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.

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.

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.

India Hits Limit for EB-2 Visas for FY 2008

India has hit its annual limit for second-preference, employment-based immigrant visas (EB-2), meaning no more are available effective immediately, according to the February 2008 Department of State Visa Bulletin.

The category will remain unavailable for the remainder of fiscal year 2008, which ends Sept. 30, 2008. New numbers should be released Oct. 1, 2008.

Second-preference employment visas are those for members of the professions holding advanced degrees or persons of exceptional ability, including National Interest Waiver cases.

During the last couple of months, this category for India had been retrogressing due to heavy demand, signaling it would soon be oversubscribed. Between the November and December bulletins, the cut-off date moved from April 1, 2004 to Jan. 1, 2002, then in January it moved back to Jan. 1, 2000.

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.

EB-2: Advanced Degrees or Exceptional Abilities

Overview: The second-preference, employment-based immigrant visa is available to the following two subcategories of foreign nationals: 1) members of the professions holding an advanced degree or its equivalent or 2) foreign nationals who possess exceptional abilities in the sciences, arts, or business.

Once an approved labor certification is obtained through PERM or a foreign national qualifies for the streamlined labor certification process under Schedule A II, a foreign national can then file for an immigrant visa with USCIS.  (The PERM labor certification process is described in our other article PERM Labor Certification for Immigrant Work Visas and the Schedule A II process is described in Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability.)

Professionals holding an advanced degree or its equivalent

Eligibility criteria: To be eligible for this category, the foreign national must be working in certain fields deemed “professions” and must hold an advanced degree or its equivalent.

What types of jobs are considered “professions”?

The term “profession” includes, but is not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries. 8 CFR 101(a)(32). USCIS also considers professions to include any other occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.

What is considered an advanced degree or its equivalent?

An advanced degree means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the foreign national must have a U.S. doctorate or a foreign equivalent degree.

Supporting documentation required: To establish the foreign national holds an advanced degree, he or she will need to submit an official academic record showing that the foreign national has a United States advanced degree or a foreign equivalent degree.

To establish degree equivalency, the foreign national must submit an official academic record showing that the foreign national has a United States baccalaureate degree or a foreign equivalent degree, and letters from current or former employer(s) showing at least five years of progressive post-baccalaureate experience in the specialty.

Foreign nationals with “exceptional ability” in the sciences, arts, or business

Eligibility criteria: To be eligible for this category the foreign national must possess an “exceptional ability” in the sciences, arts or business and be offered a job in his area of specialty.

What is considered “exceptional ability.”

The 8 CFR 204.5(k)(2) defines “exceptional ability” as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The USCIS “exceptional ability” standard is different from that of DOL; it is actually a slightly lower standard. Thus, if a foreign national meets the DOL standard for exceptional ability he or she should also be able to meet the USCIS standard.

Supporting documentation: To establish “exceptional ability” the foreign national must submit supporting documentation for at least three of the following:

(A) An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the foreign national has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the foreign national has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards do not apply to the foreign national’s occupation, other comparable evidence of eligibility is also acceptable.

Application requirements: For either subcategory, the employer must file the labor certification (Form ETA 9089) and Form I-140 along with the requisite supporting documentation with USCIS. If the I-140 is approved, the foreign national can they apply for permanent residency (green card).

Employer requirement: The employer must establish it has the ability to pay the wage offered to the foreign national. Evidence of this ability can be in the form of copies of annual reports, federal tax returns, or audited financial statements. If the U.S. employer has 100 or more workers, USCIS may accept a statement from the company’s financial officer which establishes the ability to pay the proffered wage. In some cases, additional evidence, such as profit/loss statements, bank account records, or personnel records, may be submitted or requested by USCIS.

Quotas: There are worldwide and country-wide quotas. Whether a country is backlogged is shown on the monthly State Department visa bulletin. Visa availability and cut-off dates can change monthly, moving backwards or forwards. The countries that traditionally have been vulnerable to backlogs in the employment-based categories are China and India.

PERM Labor Certification for Immigrant Work Visas

What is labor certification?

Certain employment-based immigrant visas require approval from two different agencies: the Department of Labor (DOL) and USCIS. The approval required from the DOL is the first step and is known as labor certification.

To obtain labor certification from DOL, the employer must establish no Americans are qualified for and want the particular job and the employment of a foreign national will not adversely affect the wages and working conditions of similarly employed US workers. The process for doing so is known as PERM, which stands for Permanent Electronic Review Management.

(Please note: The PERM labor certification process for EB-2 and EB-3 categories is not necessary if the foreign national possesses an “exceptional ability” in the sciences, arts or performing arts, known as Schedule A II occupations. See our related article Avoiding Labor Certification: Schedule A II Occupations – Exceptional Ability)

What are the requirements of PERM

PERM describes the recruitment procedures an employer must follow in order to obtain a labor certification from the DOL. The PERM procedures vary somewhat depending on whether the job is a professional or non-professional job. Also, special procedures exist for sheepherders, college or university teachers and professors, and Schedule A occupations.

This article will only address requirements for professional and non-professional jobs.

General job requirements: The position offered must be full-time, permanent (as opposed to seasonal or temporary) and it must be a bona fide job opening available to U.S. workers. The employer must pay at minimum the prevailing wage for that type of position in the region of intended employment.

The job requirements must conform to what is normally required for the occupation in the United States. It may not be tailored to the desired foreign worker’s qualifications and it cannot be unduly restrictive, such as requiring foreign language capability, unless these restrictive requirements can be established to arise out of business necessity.

Recruitment steps: PERM requires the employer to follow a series of recruitment steps, the details of which differ depending on if the job is a professional or non-professional occupation.

Professional Occupations

20 CFR 656.3 defines a professional occupation as “an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.” Work experience may be accepted in lieu of a degree, however, provided certain PERM recruiting and application procedures are followed. Generally, the law requires that if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience must be attainable in the U.S. labor market and must be stated on the application form. If the employer is willing to accept an equivalent foreign degree, it must be clearly stated on Form ETA 9089, the Application for Permanent Employment Certification form.

In addition, alternative recruiting procedures exist for college and university teachers, which is outside the scope of this article.

Types of advertising: There are several forms of advertising and recruitment an employer must conduct as part of the labor certification process, including:

• Mandatory advertising:  There are two forms of mandatory advertising: The position must be advertised 1) via a job order placed with the state and 2) in two print advertisements (i.e. Sunday newspaper and a professional journal).  This advertising must be conducted at least 30 days, but no more than 180 days, before the filing of the application.

• Additional recruitment steps: The employer must do at least three of the 10 recruiting steps named in the list below. Only one of these additional steps may consist solely of activity that took place within 30 days of the filing of the labor certification application. None of the steps may have taken place more than 180 days prior to filing the application.

1. Job fairs.

2. Employer’s Web site.

3. Job search Web site other than the employer’s.

4. On-campus recruiting.

5. Trade or professional organizations.

6. Private employment firms.

7. Employee referral program with incentives.

8. Campus placement offices.

9. Local and ethnic newspapers.

10. Radio and television advertisements.

Non-Professional Occupations

For a non-professional job, the employer must at a minimum, place a job order with the state and advertise in two different Sunday editions of a general circulation newspaper. The steps must be conducted at least 30 days but no more that 180 days before the filing of the application.

No other recruitment steps are required.

Labor Certification Employee Notice Requirement: The employer must give notice of the intent to file a labor certification application in connection with the available position to the employees’ bargaining representative. If no such representative exists, the employer must inform its employees by posting a notice in a conspicuous place at the job site for 10 days. This posting must take place between 30 and 180 days of filing the labor certification application. The notice must also be published on any in-house media.

 

Post-advertising requirements: After advertising, the employer must interview all qualified candidates who responded to the advertisements. For all candidates not selected, the employer must document the reason. The employer must prepare a recruitment report for submission to the DOL describing the recruitment steps taken and the outcome.

Employers must keep in mind that a U.S. worker is considered qualified for the job if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the-job training. In other words, an employer cannot reject a U.S. worker because he lacks the necessary skills if that worker can acquire the skills through on-the-job training.

The employer must maintain documentation of the recruitment and be prepared to submit this documentation in the event of an audit or in response to a request from the DOL prior to rendering a final determination.

Application Process: Once the recruitment phase is finished the employer will fill out DOL Form ETA 9089, Application for Permanent Employment Certification and file it electronically with the DOL. Paper submissions are also accepted. When an approved labor certification is received, the employer may then file the I-140 immigrant visa petition. Upon receiving an approved I-140, the foreign national can then apply for an immigrant visa at his home consulate. If the foreign national is already in the U.S. he can apply for permanent residency based on the approved I-140.

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.

L-1 Intracompany Transferee

The L-1 visa is a non-immigrant visa for employees of multinational companies who are being transferred to work temporarily in the U.S. at an affiliate company in either a managerial or executive capacity (L-1A) or a specialized knowledge capacity (L-1B). The L-1 foreign national is called an “intracompany transferee.”