New H-1B Cap Gap Rule May Not Help Those Who Need It Most

The new H-1B cap gap bridge is revealing a crack that may cause it to collapse.

The new regulation requires H-1B applications be marked “change of status” to benefit from the automatic Optional Practical Training (OPT) cap gap extension.

This requirement poses a critical problem for cap gap sufferers because they would not have been eligible to change status. Instead, those whose status would have expired before the Oct. 1 employment start date would have had to leave the country to obtain their visa, thus they would have not checked the “change of status” box.

In other words, the regulation has made itself inapplicable to the very group it is intended to protect.

AILA has called this irony to the attention of USCIS and is awaiting guidance.

We will post any update as soon as it is announced.

 

New OPT Rule Effective Today, April 8, 2008

The interim final rule regarding the extension of optional practical training (OPT) for certain foreign national students was published in today’s Federal Register, meaning the rule is now in effect.

The final rule will be issued after the Department of Homeland Security reviews public comments, which must be submitted by June 9, 2008.

The rule extends OPT for two categories of students. The first is for pending H-1B applicants who are caught in the cap gap caused by the limited annual availability of visas. Those applicants with a start date of Oct. 1, 2008, when the new H-1B visas become available, but whose OPT period will expire before Oct. 1, 2008 will receive an automatic extension of their OPT to cover them through Oct. 1, 2008, assuming the H-1B application is approved.

If the application is denied, the student has 60 days to leave the country from the date of notification of the denial.

The second category of students to benefit from the new rule are those who hold degrees in science, technology, engineering and mathematics and whose employers are enrolled in the controversial E-Verify program. OPT for these students is being extended from 12 months to 29 months, a 17-month increase.

The published rule in the Federal Register is available here: http://edocket.access.gpo.gov/2008/pdf/E8-7427.pdf

For more information about this new rule, please see our earlier article OPT Extension to Benefit H-1B applicants and STEM students. 

Study Slams Mandatory E-Verify Program As Ineffective, Expensive, Intrusive

The CATO Institute has issued a report lambasting the concept of a federally-imposed electronic employment eligibility verification system as ineffective, expensive and intrusive.

The report is arriving as more and more states are joining Arizona in passing laws that require employers to use the federal government’s existing E-Verify program to confirm work authorization and as the federal government is threatening to make its use mandatory nationwide.

The report says this state and federal effort to require use of any such electronic employment eligibility verification (EEV) program is ill-conceived and ill-advised, promising to create more problems than it may potentially solve.

A mandatory national EEV system would have substantial costs yet still fail to prevent illegal immigration. It would deny a sizable percentage of law-abiding American citizens the ability to work legally.

The report predicts such a program will actually result in an increase in identity fraud, document fraud and abuse of desperate foreign nationals seeking a better life in the United States.

Such a system would make working in the United States more difficult, of course, but it would not eliminate the United States’ attraction to immigrants. Some potential illegal immigrants would change their plans, but others would respond quite differently. Some workers and employers would collude to avoid this immigration enforcement system. Work “under the table” would increase and, along with it, other forms of illegality.

The value of committing identity fraud would rise, and more illegal immigrants would commit this crime or deepen the minor frauds they are now involved in. Criminals and criminal rings would use the Social Security number (SSN) data from stolen laptops and hacked databases much more often in identity fraud as a robust black market for Americans’ personal information emerged.

The use of these data to fabricate mock identities would compound the problem for victims in a diabolical way. Seeking to prove their right to simple employment, American workers would have to appeal to bureaucrats who assume they are identity thieves.”

The CATO Institute says EEV constitutes one more excessive, Big Brother intrusion by the government into our privacy and an attack on our civil liberties.

Even if it were free, the country should reject a national ID system. It would cause law-abiding American citizens to lose more of their privacy as government records about them grew and were converted to untold new purposes. “Mission creep” all but guarantees that the federal government would use an EEV system to extend federal regulatory control over Americans’ lives even further.

But, the system is not free. CATO says that creating an accurate EEV system would require a national identification (ID) system costing the taxpayer about $20 billion to create and hundreds of millions more per year to operate.

This figure does not take into account the time that Americans and legal workers will waste gathering paperwork and standing in line at government offices waiting to correct errors.

The current E-Verify system has been maligned as error-prone. A human resources association reports that the social security database, which is the source used by E-Verify, has a 4.1 percent error rate. The group, Human Resource Initiative for a Legal Workforce further explains:

If all U.S. employers were to use the system, as many as six million U.S. citizens and legal residents could be denied employment due to bureaucratic error.  The error rate for legal foreign-born workers is estimated to be as high as 10 percent - opening the door to increased discrimination based on national origin.  

The federal government has said it will try and improve the system, according to this article in the Indianapolis Star.

Employers Face Stiffer Fines For Immigration Violations

Employers who violate immigration laws will face stiffer fines effective March 27, 2008, announced the U.S. Attorney General’s Office. 

The fines are going up on average 25 percent, which the government says is simply an adjustment for inflation, the last change being in 1999.

Employers may be fined if found to have knowingly employed undocumented works or for other violations, including failing to comply with the requirements relating to employment eligibility verification forms, wrongfully discriminating against job applicants or employees on the basis of nationality or citizenship, and for immigration-related document fraud.

The minimum penalty for knowing employment of an unauthorized alien jumps $100, from $275 to $375. The maximum penalty for a first violation is increasing from $2,200 to $3,200.

The largest hike raises the maximum civil penalty for multiple violations from the current $11,000 to $16,000. These penalties are assessed on a per-person basis; thus, if an employer knowingly employed, or continued to employ, five undocumented workers, he would be subject to five fines.

This increases comes on the heels of ramped up immigration enforcement raids and criminal prosecutions against businesses. 

Business owners object to the new fines, saying they combined with the worksite immigration enforcement campaigns will only increase the likelihood of discrimination against foreign nationals, according to the Dallas Morning News.

AZ Employer Sanctions Law Upheld By Federal Court; Plaintiffs to Appeal Ruling

The controversial Arizona state law that threatens employers with closure of their business for hiring unauthorized workers passes Constitutional muster, ruled a federal district court judge.

States Cracking Down on Unauthorized Employment; Employers Fighting Back

Lately it seems the media has been teeming with stories on the backlash in states that have introduced legislation requiring employers to use a maligned federal database to verify a worker’s social security number.

In the past year or so, more and more states are contemplating or have already implemented legislation that compels employers to verify work authorization using the federal electronic verification program, called E-verify.

This week alone media reports on opposition to the forced use of the E-verify system included California, Texas, Arizona  and Kansas. Employers in Oregon are also rallying against proposed regulations targeting undocumented workers.

Employer Prosecutions Under AZ Sanctions Law On Hold Until March 1 Pending Court Ruling

Employers in Arizona received a reprieve until March 1, 2008 from prosecutions under a precedent-setting employer sanctions law pending a federal court ruling in a constitutional challenge to the state regulation.

AZ Employer Sanctions Law Clears Court Challenge for Implementation; Which State is Next?

Arizona employers are coming closer to being forced to use a maligned federal government database to verify the work eligibility of all hires or risk their business licenses under a controversial new state law.

DHS to Revise Controversial Social Security No-Match Regulation in Response to Lawsuit

The U.S. government has told a California court it intends to revise the controversial new DHS regulation that requires employers to resolve mismatches between employee Social Security numbers and existing records in government databases or risk criminal and civil penalties for knowingly employing illegal workers.

The government’s decision was prompted by a lawsuit over the regulation which had been put on hold pending the court’s decision in the case.

The motion filed by the Department of Justice last week requests a stay in the proceedings until the rule-making process is finished, which is estimated to be at the end of March 2008.

The motion states that as part of the rule-making process, the government will address concerns raised by the court, including conducting an analysis of the economic impact of the rule and its effect on small businesses.

The rule, titled Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, was published in August and would have given employers three months to correct or verify Social Security numbers that do not match employee names after receiving a “no-match” letter from the Social Security Administration. If the names and numbers cannot not be reconciled, employers would be forced to fire the workers or be held liable for illegal hires.

The American Civil Liberties Union, the U.S. Chamber of Commerce, labor unions and immigrant rights groups sued the agency in September in California, alleging that government databases are so error prone that the rule would harm U.S. citizen employees and discriminate against foreign-born or simply foreign-looking or foreign-sounding workers.

In response, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking the government from mailing the letters while the court considers the case.

For more background on this issue, please see our previous article “Calif. Court Blocks New Social Security “No Match” Rule Pending Trial Judgment.”

New I-9 Form Released; 5 Docs Removed From Acceptable List For Employment Verification

USCIS has released the new Form I-9 required to be completed by all employers to verify a new employee is authorized to work in the United States. The most significant change is the removal of five documents from the list of those that may be used to verify identity and employment eligibility and the addition of one new, acceptable document, according to the press releases issued by USCIS Nov. 7.

Employers should immediately begin using the updated I-9 for any new employees. Employers do not need to fill out the new form for existing employees, but will need to use it when re-verification is required.

The five documents that are no longer acceptable proof of identity or employment are:

• Certificate of U.S. Citizenship (Form N-560 or N-561)

• Certificate of Naturalization (Form N-550 or N-570)

• Alien Registration Receipt Card (I-151)

• Unexpired Reentry Permit (Form I-327)

• Unexpired Refugee Travel Document (Form I-571)

One new document was added to List A of the List of Acceptable Documents:

• Unexpired Employment Authorization Document (I-766)

USCIS said these forms were removed because they lack features to help deter counterfeiting, tampering, and fraud.

The new, acceptable document is the most recent version of the Employment Authorization Document (Form I-766).

In total, the revised list of acceptable documents now includes:

• U.S. passport (unexpired or expired)

• Permanent Resident Card (Form I-551)

• Unexpired foreign passport with a temporary I-551 stamp

• Unexpired Employment Authorization Document that contains a photograph (Form I-766, I-688, I-688A, or I-688B)

• Unexpired foreign passport with an unexpired Arrival-Departure Record (Form I-94) for nonimmigrant aliens authorized to work for a specific employer

The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and keep it in the employer’s records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

The new Form I-9 and M-274 handbook with detailed instructions for completing the form are available on the USCIS website. Brief instructions are available here. Forms may also be obtained by calling USCIS at 1-800-870-3676 or the national customer service center at 1-800-375-5283.

Rumors True: DHS Issuing New I-9 Employment Eligibility Verification Form

After initially denying rumors a new I-9 form was on its way, DHS has just informed AILA the new form and employer handbook may arrive as early as the week of Nov. 5.

Calif. Court Blocks New Social Security “No Match” Rule Pending Trial Judgment

A California federal judge issued a preliminary order Oct. 10 that continues to block the U.S. government from enforcing a new rule targeting illegal workers that would punish employers if they do not take action after receiving social security “no match” letters. The ruling extends that prohibition indefinitely until the court issues a final decision in the case against the government.

The preliminary injunction handed down by the United States District Court for the Northern District of California comes as a result of a lawsuit filed by the AFL-CIO and other labor and immigrant rights organizations in August against implementation of the Department of Homeland Security’s (DHS) Final Rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.” (AFL-CIO, et al. v. Chertoff, et al. (N.D. Cal. Case No. C 07 4472 CRB))

In the lawsuit, the groups charge that the misguided rule violates the law and workers’ rights, imposes burdensome obligations on employers, and will cause discrimination against workers who are perceived to be immigrants.