Author: SCwpadmin

by SCwpadmin SCwpadmin 341 Comments

Employment Authorization & Advance Parole Documents

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is now issuing employment and travel authorization on a single card for certain individuals who have pending employment or family based I-485 Applications to Adjust Status. An adjustment applicant may receive this combined card when he or she files an Application for Employment Authorization (EAD), Form I-765, and an Application for Travel Document (AP), Form I-131, concurrently with or after filing Form I-485. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other. As of July 2007, there is no longer a fee for either the Form I-765 or Form I-131 filed concurrently with, or in connection to, a pending Form I-485.

This new card replaces the previous practice of issuing a card for employment authorization and separate paper Advance Parole documents. The dual card looks similar to the current Employment Authorization Document (EAD) but includes text that reads, “Serves as I-512 Advance Parole.”

As with the current Advance Parole document, obtaining a combined Advance Parole and employment authorization card allows an applicant for adjustment of status to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the individual who travels with the card must present the card to request parole through the port-of-entry. The decision to parole the individual is made at the port-of-entry. Advanced Parole does not cure inadmissibility due to unlawful presence accumulated under INA 212(a)(9)(B) or (C). Individuals who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status. It’s therefore imperative that individuals who have accumulated certain periods of unlawful presence in the United States not travel until they have successfully adjusted status to permanent residence.

For more information about the EAD and Advance Parole card, visit www.uscis.gov.

by SCwpadmin SCwpadmin 354 Comments

Social Security Administration No-Match Letters

The Social Security Administration has recently begun issuing no-match letters which inform employers that an employee is using a social security number that does not match the information held by SSA. Employers enjoyed a long break in receiving the letters, as SSA had stopped sending them in 2007.

Currently, the SSA is sending one letter per employee for which the information does not match. Like the prior letters, the current version reminds employers that there many reasons for mis-matched data.

We recommend that employers who receive no-match letters first check their records to see if they have provided the correct information. If the employer’s records are correct, we recommend notifying the employee, in writing, and explain that the employee needs to take steps to fix the problem, such as contacting SSA. We believe 120 days is a reasonable time since Social Security Administration’s own manual states that it can take two months or longer for an individual to get a replacement SS card. Additionally, the original Department of Homeland Security (of which all the immigration agencies are part) rules (now rescinded) allowed 90 days. Additionally, the Office of Special Counsel of DHS suggests 120 days as a reasonable time frame.

For further issues related to SSA no-match letters we recommend employers contact counsel.

by SCwpadmin SCwpadmin 9 Comments

H-1B Season is Open

USCIS started accepting H-1B applications for fiscal year 2012 on April 1, 2011. H-1Bs filed pursuant to the 2012 fiscal year cap will become effective on October 1, 2011. As of April 15, 2011, USCIS had received 7,100 H-1B applications under the regular 65,000 H-1B cap and 5,100 applications in the master’s exemption pool of 20,000 cap numbers.

It is impossible to predict, exactly, how quickly the H-1B cap numbers will be exhausted so all employers are encouraged to start work on H-1B cap cases in the near future.

by SCwpadmin SCwpadmin 74 Comments

New Round of Worksite Enforcement Audit Notices

The government’s shift away from workplace raids to focus on employer worksite compliance continues. U.S. Immigration and Customs Enforcement (ICE) announced on February 17, 2011 that it had notified 1,000 companies around the U.S. of I-9 audits. A Notice of Inspection states that companies have three days to present I-9 forms for inspection. ICE indicated that companies of all sizes were included in this round of audits. http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf

by SCwpadmin SCwpadmin 366 Comments

H-1B Cap Reached

USCIS recently announced that the H-1B cap has been reached for this fiscal year. Accordingly, USCIS will not accept any filings for new, cap-subject H-1B applications until April 1, 2011. The applications filed on or after April 1, 2011 will have an effective date of October 1, 2011.

This development does not impact cap-exempt employers, like universities or non-profit research institutions, and does not impact individuals who already possess H-1B visas who are transferring to new employers.

Companies who have individuals working on Optional Practical Training (OPT) or who seek H-1B visas for current or future employees should start preparing new H-1B applications well in advance of April 1, 2011.

by SCwpadmin SCwpadmin 96 Comments

Revised I-9 Handbook for Employers

The Handbook for Employers is a guide to help employers in the Form I-9 process. It has been updated (Rev. 1/05/11) with new information about applicable regulations, including electronic storage and retention, and processing an employee with a complicated immigration status. There are new visual aids and examples of new relevant USCIS documents. The handbook also includes expanded guidance on lawful permanent residents, exchange visitors and foreign students, and employees porting to H1-B status. You can find The Handbook for Employers, also known as the M-274, on the United States Citizenship and Immigration Services website, www.uscis.gov.

by SCwpadmin SCwpadmin 364 Comments

Colorado Employment Verification Law Audits

All Colorado employers are subject to a possible employment verification law compliance audit by the Colorado Department of Labor and Employment (CDLE). Compliance audits may originate from complaints, random selection, or situations where there is reason to believe an employer has not complied. The purpose of the audits is to ensure that employers are fulfilling their obligation to adhere to the employment verification and documentation requirements specified in § 8-2-122, C.R.S. It has been reported that the CDLE is sending audit letters to two hundred employers each month.

The state employment verification laws are different and separate from federal I-9 requirements. For each new employee hired on and after January 1, 2007, Colorado employers must complete affirmation forms and retain copies of the employee’s Form I-9 identity and employment authorization documents. A sample affirmation form may be found at www.colorado.gov/cdle/evr.

The CDLE reportedly wants to educate companies about the state’s employment verification laws. However, companies should also be reminded that the law includes fines of up to five thousand dollars for the first offense and up to twenty-five thousand dollars for subsequent offenses for an employer who, with reckless disregard, fails to submit the required documentation when requested by the CDLE.

by SCwpadmin SCwpadmin 449 Comments

New Export Control Attestation Requirement on I-129

Employers should be aware of the new requirement to complete an export control attestation under penalty of perjury when filing for certain non-immigrant visas for employee beneficiaries. The Commerce Department has suspended the requirement to answer this question on the I-129 until February 20, 2011. In order to accurately complete the new attestation on Form I-129, used for H, L, and O visa status applications, a company must certify that it has reviewed the applicable regulations and either an export license is not required or an export license is required and will be obtained before any controlled technology and data will transfer to the foreign national.

Export classifications and licensing determinations can be complicated and employers do not want to make a misrepresentation on Form I-129. Employers should work closely with an attorney who has expertise in export control law to make the determination.

by SCwpadmin SCwpadmin 96 Comments

H-1B Visa Availability Coming to an End

As of December 31, 2010, USCIS had accepted 57,300 cap-eligible petitions which have either been approved or are still pending.

The H-1B cap is 65,000 H-1B numbers. Up to 6,800 visas can be set aside for applicants from Chile and Singapore. The USCIS Ombudsman has advised AILA Liaison that 6,358 H-1B numbers that were unused last year have been added to this year’s pool. Therefore, the total number of H-1Bs available for this year is 64,500. Since USCIS has accepted 57,300 cap-eligible petitions, only approximately 7,000 visa numbers were available as of the end of 2010.

by SCwpadmin SCwpadmin 101 Comments

Employer Discrimination in the I-9 Process

The Immigration and Nationality Act (INA) prohibits employers from treating employees differently during the I-9 process based on national origin or citizenship status. One way for employers to avoid discrimination is when the employee first completes the I-9 form. Employers should not request particular documents to verify identity and employment authorization and should let all employees choose which document(s) to present from the lists of acceptable documents.

Discrimination can also occur in other ways during the I-9 process. Hoover, Inc., a vacuum cleaner manufacturer, allegedly engaged in a pattern and practice of employment discrimination by requiring lawful permanent residents to produce a new green card when the green card they first presented for the I-9 expired. The INA provides permanent residents the same right to continued employment that U.S. citizens have without presenting new documentation. Since U.S. citizen employees were not asked to present new documents, the Justice Department determined that Hoover treated permanent residents differently during the I-9 process. The Justice Department reached a settlement with Hoover in November 2010, including payment of $10,200 in civil penalties.

Employers should not re-verify the employment authorization for a lawful permanent resident whose green card has expired after the employee is hired. Our firm is actively involved in assisting employers in the area of employee verification. Employers should contact us if they are interested in improving their verification procedures, and/or conducting an audit to determine if there is any current liability.

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