DHS Issues Directive on Electronic Media Searches at U.S. Ports of Entry

Janet Napolitano, Secretary of the Department of Homeland Security (DHS) announced today that the agency will begin new directives to “enhance and clarify” oversight for searches conducted on computers and other forms of digital media at U.S. ports of entry.

This new directive details the circumstances in which DHS agencies (CBP, ICE) can conduct searches of electronic media at ports of entry; these circumstances are similar to the justifications for searching other “sensitive” material, such as briefcases, backpacks and notebooks.

“Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,” said Napolitano. “The new directives announced today strike the balance between respecting the civil liberties and privacy of all travelers while ensuring DHS can take the lawful actions necessary to secure our borders.”

This directive, promoted today by DHS, comes just one day after the American Civil Liberties Union (ACLU) filed a Freedom of Information Act lawsuit against the agency, asking for clarification of its search policy and the impact that policy has had on the civil liberties of travelers at U.S. ports of entry over the past year. This is the ACLU’s second request for information; it’s first occurred in June of this year.

ACLUE has commented that current policy allows for government agents to read information on travelers’ laptops and other digital media, without any particular and individualized suspicion. This includes information such as personal financial data, photographs and web browsing history.

The new DHS directive, according to DHS, will “ensure training materials and procedures promote fair and consistent enforcement of the law relating to electronic media searches.” Travelers that are being searched will also now receive material that lets them know the reasons for the search, how the data discovered might be used and additional information about the traveler’s constitutional and statutory rights.

Global Entry Program Expands to 13 New Airports

In order to streamline international travelers’ process to enter the U.S. at a port of entry, U.S. Customs and Border Protection (CBP) has implemented a kiosk system, in which passengers can verify their identities without having to wait in long lines. The ‘Global Entry’ program uses kiosks that look like ATMS to let international travelers swipe their passports and scan their fingerprints. Such visitors can complete the required identity verification processes to re-enter the U.S. in a fraction of the time they have traditionally spent.

The Global Entry kiosks are being introduced this week in a total of 13 new airports across the U.S. and can be used only by U.S. citizens and permanent legal residents. The kiosk system has been tested for the past year in 7 airports and more than 15,000 travelers have signed up for the program, which costs $100 and involves a detailed background check. After rollout, a total of 20 airports will use the kiosk verification technology.

Learn more or register online at: http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/.

Some Religious Workers Considered Unlawfully Present or Unauthorized to Work May Seek Adjustment of Status

Religious workers are reminded that an essential deadline for certain applications will soon be pending. According to a court ruling in Ruiz-Diaz v. United States, applicants who have had Form I-360 Religious Worker Immigrant Petitions pending as of June 11, 2009, and are currently considered unlawfully present or unauthorized for employment in the U.S., are able to submit an Application for Adjustment of Status. If your Application for Adjustment of Status is properly submitted by August 31, 2009, consideration of you as unlawfully present or unauthorized to work will be tolled until USCIS reaches a final decision on your case.

Individuals under the above category who are in removal proceedings should consider seeking termination of those proceedings so that they may file their Application for Adjustment of Status by the August 31 deadline.

DHS Publishes Notice to Rescind 2007 No-Match Rule

The Department of Homeland Security (DHS) has just published a notice in the Federal Record in which it rescind previous amendments related to how employers should respond when they receive no match letters. This recent notice calls for rescinding the August 2007 No-Match Rule and the 2008 Supplemental Final Rule.

The original 2007 rule described the obligations employers had when they received no-match letters from the Social Security Administration (SSA) or a letter regarding employment verification from DHS. These letters are sent when an employee’s stated Social Security number does not match the numbers in the SSA’s existing database. In addition the 2007 rule provided ‘Safe Harbors,’ rules employers could follow that would establish that the employer did not have knowledge that the employee in question was an unauthorized alien. If an employer is shown to have knowledge of an employee’s unauthorized status, that employer can be subject to civil and criminal penalties.

The current notice comes as DHS now believes they have created substantial improvements in E-Verify program (the electronic employment verification system) and other federal programs to provide the resources employers need to reduce instances of unauthorized employment. DHS believes that a better use of resources would be to focus efforts on enforcement and community outreach to “increase compliance through improved verification, including increased participation in the USCIS’s E-Verify employment eligibility verification system, the U.S. Immigration and Customs Enforcement’s ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

Department of Labor Comments on Errors in Certifying Employer Federal Employer Identification Numbers

It has been noted that multiple U.S. employers have been having problems receiving approvals for Labor Condition Applications (LCAs), that are required to request H-1B petitions as part of the iCert program. These problems occur in cases where the Department of Labor is unable to verify the requesting employer’s Federal Employer Identification Number (FEIN), and, in some cases, occurs even when employers correctly enter in this information.

The Department of Labor has recently amended the error notice that is created in instances where there is an error related to an employer’s FEIN. The new error notification provides detailed instructions on how the employer can provide and submit documentation to the Department of Labor. Please note that this additional process may extend the time it takes the Department of Labor to process the request.

The iCert program, according to the Department of Labor, is a “one-stop to improve access to employment-based visa application services and USDOL immigration news and information.” It is available online at http://icert.doleta.gov/ and can be accessed 24 hours a day, 7 days a week.

USCIS Now Accepting H-2B Visa Applications for FY 2009

After receiving less H-2B visa applications than expected from employers this year, USCIS has again begun accepting applications for this visa category. The H-2B visa, which provides temporary entry into the U.S. for semi-skilled workers, has an annual cap of 66,000. So far, USCIS has only issued just over 40,000 of these visas for this fiscal year (ending September 30). “Because of the low visa issuance rate, (U.S. Citizenship and Immigration Services, USCIS) is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign non-agricultural workers,” reported USCIS.

The H-2B program enables employers to bring in temporary foreign workers to fill non-agricultural positions for which there is a shortage of U.S. workers. These positions are typically in areas such as health care, food service, landscaping and construction. In previous years, there was a high demand for these workers and, typically, the amount of applications received were much more than the 66,000 annual cap. However, this year, as we’ve seen with the H-1B program, the global recession has greatly affected employer needs for H-2B workers.

USCIS Updates a Series of Immigration-Related Medical Forms

USCIS has updated a number of immigration-related medical forms, all of which are now available for use and download. According to USCIS, all consular posts should now start using the new forms DS-2053, DS-3024, DS-3026 and DS-3025 and discontinue the use of older versions of these forms. Forms DS-3054 and DS-3030 include changes and updates that were made to the Centers for Disease Control and Prevention’s Technical Insrtuctions. CDC is currently in the process of updating the 2007 Tuberculosis Technical Instruction to all consular posts.

The updated medical forms include the following:

DS-2053 – Medical Examination for Immigrant or Refugee Applicant

DS-2054 – Medical Examination for Immigrant or Refugee Applicant

DS-3024 – Chest X-Ray and Classification Worksheet

DS-3030 – Chest X-Ray and Classification Worksheet

DS-3026 – Medical History of Physical Examination Worksheet

DS-3025 – Vaccination Documentation Worksheet

USCIS Increases Amount of Worksite Audits

Current feedback has revealed that USCIS has greatly increased the amounts of surprise visits to the worksites of U.S. employers of H-1B and L-1 visa beneficiaries. According to anecdotal information, agents of USCIS have been coming to worksites with a list of questions they are asking all employers, regardless of company size. The goal of these visits is to ensure the identity of the petitioner and beneficiary, and to make sure that the beneficiary is working within the terms of the visa they have received.

It should be noted that, so far, these agents are arriving at employer locations without the authority to enter the worksite and request entry and employer consent. Legally, employers have the right to deny these agents entry into their worksites at that time.

It is essential that employers prepare for these potential audits ahead of time by collecting and having ready all necessary materials and proof of compliance for these agent representatives. Please contact us for more information and guidance regarding this increase in worksite audits.