacy will the employer survive an H-1B visa audit case without having to close its doors for business, as often happens.

The Initial Investigation Stage

The H-1B visa audit process normally undergoes three main stages, namely, the LCA investigation process, the pretrial WH litigation process, and the trial before an Administrative Law Judge. At various steps in these stages, the employer is confronted with a myriad of allegations and legal issues that require careful handling. Mismanaging the employer's case from the outset of the process could increase the employer's liability. For instance, giving the WH investigator more evidence than requested by the initial investigation letter could increase the employer's liability.

Obviously, the best possible scenario for the employer is to survive the first stage in the H-1B visa audit process, namely the WH investigation process, without having to resort to a hearing. The initial LCA investigation process could be as short as a few months or as long as a couple of years. Often times, the investigation process ends up with the issuance of a "determination letter" signed by the WH Administrator setting forth the back-wages and penalties levied against the employer. The employer must remember that the WH investigator has little authority to settle the case at that point and has an absolute 15 calendar days to request a de novo review of the WH Administrator's determination before an Administrative Law Judge.

Continue reading "H-1B Audit Defense Requires Immigration Lawyer to be Litigation Savvy " »

Alabama's controversial immigration law, passed earlier this year, invited yet more scrutiny several weeks ago when police arrested a German businessman. Police pulled the man over just outside Tuscaloosa on November 16. He was driving a rental car that did not have tags, and he only had a German ID. Since Alabama's law requires police to investigate the immigration status of people involved in traffic stops, they arrested him. The man turned out to be a Mercedes-Benz executive visiting the company's 3,400-employee plant in Tuscaloosa.

The Mercedes-Benz plant is one of Alabama's great success stories of the past few decades. The company's 1993 decision to open the Tuscaloosa facility paved the way for similar plants by Honda, Hyundai, and Toyota, according to Bloomberg News. Mercedes-Benz itself described the arrest as "unfortunate" and declined additional comment. The incident has fed a growing sense among Alabama business leaders, some would say finally, that the law does more harm than good for the state's economy.

In other parts of the state, leaders are already sensing that the law is driving away not only workers, but investors and foreign employers. In March of this year, Golden Dragon Precise Copper Tube Group, a Chinese manufacturer, announced its intention to build a $100 million factory, employing at least 300 people, in Thomasville, Alabama. The company has now hinted that it will consider other offers elsewhere, which has Thomasville's mayor scrambling to do damage control. Other states are even trying to woo Mercedes-Benz and other large companies away from Alabama.

State leaders claim they intended the law to deter undocumented workers and increase the number of available jobs for unemployed Alabamans. Alabama is already very low on the national scale of economic strength and employment rates, and the new law has shown no signs of improving that. Fields of crops lay rotting because the people with experience working those fields either stayed away for fear of arrest or fled the state entirely. Small businesses in small towns and big cities alike across the state told a New York Times reporter that business was significantly down as their regular customers vanished.

Continue reading "Alabama Immigration Law Shows More Unintended Consequences After Arrest of German Businessman" »

The process of priority date advancement in the visa bulletin, is a matter of mystery to the immigration community. Immigration lawyers wish they have a crystal ball with which they can advise clients when their I-485 applications can be filed. Immigrants are always apprehensive about their green card applications and they do not know when their priority dates might become current. For certain Indian and Chinese nationals, the wait can be daunting. The US Department of State has recently made predictions regarding priority date advancement for Indian and Chinese nationals. This article provides a summary of these predications.

It is important for Chinese and Indian EB-2 petitioners to file their I-485 applications in the first month of visa availability. Moreover, it would be wise for Indian nationals in the EB-3 category to take the steps necessary to file an EB-2 petition due to the long wait in priority dates. Priority dates will be advanced significantly for category EB-2 nationals of India and China but EB-3 category dates will remain stationary, according to the Chief of the Visa Control and Reporting Division of the Department of State, Charles Oppenheim.

For nationals of India and China in the EB-2 category, Mr. Oppenheim predicts that over the next few visa bulletins, priority dates could advance eight months by February 2012, then remain stationary through June 2012 when there is a possibility of retrogression. Mr. Oppenheim explained that retrogression is necessary to make sure that all the visa numbers are used before 9/30/12, otherwise they would be lost forever.

Priority dates are predicted to stay the same during 2011 for nationals of India in the EB-3 category, advancing only one month from December 2011 through June 2012. This is because India is limited to only 3,000 EB-3 based green cards per year and the queue is estimated at 210,000. If this were to remain, a 70 year wait is conceivable. There is legislation pending that could eliminate this limitation, which would cause priority dates to advance.

For nationals of China in the EB-3 category, priority dates are predicted to advance about three weeks per month during 2012, which would mean an advancement of four months between December 2011 and June 2012.

The prediction for the rest of the world is that EB-2 priority dates will remain current in 2012, and the prediction for the EB-3 is that dates will advance about four weeks per month, moving ahead almost six months between December 2011 and June 2012.

Mr. Oppenheim explained that priority date predictions are hard to make because the number of people in the queue is difficult to estimate due to the unknown number of spouses and minor children who will apply for a visa number with each foreign national.

Continue reading "Department Of State Makes Predictions Regarding EB-2 and EB-3 Priority Dates For India and China" »

US Citizenship & Immigration Service announced this afternoon that it has received sufficient H-1B visa petitions to reach the annual numerical quota for this federal fiscal year. The announcement came one day before the Thanksgiving holiday while Immigration lawyers nationwide were scrambling to file last minute H-1B visa petitions. Our own law firm attorneys had planned to work through the holiday weekend to meet the demands of our clients when the news was released thereby bringing H-1B visa petition filing this year to a screeching halt.

Our law firm had performed a statistical and progression analysis and announced in our newsletter that the cap will be met by Thanksgiving this year. "We were right on the mark!!" said attorney Gus Shihab, founder and CEO of the Law Firm of Shihab & Associates. "our analysis were almost perfect in predicting when the H-1B visa cap will be reached this fiscal year."

We are now in federal fiscal year 2012; the H-1B visa quota was just met in November 2011. In comparison, federal fiscal year 2011 H-1B visa quota was met by January 2011 while federal fiscal year 2010 H-1B visa quota was met in December 2009. Hence, this year's H-1B visa cap announcement comes earlier than the last 2 years indicating a recovering economy since there is a strong correlation between H-1B visa usage and the employment of highly skilled US workers.

Is the H-1B Visa Numerical Cap Needed?

Congress instituted the H-1B visa cap limitation in order to "protect" US workers. The idea is that importing foreign nationals in highly skilled jobs could adversely affect the working conditions of Americans. This premise, however, has been unequivocally disproved by numerous studies which concluded that the employment of foreign nationals in Specialty Occupations (H-1B), has a positive impact on the country's innovations and advancement. Furthermore, the linear relationship between H-1B visa demand and a stagnant economy showed that as the economy slowed down, so did the number of H-1B visa petitions filed. Hence, employers were not racing to replace US workers with, as opponents claim, cheap foreign labor. To the contrary, when the US economy suffered, demand for H-1B visa workers was drastically reduced.

Since there is a strong correlation between innovation and H-1B visa workers, and since the employment of foreign nationals in H-1B visa status does not adversely affect American workers, it follows that the H-1B visa numerical cap stifles US innovation and technology.

The H-1B visa cap should be abolished.

Recent events have offered mixed news for immigrants and the attorneys who advocate for them, with some positive events occurring in the midst of an often-negative atmosphere for immigrants. Ohio is now experiencing the effects of the dispute between, on one side, those who support the rights of immigrants and tout the benefits immigration can have for local economies, and those who advocate greater restrictions on immigration at all levels.

We have previously reported on limits placed by the courts on some of the harsher provisions of anti-immigrant laws enacted in Arizona and Alabama, but the broader effect of those laws elsewhere in the nation remains to be seen. Last week saw the successful recall of Republican Arizona state senator Russell Pearce, the author of that state's controversial 2010 immigration law. Immigration advocates tout this as a victory for immigrant rights and a move towards a sensible immigration policy. Of course, many issues factored into Arizona voters' decision, but it is difficult not to see this as a major win for immigrants.

Ohio has also seen recent progress in immigrants' rights, with efforts from business leaders to attract immigrant investors and the decision by the city of Dayton to formally become "immigrant-friendly." A Chippewa Herald op-ed recently touted the importance of immigrants to Ohio's economy and the folly of blaming immigrants for the state's economic problems, noting recent efforts to attract immigrant investors and entrepreneurs to the area. The author makes the uncomfortable, but perhaps necessary, argument that immigrants will often perform jobs that others in Ohio will not, citing the example of Alabama farms that cannot attract non-immigrant labor.

At least one Ohio leader does not share this enthusiasm for immigrants, however. Sheriff Richard K. Jones of Butler County recently sent a letter to Governor John Kasich requesting assistance in creating stiffer penalties for immigrants and employers who hire undocumented labor. The sheriff's letter cites certain economic problems he associates with illegal immigration. He asks the governor to assist state legislators who are trying to pass legislation that would increase punishments for employers hiring undocumented workers and undocumented immigrants who break Ohio laws, as well as empower local law enforcement to make arrests for immigration violations. The similarities to the Arizona and Alabama laws are clear.

Continue reading "Controversy Over State Immigration Laws Comes to Ohio" »

The Department of State has issued its Visa Bulletin for December 2011. The new bulletin shows a five month jump in the priority date cutoff in the EB-2 category for foreign nationals born in India and China. Persons in this category with a priority date of March 15, 2008 or earlier are now eligible for immigrant visas. Because of the five month jump, some people in the EB-2 category are now current who may not have been expecting it. Others may be unaware completely. Persons with pending or approved I-140s in the EB-2 category should double check their priority dates and contact the Law Firm of Shihab and Associates with any questions about their current eligibility for lawful permanent residency.

Unfortunately, the EB-3 category for China and India born foreign nationals only advanced one month from the current priority dates in the November 2011 Visa Bulletin. The EB-3 category remains stagnant, with the backlog for Indian born persons now over nine years. Some people with labor certifications qualifying them for EB-3 classification may now have the requisite years of experience or an advanced degree allowing them to now pursue an EB-2 classification. Persons interested a possible "EB-2 upgrade" should contact the Law Firm of Shihab and Associates for a consultation to see if they qualify.

The United States Citizenship and Immigration Services (USCIS) announced last week that it is changing the format of two important documents: the Employment Authorization Document (EAD) and the Form N-560 Certificate of Citizenship. The agency's intent in modifying these documents is to enhance some security features and deter fraud and counterfeiting. It began issuing new EAD's on October 25, 2011 and new Certificates on October 30. The agency has launched several initiatives in recent years to combat immigration document fraud, including the E-Verify system, used to validate identity documents.

The EAD, commonly known as a "work permit," allows nonimmigrants who are lawfully present in the United States on certain types of temporary visas to work for a specified period of time. USCIS must adjudicate an application for a work permit within ninety days of receiving it, or else it must issue an "interim EAD" to the applicant. The interim EAD allows the applicant to work for some period of time or until USCIS adjudicates the application. Employers may hire individuals with a valid EAD without any further authorization from immigration authorities. Form I-9, the Employment Eligibility Verification form that employers must collect from every new hire, lists the EAD among its "List A" documents. These are documents that, by themselves, confirm an employee's eligibility to work in the U.S. These include a passport or a green card in addition to an EAD. Employers often use the E-Verify system to confirm the validity of identification documents submitted with a Form I-9. An EAD typically does not limit the type of work someone may do.

USCIS developed the new design in collaboration with the Forensic Document Laboratory at Immigration and Customs Enforcement (ICE). It features more complex design elements and multilayered components to deter copying or counterfeiting, and each card will have some personalized elements for fraud prevention. The new card displays the worker's alien registration number more prominently and includes other identifying information.

The Form N-560 Certificate of Citizenship serves as evidence that a person has become a U.S. citizen through certain processes. It is available children of U.S. citizens born abroad and children whose parents became naturalized before the children turned 18. This form is different from the Certificate of United States Naturalization available to citizens who went through the full naturalization process. The N-560 is no longer a "List A" document on Form I-9, and so is not sufficient by itself to establish a person's eligibility to work.

The revised form uses a printing process that offers additional protection against fraud and document tampering, and it incorporates design features that deter copying or counterfeiting. USCIS claims that the new processes reduce the reliance on human labor and therefore cut down on the possibility of human error.

Continue reading "Design Changes, Meant to Improve Security and Fight Fraud, are Coming for Employment and Citizenship Forms" »

On May 26, 2011 the US Supreme Court ruled that Arizona's mandatory E-Verify law is constitutional and can go forward thereby requiring all businesses operating in the State of Arizona to use this federally created voluntary pilot system, on a mandatory basis. A month later, the Ohio Legislature introduced Senate Bill 286 which is an Arizona E-Verify copycat bill, purporting to also mandate Ohio businesses to use the E-Verify employment eligibility verification online system. This article will explain that the proposed Ohio E-Verify law is bad for Ohio's businesses and bad for Ohio's economy. The current E-Verify system is riddled with inaccuracies and a mandatory compliance law will cost Ohio employers and citizens millions of dollars in administrative overhead and down time.

The Arizona Case

The US Chamber of Commerce had sued the State claiming that federal immigration laws may not be enforced by any State and that such enforcement is exclusively reserved for the federal government. They cited the sweeping 1986 immigration reform which stripped the States from any ability to undertake any such enforcement actions. In reality, however, Congress did leave a clause in such laws allowing the states to legislate regarding "all licenses necessary to operate the business." It was from this narrow clause was that the State of Arizona able to successfully defeat the constitutional challenge to its E-Verify legislation.

In a 5-3 ruling, Chief Justice John Roberts wrote the majority opinion stating that Arizona had the authority to legislate enforcement provisions for its employment verification apparatus. "We hold that Arizona's licensing law falls well within the confines of the authority Congress chose to leave to the states and therefore is not expressly preempted," the Chief Justice ruled.

The Ohio Mandatory E-Verify Proposal

Ohio's E-Verify copycat legislation was introduced in the Ohio Senate on Wednesday June 29, 2011. Representatives Combs and Bubp introduced this bill, which would require all Ohio employers - both public and private - to use the E-Verify system in ensuring the employment eligibility of new hires. The bill also outlines provisions for filing complaints and sanctions for employers that hire illegal aliens, which include firing all such workers, revocations of business license as well as criminal liability for violators. As of the date of this article, this proposed law was not referred to committee.

Why Ohio's Mandatory E-Verify Program is Bad for Ohio's Employers

A Mandatory E-Verify law in Ohio would cost Ohio employers millions of dollars in administrative cost plugging in data in the federal E-Verify system. Many rural employers do not have the skills or the high-speed Internet connectivity to do so. Furthermore, in many small businesses that do not have an HR department, the compliance will fall on the shoulders of the owner of the business herself which is not practical.

Errors in the E-Verify system itself will cost 800,000 workers nationally to lose their jobs and $3.6 million to correct such errors according to government data. The loss of such workers in today's high unemployment reality is certainly bad news for Ohio's workers and their employers. Such government data suggest that the error rate in E-Verify are even higher for employers who have a higher percentage of immigrant worker population as is the situation in many sectors of the workforce including high tech. and agricultural, and construction jobs. Green card holders and recently naturalized foreign nationals are ten times more apt to be erroneously identified by the system as ineligible to accept employment. Hence, Ohio's proposed mandatory E-Verify system will have the unintended consequence of discriminating against such workforce.

The Congressional Budget Office estimates that a mandatory E-Verify system will decrease national tax proceeds by $17 billion over a decade. Ohio's share of such proceeds will proportionally decrease as a result. Immigration lawyers in Columbus and Ohio as a whole have voiced their objection to this proposed legislation and plan to testify in opposition. Please join us in opposing this ill advised proposal.

At a time when Ohio is trying to lift itself out of an economic rut, a mandatory E-Verify system seems to take us deeper and deeper in the hole.