E-Verify Explained

The Migration Policy Institute has posted an informative explanation of the controversial E-Verify program and its proposed alternatives.

E-Verify is a U.S. government database that employers can use to verify the employment eligibility of prospective hires. Both the U.S. government and some states are attempting to make use of this database mandatory against the protests of various immigration, business and other advocacy groups.

One of the key problems with this database is its unacceptable error rate, which results in citizens and non-citizens alike receiving non-confirmation notices. A non-confirmation means the prospective employee effectively cannot start work until he clears his name.

The following are highlights of the problems with the database extracted from the Migration Policy Institute’s article on the issue:

Error Rate

“False nonconfirmations, the most serious problem, affect both legally resident workers and employers. Where tentative nonconfirmations are successfully appealed, some workers report having to make multiple trips to SSA field offices or numerous calls to DHS to correct the error.

The persistence of database errors means that protecting workers against false final nonconfirmations requires employers to endure relatively long periods of uncertainty about employees’ status to ensure workers an adequate opportunity to appeal a [nonconfirmation]….

As noted earlier, foreign-born workers, particularly naturalized citizens, have the highest database error rates. Since Westat, GAO, and other independent analysts have found that employers subject native and immigrant workers to different degrees of scrutiny, human error and bias can reinforce the problem. …”

 Identity Theft

 “A second unintended consequence of E-Verify is identity theft, which affected 8.4 million Americans in 2007 at a cost to these victims of $50 billion according to the US Trade Commission.

By linking employment more closely to valid Social Security numbers (SSNs) and associated data (e.g., name and state of birth), E-Verify increases the value of this information, the key to stealing an individual’s identity.”

Excessive Cost to Tax Payer

“Third, although USCIS bears the financial costs of administering E-Verify, SSA manages 90 percent of the system’s queries, and SSA field offices must resolve erroneous nonconfirmations for US citizens.

SSA administrators have testified before Congress that these tasks threaten the agency’s ability to complete its core mission of service to disabled and retired Americans. These administrators have estimated that a mandatory E-Verify program would cost the agency about $281 million for fiscal year (FY) 2009 through FY 2013.

SSA officials and advocates for the agency warn that expanding E-Verify would threaten the agency’s ability to process the impending wave of baby boomer retirees, which is expected to add a million new cases to the agency’s workload each year for the next decade.”

Weird Science: Maddening Visa Policies For World’s Brightest And What You Can Do About It

On the heels of yesterday’s post about the proposed STAPLE Act, today the Washington Post ran a timely article discussing a related obstacle faced by the world’s brightest minds, who would prefer to use their expertise in the United States but due to ill-conceived visa polices and procedures find it all but impossible to do so.

The article, headlined “U.S. Visa Delays Distress Scientists,” talks about the plight of foreign talent eager to get back to work, but who are stuck in their home countries waiting to emerge from the background check black hole so they can get a visa to re-enter the United States. (To read the article you will have to register to read the article, but to do so is free. If you don’t want to register, use a log-on from a site such as www.bugmenot.com).

It doesn’t take a genius to figure out the consequences such obstacles are having and will have on scientific research and advancement in the United States. Experts don’t want to sit idle waiting for the U.S. government to decide whether they are worthy of a visa, and research institutions can’t simply put projects on hold until the experts arrive.

Innovation will go elsewhere.

If you want to bring back some common sense and balance to U.S. immigration law, contact your Senators and Congressmen. To learn more about the issues and how to contact your representatives, check out AILA’s Legislation and Advocacy pages, most of which do not require a password to use. Also see AILA’s advocacy arm AILFand AILF’s policy site for additional information, both of which are free to access.

New biometrics ACS office opening in Saipan in March 2009

A new Application Support Center (ASC) is scheduled to start operations March 2, 2009 in Garapan, Saipan in the Common Wealth of the Northern Mariana Islands (CNMI), according to a USCIS press release.

The new center will allow the people to provide their fingerprints and other biometrics without having to travel to Guam or the United States.

In addition to the traditional function of fingerprinting services, people will be able to make appointments through the USCIS website (www.uscis.gov) to see an Information Officer at the ASC for general immigration questions.

The customer service line (800) 375- 5283 is also now accessible toll-free from the Commonwealth.

In CNMI, U.S. immigration law currently only applies to immediate relatives of U.S. Citizens. Come June 1, 2009, when the transition period is scheduled to being, U.S. immigration law in general will be applied to the CNMI, according to USCIS.

On May 8, 2008, President Bush signed into law Public Law 110-229, the Consolidated Natural Resources Act (CNRA) of 2008.  Title VII of this law amended P.L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States.  Title VII extends certain provisions of the Immigration and Nationality Act (INA) to the CNMI for the first time in history, according to USCIS.

Pilot Program To Expedite Entry Into U.S. For Citizen, LPR Travelers

U.S. citizens, nationals, and permanent residents will soon be eligible for a pilot program enabling expedited clearance of pre-approved, low-risk air travelers into the United States, according to a new rule published in the Federal Register.

The International Registered Traveler (IRT) pilot project, a.k.a. Global Entry, is scheduled to start June 10, 2008 at  John F. Kennedy International Airport, Jamaica, New York (JFK); the George Bush Intercontinental Airport, Houston, Texas (IAH); and the Washington Dulles International Airport, Sterling, Virginia (IAD), and may expand to other locations as announced.

CBP is working with other countries, exploring expansion of the program to include other categories of travelers as well.

Applications to participate in the pilot program should be submitted May 12, 2008, but will be accepted throughout the duration of the pilot program. The pilot program is expected to continue for at least six months. The time frame of the pilot program will vary, depending on the progress of CBP’s evaluation of the program.

The program enables participates to by-pass regular passport control primary inspection lines, using instead automated kiosks to verify identity via fingerprint biometrics technology, explains the Rule.

The procedure will also involve responding to several customs declaration questions by use of a touch-screen.

Upon verification, the traveler will receive a receipt, which, along with his passport and/or permanent resident card, he then gives to the CBP Officer at the exit control area for examination.

The application for the IRT pilot is available on-line through the Global On-Line Enrollment System (GOES).

There is a $100 non-refundable application fee.

CBP has posted a FAQ on its site.

H-1B Lottery Scheduled For Next Week

The H-1B lottery for FY 2009 is expected to start next week, USCIS announced.

Using a computer-generated random selection process, USCIS will start with the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree exemption will join the lottery for the regular 65,000 cap.

USCIS received almost 163,000 H-1B petitions during the filing period ending on April 7, 2008. More than 31,200 of those were for the advanced degree exemption, according to USCIS.

These numbers are up from last year’s preliminary figures, when USCIS reported receiving 133,000 filings, overall within the first two days of the April 1, the opening day of the filing season for the upcoming fiscal year.

In addition, unlike this year, the advanced degree cap was not immediately reached last year, with 12,989 being filed in connection with the opening-day rush.

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. 

How to Report Suspected Criminal Violations by USCIS Employees

Immigration officers are required to abide by standards of integrity and efficiency, and if they do not, the U.S. government wants to know about it.

You may report suspected criminal violations, misconduct, wasteful activities, and allegations of civil rights or civil liberties abuse to the DHS Office of Inspector General.

To make a report, call 1-800-323-8603 or email DHSOIGHOTLINE@DHS.GOV.

Calls can be made anonymously and confidentially.

For more information, see the Office of Inspector General web page.

USCIS, FBI Announce Plan to Eliminate Name Check Backlog

USCIS and the FBI have announced a joint plan to eliminate the name check nightmare that holds up processing of applications, such as for green cards and naturalization.

The agencies say they will obtain their new processing goals “by increasing staff, expanding resources, and applying new business processes,” according to a USCIS press release.

The agencies have set the following milestones for name check processing:

May 2008 – Process all name checks pending more than three years

July 2008 – Process all name checks pending more than two years

Nov. 2008 – Process all name checks pending more than one year

Feb. 2009 – Process all name checks pending more than 180 days

June 2009 – Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.

Round Up of Individual Woes Across the U.S.: How H-1B and H-2B Employment Visa Caps Are Hurting the Economy

Headlines across the country in recent weeks have been sharing a common theme describing the consequences to the American economy caused by the insufficient availability of H-1B professional work visas and H-2B seasonal work visas.

The technology and other industries say they are having to relocate high-paying jobs abroad because they cannot find qualified Americans to fill them in the United States, and they cannot bring in professionals from overseas because the H-1B visas, capped at 65,000, with an additional 20,000 for those with advanced degrees from the U.S., are too limited for the need.

Meanwhile, seasonal industries that support the U.S. economy, including fishing and tourism are simply closing down because the owners cannot find American workers and cannot obtain H-2B visas to bring in foreign workers because of a similar cap on availability. For example, on the Gulf Coast, the seafood companies could not find enough home-grown crab pickers, so they are now having to import crab meat from Latin America to meet local demand.

Naturalization Interviews To Be Held Weekends, After Hours

If you receive your notice for a naturalization interview and it is schedule for the weekend or after hours, it was not a mistake.

USCIS said it is expanding its hours and staff to help respond to the deluge of naturalization applications received last year.

In pursuit of its processing time goals, USCIS will be interviewing applicants on Saturdays, Sundays and during the week after traditional work hours.

Estimated Processing Times For Summer Surge Naturalization Applications Reduced to 14-16 Months

USCIS has reduced its processing time projections to 14-16 months for naturalization applications filed during the surge last summer, increasing the chance yours will be approved in time to vote in the November presidential election, according to a recent statement.

Processing times were originally estimated to be between 16-18 months.

USCIS reports that during FY 2007, it received approximately 1.4 million naturalization applications. In the months of June and July of 2007 alone, it experienced an increase of nearly 350 percent compared to the same period in 2006.

The summer surge is attributed to a desire to beat the fee increase and to stepped up campaigns promoting naturalization in anticipation of the upcoming presidential election.

Survey Shows State Legislation Relating To Immigration Skyrockets in 2007

The National Conference of State Legislatures has compiled a comprehensive list of immigrant-related legislation passed by states in 2007.

State efforts to legislate immigrant-related matters skyrocketed last year as at least 1562 pieces of legislation addressing immigrant-related concerns were introduced across the nation, representing an increase of almost three times more bills than in 2006 (570), according to the NCSL.

Of these bills, 240 became law in 46 states. Governors have vetoed 12. By comparison, in 2006, 84 new laws were enacted.

The new pieces of legislation, some friendly, some hostile, touch on numerous policy areas, including employment, health, identification, driver’s and other licenses, law enforcement, public benefits, and human trafficking.

With so many states developing their own ways of handling the various issues, however, this inconsistency is bound to create conflict and confusion, especially with our ever-mobile citizenry.

Immigration normally is left to the federal government to regulate rather than the states. In the wake of the failed comprehensive immigration reform package last year, however, states have taken matters into their own hands to the extent allowed by law. Which laws will stand up under judicial scrutiny remains to be seen. Arizona, though, so far has survived a challenge relating to its new law imposing sanctions on employers who knowingly hire undocumented workers.

See also our previous story on this same issue: Summary of State Laws Reacting to Undocumented Immigrants. 

Updated Q and A Re USCIS’ New Name Check Policy Now Available

USCIS has posted an updated Q & A regarding the new policy allowing for adjudication of certain applications, including those for permanent residence, if name checks have been pending for more than 180 days.

Here are two of the key questions addressed in the updated Q & A about when applicants may expect to receive news about their case.

Q9. How long will it take for USCIS to work through the cases affected by the policy change?

A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly.

USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid-March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?

A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

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.

Status Update Available March 30 For Processing Of Employment-Based Green Cards Under New USCIS Policy On Pending FBI Name Checks

USCIS has moved up the date to March 30, 2008 for seeking status updates on employment-based green card cases that may be eligible for processing in light of the change in policy regarding pending FBI name checks, according to AILA.

Previously, USCIS had said it would need until April 30, 2008 to sweep its files and identify cases subject to processing in light of the new policy. AILA is reporting now, however, that USCIS service centers say they will accept requests on status updates for employment-based cases effective March 30, 2008.

USCIS has made available to AILA a series of questions and answers regarding this new policy and its implementation that we have posted here.

For more background information see our other articles CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

USCIS To Take 3 Years to Clear Naturalization Backlog; Processing Time Up To 18 Months Now

USCIS is estimating it will take three years to clear the backlog of naturalization applications submitted just before the fee increase in July 2007, according to the Migration Policy Institute.

Following the summer surge, applications went from taking 6-7 months on average to process to 16-18 months.

USCIS attributes the surge in applications to both the fee increase and nationwide naturalization campaigns in the run-up to the presidential election. USCIS reports that between May-July 2007 it received 737,223 applications, 3.5 times more than  the usual number of 207,536 received during the same period the previous year, according to the Migration Policy Institute.

USCIS says it has beefed up manpower to deal with the volume, but anticipates it will be 2010 before processing times will drop back to those pre-surge.

While discussing its efforts to address the surge, USCIS makes no mention of how it plans to combat the multi-year delay of thousands of naturalization applications due to pending FBI name checks.

Immigration attorneys nationwide have been forced to address these delays by filing a mandamus lawsuit in federal court against DHS/USCIS and the FBI to compel the government to finish processing the applications. For more information about mandamus lawsuits, please visit AILF (the American Immigration Law Foundation), which is tracking mandamus actions against the government for delays of both naturalization and adjustment of status (I-485) applications.

CIS Sweeping Files For Green Card Cases Eligible For Processing Under New Policy

In response to the new policy allowing for processing of green card cases and other applications with FBI name checks pending for more than 180 days, USCIS is sweeping its files looking for eligible cases, according to AILA.

AILA’s service center operations liaison confirmed USCIS is proactively searching for those adjustment of status cases that can be processed now under the new policy. USCIS told AILA its target date for identifying and acting on eligible cases is April 30, 2008.

AILA national and local offices will continue to monitor USCIS’s actions in light of the new policy. Our site will provide updates as the situation develops.

For more information, see our other articles: How You Can Use the New CIS Name Check Policy to Jump Start Your Stalled Case and CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks 

How You Can Use The New CIS Name Check Policy To Jump Start Your Stalled Case

How can you take advantage of the USCIS memo this week that certain applications, including those for green cards, may be approved if name checks have been pending for more than 180 days?

AILF offers the following suggestion: If your application has been pending for more than 180 days, and otherwise meets the prerequisites described in the new policy, you may send a demand letter to the agency with the new policy memo attached requesting immediate adjudication of your application.

AILF explains that this demand letter may cause the agency to move more quickly to finish processing your case. On the other hand, if it does not prompt any action, AILF points out that the letter may be helpful if you later decide to file a mandamus lawsuit on the grounds that the agency is not implementing its new policy.

In addition, if you have a pending court action, such as a mandamus action, to which the memo would apply, AILF suggests filing a motion with the court with the USCIS memo attached so as to alert the court to the change in agency policy. The motion should state that all prerequisites for immediate adjudication have been met as required by the new policy:

1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485);

2) the FBI fingerprint and IBIS check have been completed and;

3) the FBI name check request has been pending for 180 days.

The motion may request that the court issue an order remanding to the agency for immediate adjudication of the application.

AILF further advises that if you are unsure whether the delay in the adjudication of your application is caused by FBI name check delays, you may nevertheless consider sending a demand letter to USCIS with the new policy memo attached.

AILF’s suggestion stems from its observation that the memo does not say that the new policy only applies prospectively. Therefore, AILF explains, the memo affects all applicants whose FBI name check requests have been pending for 180 days.

To read the memo outlining the new policy, click here.

In addition to green cards (I-485, Applications for Adjustment of Status), the new policy applies to: Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

Unfortunately, it does not apply to Applications for Naturalization (N-400), which has also been the victim of lengthy delays and the subject of numerous mandamus lawsuits across the country.

For more information see our article CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

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.

CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks

Pending FBI name checks will no longer hold up CIS approval of green cards or several other immigration applications thanks to a new government policy issued this month.

Unfortunately, this policy will not help naturalization applications, which have also been a victim of these name check delays, often pending for 4 or more years. These delays prompted numerous mandamus lawsuits across the country to compel the FBI and USCIS to adjudicate the applications.

The new policy guidance says CIS can now approve a green card application (Form I-485) that has been pending fore more than 180 days awaiting FBI name check clearance, provided the application is otherwise approvable. Other clearances for fingerprints and IBIS (Interagency Border Inspection Services) checks must still be finished before CIS will adjudicate an application.

This new policy will help address lengthy delays in processing caused by the FBI’s failure to complete a name check in a timely manner.

This policy also applies to applications for wavier of ground of inadmissibility (Form I-601), applications for status as  temporary resident under Section 245A of the INA (Form I-687), and applications to adjust status form temporary to permanent resident under 245A (Form I-698).

If a name check reveals derogatory or adverse information, CIS will then determine if rescission or removal proceedings are warranted.