US Business Groups File Lawsuit Against New E-Verify Requirement for Government Contractors

Last week a number of business groups, including the U.S. Chamber of Commerce, the Associated Builders and Contractors, the Society for Human Resource Management, the American Council on International Personnel and the HR Policy Association, filed a lawsuit against Michael Chertoff, the Secretary of the Department of Homeland Security (DHS). The lawsuit purports that DHS can not legally require federal contractors to use the E-Verify online worker verification system.

Recently, DHS issued a mandate (signed into law by President Bush) that some federal contractors and subcontractors will be required to use the E-Verify to check the employment eligibility of all new hires and some continuing hires as of January 15, 2009. The lawsuit, filed on December 23, is asking the U.S. District Court to proclaim that the executive order illegal due to the fact that the law states that no persons or businesses should be required to participate in the E-Verify online program, with the exception of federal agencies, the legislative branch of the U.S. government and some groups that have previously violated immigration law.

The new system, the lawsuit claims, would create a significant burden on many companies required by the new law to use the E-Verify system. DHS, however, has stated that the current lawsuit is simply a method to delay the active requirement that some federal contractors and subcontractors use the E-Verify system in January 2009. E-Verify is already successfully being used by more than 90,000 employers, said a spokesperson of DHS.

USCIS Updates Number of H-2B Visas Petitions Received for the Second Half of FY 2009

USCIS has updated the count of H-2B visa petitions received and counted toward the H-2B cap for the second half of FY 2009. According to USCIS, as of December 26, 2008, 29,702 petitions have been counted toward the 33,000 available visas for this fiscal year period. This is an increase of more than 2,000 petitions since the last count. On December 19, 27,111 petitions had been counted toward the cap.

The H-2B visa gives U.S. employers involved in industries with peak load, seasonal or temporary needs the capacity to utilize temporary nonimmigrant workers to fulfill their staffing needs. H-2B visa workers typically work in areas such as construction, farming, health care, landscaping and hospitality services. In 2005, the Save Our Small and Seasonal Businesses Act was passed; this Act divided the visa category’s annual cap of 66,000 available visas into two halves. USCIS enables companies to submit these filings six months in advance of the staffing need.

USCIS Posts Revision to Location to File Certain Applications for Naturalization

USCIS has revised its Direct Mail Program; now, certain filings of Form N-400, the Application for Naturalization, should be fined at a designated lockbox facility, as opposed to a USCIS Service Center. In addition, spouses of current members of the U.S. Armed forces should now file their Application for Naturalization at the Nebraska Service center, regardless of whether you are filing from within or outside the U.S.

Please note that USCIS’s notice does not change the filing location for Applications for Naturalizations filed by members and some veterans of the U.S. Armed Forces who are eligible to apply for naturalization based on their military service. Those individuals should continue to file their Applications for Naturalization at the Nebraska Service Center, regardless of their location. This notice will become effective January 22, 2009.

If you reside in the following states or regions:

Alaska, Arizona, California, Colorado, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oregon, South Dakota, Utah, Washington, Wisconsin, Wyoming, the Territory of Guam and the Northern Marina Islands

You should mail your application to:

USCIS Lockbox Facility
PO Box 21251
Phoenix, AZ

If you are using courier or express mail deliveries, you should mail your application to:

Attn: N400
1820 Skyharbor Circle S, Floor 1
Phoenix, AZ 85034

If you reside in the following states or regions:

Alabama, Arkansas, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, West Virginia and the U.S. Virgin Islands

You should mail your application to:

USCIS Lockbox Facility
PO Box 299026
Lewisville, TX 75029

If you are using courier or express mail deliveries, you should mail your application to:

Attn: N400
2501 S State Hwy 121, Bldg #4
Lewisville, TX 75067

An Update on Current USCIS Office Closings

A number of USCIS offices are closed today due to inclement weather. USCIS has noted that the following offices are closed today:

Detroit, Michigan Field Office
Milwaukee, Wisconsin Field Office
Seattle, Washington Field Office

In addition, the Southeast Application Support Center in Houston, Texas remains closed due to severe damage caused by Hurricane Ike.

USCIS also notes that all USCIS offices and Application Support Centers will be closed on Thursday, December 25 and Friday, December 26 to observe the Christmas holiday.

USCIS Publishes Interim Rule Making Changes to Form I-9

USCIS announced late last week that it has submitted an interim final rule to streamline the I-9, Employment Eligibility Verification process. This interim final rule will limit the number of documents accepted to provide proof of identity; in addition, it clarifies that expired documents will not be accepted as proof of identification. According to USCIS, by limiting the list of documents acceptable as proof of identification, the organization is making it easier for employers to verify valid and acceptable forms of identification and to rule out false documents.

U.S. employers are required by law to complete a Form I-9 for all new employees to verify their identity and that they have authorization to work in the U.S. There are three lists of accepted documents in the form’s instructions: documents in List A verify identity and employment authorization; documents in List B verify just identity; and documents in List C verify just employment authorization.

This interim rule will eliminate as acceptable forms of identification Forms I-688, I-688A and I-688B, the Temporary Resident card (and older versions of the Employment Authorization card). These cares are no longer issued by USCIS; all cards that have been issued are now expired. In addition, the interim rule adds to the first list of acceptable documents (List A) foreign passports that contain marked and machine-readable visas and documentation for some citizens of the Federated States of Micronesia and the Republic of the Marshall Islands. Finally, the interim rule makes a series of additional changes, including revisions to the employee attestation section and the addition of the U.S. Passport Card to the first list.

Employers will be required to use the revised Form I-9 for all new hires and to re-verify any existing employees with employment authorization that has expired within 45 days of publication of this rule in the Federal Register. Once this 45 day period has passed, the current version of Form I-9, dated June 5, 2007, will no longer be valid.

U.S. to Recruit Nonimmigrants for Doctor, Nurse and Foreign-Language Specialist Roles in U.S. Military

The U.S. Military has started renewed efforts to recruit more foreigners living in the U.S. under legal status to assist in certain wartime duties for the Army, Navy, Air Force and Marines. The U.S. Military is currently facing a shortage of doctors and nurses to provide much needed medical care to U.S. troops and personnel with foreign language skills to assist in foreign countries.

The new program, which would open up the potential recruitment force for the military, has certain requirements. To be eligible under the program, an applicant must have lived under legal status in the U.S. for at least two years as a refugee, asylum seeker or under ‘temporary protected status. Alternatively, the applicant could have been in the U.S. for two years under particular other nonimmigrant categories. In addition, the applicant cannot have traveled outside the U.S. for more than ninety days at a time within the two years prior to the first date of military service.

Doctors and nurses accepted under the new program will be required to serve a minimum of three years of active duty or a minimum of six years in the Selective Reserve. Foreign language specialists will be required to serve four years of active duty. In return for their service, these new enlistees would be provided with an accelerated path toward U.S. citizenship.

USCIS Announces Changes to Streamline H-2A Program

USCIS announced today that they plan to make a series of changes to the H-2A visa program to streamline the process of hiring temporary and seasonal agricultural workers. The final rule, which should be published shortly, will “facilitate the H-2A process for employers by removing certain limitations and will further encourage lawful employment,” according to USCIS.

U.S. employers use the H-2A visa program to gain access to foreign workers to fill temporary or seasonal agricultural positions, when U.S. workers are not available. Once a petition for an H-2A visa is approved, these employers can then hire foreign nationals to fill these roles for a certain period of time.

USCIS’s final rule will enhance the integrity of the H-2A program, including provisions to increase protection of both U.S. and foreign workers. The final rule includes methods to broaden H-2A employers’ capacity to petition for multiple, unnamed agricultural workers, extend the time that an H-2A worker can remain in the U.S. after the expiration of his/her H-2A period of stay from 10 to 30 days, and reduce the time that an H-2A worker must spend outside the U.S. before being eligible to re-obtain H-2A status from 6 to 3 months. Other key provisions include measures to prohibit H-2A employers and recruiters from charging any fees on H-2A workers as a condition of employment and measures that require an approved temporary labor certification to be connected to each H-2A petition.

This final rule will be published in the Federal Register shortly.

U.S. Now Has More Than 18,000 Border Patrol Agents

After an intense recruitment drive, started after current president George Bush called for doubling of the Border Patrol workforce during his presidency, the U.S. Border Patrol now comments that it has reached that goal. Earlier this week, Michael Chertoff, secretary of the Department of Homeland Security announced that the agency now has just over 18,000 Border Patrol guards.

Parts of the recruitment drive included NASCAR sponsorships and billboards across the U.S. border with Mexico. While this achievement is a note of success for the Department of Homeland Security, some people note the challenges that lay ahead for this department. These challenges include the U.S. Border Patrol’s ability to adequately provide field training for this influx of rookie agents and a low supervisor to agent ration in the Patrol. Further, the Border Patrol has a very high attrition rate. Roughly 30 percent of all agents leave the Patrol within the first year and a half of their employment, which will require the Border Patrol to continue its recruitment efforts well into the future.

President-Elect Obama Announces Heads of Immigration Policy Working Group

Last week, President-elect Barack Obama announced that he plans to create a number of policy working groups to help create proposals for multiple pending topics. One of those groups, the ‘immigration group,’ will be led by Alexander Aleinikoff and Mariano-Florentino Cuellar.

Aleinikoff, the dean of the Georgetown University Law Center and executive vice-presdient of Georgetown University, has years of experience in the field of immigration. During the Clinton administration, he served as general counsel and executive associate commissioner for programs at the INS (now USCIS). He was also a senior associate at the Migration Policy Institute.

Cuellar, currently a professor at Stanford Law School, previously held the position of senior advisor to the Under Secretary for Enforcement during the Clinton Administration. In that posting, he worked on topics related to domestic and international finance crime, border coordination issues and heeding corruption.