Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Special Guidance on ICE Final Rule, Effective September 14, 2007, on Social Security “No-Match” Letters
Breaking News • August 30, 2007
Over the past several years, the Social Security Administration (SSA) has issued thousands of so-called “no-match” letters to employers around the country. These letters advised employers that certain Social Security Numbers (SSN) that were provided to the SSA by employers (vis-à-vis employees) for withholding purposes for prior tax years do not match the names of the individuals that SSA has on file for such numbers. Although not always the case, no-matches are often caused by employees who are not authorized to work in the United States (and are using either a false SSN or an SSN assigned to someone else). Read on…
ICE Final Rule on Safe Harbor Procedures for Employers Who Receive SSA “No-Match” Letters
Breaking News • August 16, 2007
As part of the Department of Homeland Security’s (DHS) stepped up worksite enforcement initiatives, U.S. Immigration and Customs Enforcement (ICE) released an advance copy of its final rule relating to the unlawful hiring or continued employment of unauthorized foreign nationals, which imposes significant new obligations on employers. The rule describes the legal obligations of an employer who receives a “no-match” letter from the Social Security Administration (SSA) or a letter regarding I-9 employment verification forms from DHS. A “no- match” letter is a letter sent by the SSA notifying an employer than it has submitted reports such as W-2s that contain names and social security numbers that do not match SSA records. This new regulation provides “safe harbor” procedures an employer can follow to resolve mismatches and thus avoid an allegation that it had “constructive knowledge” that such referenced employees were unauthorized to work. Based on such “constructive knowledge,” an employer could be subjected to criminal and civil penalties if the employer continued to employ the worker.
We will provide further analysis and guidance on how employers can implement the new required procedures in order to avoid liability and potential civil and criminal penalties. See our “I-9 and Related Issues” section of our web site, where updated guidance will be posted soon.
The rule is expected to be published in the Federal Register as early as this week and will become effective 30 days after publication.
USCIS Addresses Employment-Based Adjustment of Status Questions
For the uninitiated, employers and employees had their heads spun during July because of rapidly changing and often conflicting governmental policy positions on who can file for permanent resident (“green card”) status. We have covered the twists and turns as they have unfolded in Special Alerts, and directly with our clients. Read on…
Adjustment of Status Travel Advisory
Employees, managers, and human resource personnel all must be very mindful of special rules which govern travel abroad by foreign nationals while their application for adjustment of status to permanent resident is pending. Read on…
Labor Certification Update
DOL presently is rendering decisions in PERM cases which have been pending for some months.
The Department of Labor (DOL) continues to process cases filed under the old system at their Backlog Elimination Center (BEC) along with the newer fast-track PERM cases. DOL reports that as of July 20, 2007 their BECs have 28,300 left to be processed. Fewer than 1,000 of these cases are Reduction in Recruitment (RIR) cases, and the rest are traditional cases that require DOL supervised recruitment. Only two years ago, more than 200,000 labor certification applications filed under the old system remained pending.
Meanwhile, after a slow down in the processing of PERM cases, for whatever reason, DOL presently is rendering decisions in PERM cases which have been pending for some months. PERM promised fast-track labor certification processing, and there is no question that under PERM the processing is much faster than under the old system. Nonetheless, recently there has been a slow down in PERM processing which now appears to have come to an end, at least for now.
Driving Under the Influence (DUI) and Visa Processing
The DOS has issued new guidelines regarding how consular officers should handle cases where a visa applicant’s record shows an arrest or conviction for drunk driving or another alcohol-related offense. DOS notes that while a drunk driving conviction is not a statutory ground for visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the visa applicant is ineligible for a visa because the applicant has “a physical or mental disorder and demonstrates behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.” In the case of both immigrant and nonimmigrant visa applicants, consular officers are required to refer the applicant back to a DOS approved physician for further evaluation. DOS further advises that applicants must be referred to a physician for further evaluation, either if the applicant has a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests; or convictions at anytime. Thus, even a single arrest for driving under the influence can result in substantial delays in visa processing and issuance.
J-1 Update
The legacy INS and USCIS both, until recently, took the position that once a J-1 waiver is recommended by the Department of State (DOS), an application for a change of status to H-1B specialty worker, for example, could be filed with USCIS before INS/USCIS actually granted the waiver. Now it appears that USCIS will no longer permit this, even though USCIS virtually always approves DOS recommended waivers. This undoubtedly will cause unnecessary delays in employment authorization for many former J-1 visa holders.
Congress to Recess for August
As Congress wraps up its work before its August recess, both houses are now considering appropriations and authorization legislation, both of which could be vehicles for enforcement-only immigration “riders.” So far, none have been successful. A few other immigration-related laws, with only very modest, targeted immigration law fixes, are on the horizon. These include extending temporary protected status for Liberians until September 30, 2008 and allowing for the temporary rehiring of foreign service retirees to assist in reducing the current backlog in passport applications.
No News yet on TPS Re-Registration for Salvadorans
n May 2007, USCIS extended temporary protected status (TPS) designation for eligible nationals of El Salvador by an additional 18 months, or until March 2009; TPS was also extended at that time for Hondurans and Nicaraguans. While USCIS issued guidelines for re-registration for Hondurans and Nicaraguans in June 2007—and provided a 60-day period in which to do so—instructions for Salvadorans have not yet been released despite the current expiration date of September 9, 2007. See the articles on TPS in our May and June issues of Immigration News & Analysis. We expect USCIS to issue those guidelines shortly. (Please note: USCIS has advised that applications received prior to or after the registration period will be rejected.)