In an important step forward, the Senate held its first-ever hearing on the DREAM Act. The DREAM Act allows many young immigrants, who have grown up in the United States, the opportunity to become permanent residents of this country. The hearing highlighted the fact that many of these individuals are top students and aspire to be professionals and entrepreneurs in this country as well as serving America by enlisting in the military. The lack of a path to permanent residence for these individuals puts them in a “dead-end” position in the United States. As a country of immigrants, we need to empower these individuals to become full-contributing members of our society. Hopefully, the hearing will have a positive impact on the passage of this important legislation.
ICE Prosecutorial Discretion
Director of Immigration and Customs Enforcement (ICE), John Morton, recently issued a Memo outlining guidance to ICE agents and attorneys on exercising prosecutorial discretion. Specifically, he stated that ICE personnel may exercise prosecutorial discretion based on certain factors, including how long an individual has been in the U.S., what the individual’s status has been during his/her time in the U.S., circumstances regarding the person’s arrival and stay in the U.S., the individual’s education while in the U.S., the individual’s family ties to those with lawful status in the U.S., the individual’s immigration history, the individual’s criminal history, and the Agency’s immigration enforcement priorities, among other factors. Director Morton also clearly stated that no individual has a right to prosecutorial discretion.
H-1B Cap Update
USCIS reports that as of June 17, 2011, 16,300 H-1B petitions have been receipted for the regular allotment of 65,000. Additionally, 10,800 H-1B petitions have been receipted for foreign professionals with advanced degrees, out of the available 20,000.
1,000 New ICE Notices of Inspection
Immigration and Customs Enforcement (ICE) announced June 15, 2011 that it will audit 1,000 new companies nationwide. This continues the government’s trend to use the I-9 audit process to check on employers’ compliance with employment eligibility verification requirements and impose costly penalties. For more information, see http://money.cnn.com/2011/06/15/news/economy/immigration_ice_audits/index.htm?iid=H_SB_News
If your company has received an ICE I-9 Notice of Inspection, contact Stern & Curray for an experienced response. If your company has not yet been the target of an ICE audit, contact Stern & Curray for a proactive review of your I-9 compliance strategies.
U.S. Government Unveils New Multi-Agency Initiative To Combat the Unauthorized Practice of Immigration Law (UPIL)
The U.S. government has unveiled a new initiative to combat the unauthorized practice of immigration law (UPIL). The unauthorized practice of immigration law occurs when a person gives legal advice who is not an attorney or accredited representative. The Department of Homeland Security (DHS), the Department of Justice (DOJ) and the Federal Trade Commission (FTC) will be working together on this new initiative. The new government initiative will focus on enforcement, collaboration and education to combat UPIL. To increase enforcement, DOJ will dedicate more resources to the investigation and prosecution of UPIL cases and increase their collaborative efforts by working with the FBI, ICE, USCIS and state and local agencies.
The system for reporting instances of UPIL has also been improved. The Federal Trade Commission has made it easier to report incidents of fraudulent immigration practice or immigration scams. Victims of immigration fraud can call the FTC hotline to report instances of UPIL. To file a complaint in English or Spanish visit the FTCs online complaint assistance (www.ftccomplaintassistant.gov) or call 1-877-FTC-HELP (382-4357). The FTC database, the consumer sentinel network, is shared with more than 2,000 law enforcements agencies and also with ICE, DOJ and USCIS. Prosecutors and investigators will use these complaints to investigate instances of UPIL.
To increase education regarding immigration law, USCIS has designed a new brochure, a poster, a public service announcements and a new web resource center. These efforts are aimed at providing better education to the immigrant community regarding the unauthorized practice of immigration law and where to go for legal advice. For more information about the USCIS education initiative program, visit www.uscis.gov/avoidscams.
Education about UPIL will also be improved by making the public more aware of the Executive Office of Immigration Review (EOIR) recognition and accreditation program. While non-lawyers are allowed to practice immigration law, they are only permitted to do so if recognized and accredited by EOIR. EOIR accreditation signifies that an organization and designated members are qualified and able to provide immigration advice and services. The government plans to increase the use of the accreditation program so that immigrants are able to more easily identify whether or not an organization is properly qualified to provide immigration services. For more information on the EOIRs recognition and accreditation program, please visit the DOJ website www.justice.gov/eoir/statspub/raroster.htm.
Mandatory E-Verify for Arizona Employers
On May 26, 2011, the U.S. Supreme Court upheld the Legal Arizona Workers Act of 2007 which requires all Arizona employers to use E-Verify and takes away the business licenses of companies that knowingly hire illegal immigrants. Chamber of Commerce v. Whiting (U.S. May 26, 2011). The majority opinion found the state law is not preempted by federal immigration law. This recent decision did not address Arizona’s SB 1070, the more high-profile Arizona immigration law which requires police to check the immigration status of individuals in certain circumstances.
Supporters of the Arizona bills plan to use this decision as a victory to call for even more employer sanctions laws in other states and at the federal level. Meanwhile opponents, including the American Immigration Lawyers Association, continue to call for immigration reform at the federal level.
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.
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.
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.
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