DHS Publishes Business Transformation Regulation
On Monday, August 29, 2001, the Department of Homeland Security (DHS) published the first in series of regulations intended to move U.S. Citizenship and Immigration Services (USCIS) from a paper-based to an electronic account-based filing system. USCIS estimates that it will take several years to fully implement the system that is expected to handle more than 6 million filings annually, comprised of more than 50 different types of applications and petitions. The new regulation will become effective on Monday, November 28, 2011, and can be found in the Federal Register at: www.gpo.gov The public is invited to comment on the proposed regulatory change through October 28, 2011.
The first release of the new system is scheduled to occur in December of 2011 for stand-alone applications for B-1/ B-2 visitors, F-1 students, J-1 exchange visitors, and M-1 trainees. This is a relatively safe first move as visitor are normally only authorized to stay for a few additional months, and F-1, J-1, and M-1 are already tracked through the SEVIS system that applies to status holders participating in a program pre-cleared by DHS. DHS plans to have additional scheduled releases that will add forms, features, and new processes approximately every 6 months over the next few years.
In the past, the paper based system made it difficult for USCIS to track multiple filings by the same company, or multiples petitions by different employers on behalf of the same foreign worker. The Federal Register states that under the new system, USCIS “will create an end-to-end electronic adjudicative process encompassing an alien’s entire immigration lifecycle” by allowing data from previous filings to be reused. USCIS also plans to incorporate links to internal and external commercially available data systems.
The shadow of the 2012 presidential election has been cast over the small world of immigration law. On August 18, 2011, the Department of Homeland Security (DHS) announced that it would pursue a new interagency process to identify low-priority removal (deportation) cases that should be considered for an exercise of prosecutorial discretion in an effort to allocate more resources to expediting high-priority removal cases, including terrorists and aggravated felons. This most recent announcement is the latest in a long line of memos from the DHS Immigration and Customs Enforcement (ICE) Unit, including similar memos from June of 2010, August of 2010, and June 17, 2011. These memos and the way they have been implemented has not made any constituency happy. Some groups are upset by what they feel appears to be some sort of an “amnesty,” which the memos are not. Other groups are upset that approximately 400,000 persons are now being deported each year, a trend which is likely to continue.
A report released in June of 2011, using data from 2010, explains who is being deported, to which country, and what percentage of deportees are dangerous criminals. The report can be found at: www.dhs.gov
DHS Secretary Janet Napolitano also recently announced immigration initiatives to promote startup enterprises and spur job creation. Unfortunately, in spite of a bold title, the initiatives amount to little more than updating the FAQ sections for H-1B and national interest waiver petition instructions on the USCIS website, along with a proposal to offer faster processing for immigrant investors who invest at least $1 million dollars and hire 10 U.S. workers. The press release is available at: www.dhs.gov
The reality at ground level is that petitioners running the immigration gauntlet have had to work through a process that is as difficult and user unfriendly as it has ever been. Even extending petitions previously approved has become an unpredictable endeavor. While this has provided immigration attorneys with a full work load, the current process is not making the business operations of U.S. employers who sponsor foreign workers any easier. The common thread in the recent flurry of announcements is lots of talk, but very little action in pushing the actual execution of the current laws one way or another. Saying that something will happen is not the same as making it so.
Most employers who sponsor foreign workers for lawful permanent residence (aka green card status) are required to complete the PERM labor certification process to confirm an unavailability of qualified, able, and willing U.S. workers. One of the key pre-filing steps is to confirm the prevailing wage with the U.S. Department of Labor (DOL). Until a few years ago, this task was delegated to the State Employment Service Agency (SESA) in each state. DOL then moved to federalize wage determinations in order provide more efficiency and consistency in the process. Consistency has been achieved, and the process is now broken in all 50 states. At one point in time, the DOL was issuing wage determinations within 1-2 weeks of submission. By August of this year, the wait had grown to 3 months and counting. DOL then issued a notice on August 11 stating that it had been ordered by a Federal court to reissue 4000 H-2B wage determinations. To comply with the court order, it has delayed the processing of the PERM wage determinations. The DOL has refused to provide any estimate as to when it will again start processing non-H-2B wage determinations. When they go back to issuing the PERM wage determinations, they should be issued in a FIFO (First In First Out manner).
The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS announced that as of August 26, 2011 it had received approximately 15,800 master’s cap filings as well as approximately 29,000 filings for the other cap for Fiscal Year 2012, which will begin on October 1, 2011. While it is impossible to know how long the H-1B visas numbers will continue to be available, visas will probably continue to be available at least through the end of the calendar year and possibly after that. Visa status obtained through the FY2012 cap numbers will provide lawful work authorization status from October 1, 2011 forward. The cap limitations do not affect extension petitions or employees who receive sponsorship to transfer the H-1B status to a new employer.
E-Verify is an Internet-based system operated by U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). It provides an automated link to federal databases to help employers determine employment eligibility of new hires and the validity of their Social Security numbers. Certain Federal contractors are required to be enrolled in the E-Verify program as a condition of receiving a Federal contract. A handful of states, including Arizona, Colorado, and Rhode Island, have begun to require certain employers to participate in the program as a condition of being allowed to do business within the state. In California and most other states, participation in E-Verify is voluntary. Some employers have begun to use this program to obtain a 17-month EAD work card extension for new hires lawfully employed pursuant to the F-1 student visa practical training option. Other employers in industries that tend to have a high proportion of unauthorized workers, including construction, food processing, and certain types of manufacturing, have been encouraged by the DHS to participate in this program with the tacit understanding that participation may assist the employer in mitigating potential liabilities related to the employment of workers who may ultimately be found to be not authorized for lawful employment in the U.S. Contrary to government assertions, E-Verify has proven to provide increased exposure to government prosecution with little or no mitigating value.
Further, use of the program does not provide the company with a safe harbor from DHS enforcement activities. That may be especially troubling given the specific language in the memorandum of understanding (MOU) that the company must sign to participate in the program. The MOU authorize DHS, SSA, its agents and assignees to review documents and to interview HR, possibly company officers, as well as employees who were subjected to the E-Verify system. Agreeing to give any Federal agency open access to the company’s records and its employees carries the potential for significant problems. It is noted that financial penalties exist for overly lax companies judged not to be in compliance with the employment verification obligations as well as for overly strict companies judged to be in violation of anti-discrimination laws. The civil penalty for a finding of a “knowing violation” can range from $375 to $16,000 per worker unlawfully employed. Criminal penalties for immigration related violations can include up to 5 years in jail, a fine of $250,000, and even a seizure of the assets of the business.
USCIS continues to push for more employers to volunteer to enroll in this system. For most employers, the system’s risks outweigh the rewards. USCIS now hosts webinars as a part of its continuing public outreach efforts. For those interested, the most recent update to the E-Verify webinar schedule can be found here.