FLYNN & CLARK, P.C.
STEVEN A. CLARK

Ø      1. USCIS Releases New Form I-9 - USCIS has revised the I-9 Employment Eligibility Verification Form as a first step toward achieving the document reduction goals. Deadline: December 26, 2007.

Ø      2. No-Match Letters Will Not Be Sent This Year, SSA Says - The SSA will not send out no-match letters this year to employers, in response to a preliminary injunction. DHS will revise rule.

Ø      3. Basic Pilot Findings Released - The accuracy of E-verify, USCIS's database used for verifying employment authorization, needs further improvements.

Ø      4. Investors! USCIS Releases List of EB-5 Regional Centers – For investors seeking US permanent residence, see this! USCIS recently released a list of active approved EB-5 regional centers as of October 2007.

Ø      5. Department of State Issues Record Number of Student Visas - The Department of State announced that it has issued a record number of visas to students to study in the U.S.

Ø      6 Target and Whole Foods Market Charged with Discriminating Against Immigrant Workers - The charges allege that the companies illegally fired and suspended two immigrant workers who had presented clear evidence of their authorization to work in the U.S.

Ø      7. China, India Second Preference Cut-Off Dates Retrogress; Other Projections - The China-mainland born and India employment second preference cut-off dates both will retrogress in December; the Department of State also made other projections which may impact other countries.

Ø      8. DHS Releases Immigration Statistics – Want to know how many permanent residents and non-immigrants are being admitted to the US? Updated immigration statistics are available on the Department of Homeland Security's Web site.

Ø      9. Japan Begins Fingerprinting, Photographing Foreign Visitors - Those refusing to comply will be denied admission into Japan and will be returned to their port of origin.

Also in this issue:

Recent News from ABIL Members

Government Agency Links

Details...

1. USCIS Releases New Form I-9 – Deadline December 26, 2007

U.S. Citizenship and Immigration Services (USCIS) has revised the I-9 Employment Eligibility Verification Form. This is "as a further step in its ongoing work toward reducing the number of documents used to confirm identity and work eligibility," the agency said.

The most significant change to the I-9 is the elimination of the following five documents from List A of the List of Acceptable Documents:

• Certificate of U.S. Citizenship (N-560 or N-561)
• Certificate of Naturalization (N-550 or N-570)
• Alien Registration Receipt Card (I-151)
• Unexpired Reentry Permit (I-327)
• Unexpired Refugee Travel Document (I-571)

One document was added to List A of the List of Acceptable Documents:

·        Unexpired Employment Authorization Document (I-766)

All the Employment Authorization Documents with photographs that are in circulation are now included as one item on List A:

·        I-688, I-688A, I-688B, I-766

Instructions for the I-9 also now state that the employee is not obliged to provide the Social Security Number in Section 1 of the I-9, unless he or she is employed by an employer who participates in E-Verify (formerly known as “Basic Pilot” program). The section on Photocopying and Retaining Form I-9 now includes information about electronically signing and retaining I-9 forms.

Employers should begin using the amended I-9 "(Rev. 06/05/07)N" immediately for all individuals hired on or after November 7, 2007. The Department of Homeland Security (DHS) said it "recognizes that employers should be afforded a period of time to transition to the amended Form I-9." The DHS therefore will not seek penalties against an employer for using a previous version of the I-9 during a transition period, but that transition period ends on December 26, 2007. After the transition period, employers who fail to use the revised I-9 may be subject to penalties.

Employers only need to complete the new I-9 for new employees. Employers do not need to complete new forms for existing employees, but employers must use the revised I-9 when their employees require reverification.

The new I-9 form is available at http://www.uscis.gov/files/form/i-9.pdf. With the new I-9 form, USCIS has also at long last issued an updated Handbook for Employers (M-274). It is available at http://www.uscis.gov/files/nativedocuments/m-274.pdf. Details about the revised I-9 are available at http://www.uscis.gov/files/pressrelease/FormI9FS110707.pdf. A reminder with the deadline is available at http://www.uscis.gov/files/pressrelease/FormI9Reminder112307.pdf. The Federal Register notice is online at: http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=28540022905+2+0+0&WAISaction=retrieve 

Copies of the documents that are acceptable under the new I-9 requirements may be obtained in a brochure, "Guide to Selected U.S. Travel and Identity Documents" (M-396), which may be ordered in bulk from U.S. Customs and Border Protection, National Distribution Center, P.O. Box 68912, Indianapolis, IN 46268; fax: (317) 290-3046.

Flynn and Clark will be hosting a Breakfast Briefing for its clients and friends on the New I-9 Form and Related Enforcement Issues after the first of the year. For further information please email info@flynnclark.com.

2. No-Match Letters Will Not Be Sent This Year, SSA Says – DHS will revise rule

A Social Security Administration (SSA) spokesperson reportedly has stated that the SSA will not send out no-match letters this year to employers, in response to an October 10, 2007, preliminary injunction from the U.S. District Court for the Northern District of California that enjoined and restrained the Department of Homeland Security (DHS) and the SSA from implementing the final rule, "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter." The rule would have subjected employers of workers unauthorized to work in the U.S. to penalties for failing to respond to a no-match letter alerting the employer to discrepancies between SSA data and information sent in by employers. The preliminary injunction did not preclude the SSA from sending out its traditional no-match letters without the final rule language. According to sources, the SSA is unlikely to send out no-match letters until spring 2008 at the earliest. SSA said it did not have sufficient time to revise the no-match letter in 2007. The SSA sends no-match letters to approximately 138,000 employers each year concerning as many as nine million employees. DHS expects to have its rule revised by March of 2008.

3. Basic Pilot Findings Released – E-Verify accuracy needs further improvements

Recent findings about the Web-based Basic Pilot program, now called E-Verify, have been released. Participants use this program to verify employment authorization of their employees. It is not foolproof.  Among other things, the report notes that employers are satisfied with many aspects of the new online version of the Basic Pilot program. Also, the accuracy of the U.S. Citizenship and Immigration Services (USCIS) database used for verification has "improved substantially" since the start of the Basic Pilot program. Further improvements are needed, however, the report notes, especially if the program is mandated nationally.

Most importantly, the report states, the database used for verification "is still not sufficiently up to date to meet the [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] requirement for accurate verification, especially for naturalized citizens." The report notes that USCIS and the Social Security Administration accommodate this problem by providing for a manual review of these cases, which is "time-consuming and can result in discrimination against work-authorized foreign-born persons during the period that the verification is ongoing, if employers do not follow procedures designed to protect employee rights."

The report, which includes recommendations, is available at http://www.uscis.gov/files/article/WebBasicPilotRprtSept2007.pdf. Related materials are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89abf90517e15110VgnVCM1000004718190aRCRD.

4. Investors! USCIS Releases List of EB-5 Regional Centers

Persons wishing to obtain US permanent residence through investment may wish to investigate the EB-5 program. U.S. Citizenship and Immigration Services recently released an updated list of active approved EB-5 "Regional Centers," which are public or private entities approved to participate in the EB-5 immigrant investor program. These centers provide for reduced investment amounts ($500,000 rather than the standard $1,000,000) required and allow investors to play a limited role in the business enterprise should they wish to follow other pursuits. This makes the program an ideal vehicle for retirees otherwise facing obstacles to immigration. It can also be used by younger immigrants whose family members are able to make a gift of the required funds. The list of centers, current as of October 2007, is available at http://www.globallawcenters.com/pdfs/23812.pdf.

5. Department of State Issues Record Number of Student Visas

The Department of State announced on November 16, 2007, that it has issued a record number of visas to students coming to study in the U.S., exceeding pre-9/11 levels. During fiscal year 2007, the Department issued more than 651,000 student and exchange visitor visas, which was 10 percent more than last year and 90,000 more than were issued in fiscal year 2001.

The notice is available at http://www.state.gov/r/pa/prs/ps/2007/nov/95290.htm.

6. Target and Whole Foods Market Charged with Discriminating Against Immigrant Workers

The Legal Aid Society - Employment Law Center (LAS-ELC) recently filed two employment discrimination charges with the Department of Justice against the Target Corporation and Whole Foods Market, alleging that the companies illegally fired and suspended, respectively, two immigrant workers, even though they had presented clear evidence of their authorization to work in the U.S. Target allegedly terminated an employee who is authorized to work under Temporary Protected Status (TPS), and Whole Foods allegedly suspended for 30 days without pay an employee who is a naturalized U.S. citizen.

"The facts could not show more clearly that both Target and Whole Foods Market engaged in classic document abuse, and our clients have suffered the harsh consequences of such illegality," said Carole Vigne, a Skadden Fellow with the LAS-ELC.

The LAS-ELC's announcement is available at http://www.las-elc.org/whatsnew.html.

7. China, India Second Preference Cut-Off Dates Retrogress; Other Projections

The Department of State's Visa Office announced in the latest Visa Bulletin that the China-mainland born and India employment second preference cut-off dates both will retrogress in December.  The Department said the retrogression is a direct result of extraordinarily heavy applicant demand for numbers, primarily by U.S. Citizenship and Immigration Services offices for adjustment-of-status cases.  Additional retrogressions cannot be ruled out during the second quarter of the fiscal year, the Department noted. 

The Department also made the following projections based on current demand patterns, which could change.  "Under no circumstances should they be used as a basis for making any formal plans prior to the announcement of the monthly cut-off dates," the Department warned. 

• Employment Preferences - Worldwide and Philippines:

First and second preferences:   Will remain Current.

Third:  Slow forward movement should be possible while demand patterns are established. 

Third "Other Workers" category (all countries):  Little if any forward movement is expected at this time.  If the current demand pattern continues, it may be necessary to retrogress the cut-off date at some point later in the fiscal year.

• Employment Preferences - China-mainland born and India:

First:  Continued heavy demand may require the establishment of a cut-off date at some point during the fiscal year.

Second:  Demand during October and the first week of November has already used over 38 percent of the annual limit. It is hoped that the December retrogressions will return monthly number use within the target range.  If not, further retrogressions cannot be ruled out.

Steve Clark addressed the Boston Bar Association Foreign Lawyer's Committee with a presentation on Visa Options for Foreign Lawyers. Mr. Clark discussed some of the difficulties lawyers have obtaining labor certification due to difficulties encountered obtaining licensure and the rather subjective process law firms use in recruiting and hiring lawyers. Flynn and Clark will be hosting a Breakfast Briefing for its clients and friends on I-9 and Related Immigration Enforcement Issues after the first of the year. For more information or to request presentation materials, please email Steve Clark at sclark@flynnclark.com.

Vincent Lau of Flynn & Clark, P.C. was invited to speak at the Massachusetts Continuing Legal Education Immigration Conference on November 13, 2007.  Vince provided practitioners with insight on a number of nonimmigrant visa categories, including the B-1/B-2 business/tourist visa, TN treaty national visa, and the Visa Waiver Pilot Program.

Jane Devlin, also of Flynn & Clark, P.C.  presented "Immigrating Legally: nuts and bolts" at St. Ignatius Church in Chestnut Hill, MA, on November 18.

Steve Garfinkel presented on business immigration law issues at "Exposing the Dilemma: A Discussion of the Moral and Legal Complexities of U.S. Immigration Laws." The forum, held at St. Peter's Catholic Church on October 9, included Mr. Garfinkel's discussion on the obligations of U.S. employers under U.S. immigration laws, the obstacles facing U.S. employers who seek to employ foreign labor legally, and the dilemmas of U.S. employers who are concerned about securing their existing workforce. Mr. Garfinkel will speak at The Employer's Association (http://www.employersassoc.com) on January 30, 2008, regarding the newly revised I-9 employment verification form. Topics will include the proper completion of the form, the differences between the old and new versions, and the current situation regarding social security mismatch letters.

H. Ronald Klasko will speak at the American Immigration Lawyers Association (AILA) New York Chapter Immigration Symposium in New York on December 13, 2007. His other recent speaking engagements have included the New Jersey Institute for Continuing Legal Education Annual Immigration Conference in Newark, New Jersey, on November 14, 2007, and the American Bar Association on November 9 at its Labor and Employment Law Conference in Philadelphia. Mr. Klasko also participated on two panels at the NAFSA Region VIII conference in Baltimore, Maryland, on November 8.  Mr. Klasko's recently authored article, "Litigation to Challenge Agency Delays: Frequently Asked Questions," was presented at several conferences. Mr. Klasko's latest publication, "Employment Options for Foreign Nationals in the U.S.: Overview of U.S. Immigration Process," was published in connection with the American Bar Association conference.

The Cornell Alumni Magazine has published an article about the asylum law clinic that Stephen Yale-Loehr co-directs at Cornell Law School. "Many people don't realize that, unlike in criminal cases, there's no constitutional right to counsel in immigration proceedings," says Mr. Yale-Loehr. "But too often in our immigration system, the most complex cases involve the people who can least afford a lawyer." The asylum law clinic works to help close that gap. The article is online at http://cornellalumnimagazine.com/Currentissue/features/Feature2.asp.

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online: https://egov.uscis.gov/cris/jsps/ptimes.jsp

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Steven A. Clark is a Fellow of the (ABIL), the alliance  of premier immigration law firms. ABIL provides to human resource professionals, corporate counsel, in-house immigration managers, and other immigration decision makers access to an alliance of U.S. business immigration attorneys who have a demonstrated history of client service and a dedication to providing the best and most effective solutions to your immigration concerns. Each of ABIL's Founding Fellows is committed to the highest standards of professionalism, to maintaining the most up-to-date knowledge in the field of U.S. immigration law, and to providing the kind of accessibility you expect from the best in the field.

The Academy of Business Immigration Lawyers' website is: http://www.abil.com/. This update was prepared with the cooperation of ABIL.  Copyright © ABIL 2007, portions used with permission.

Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Contact Your Flynn & Clark Attorney for Further Information

Steven A. Clark
Jane P. Devlin

Mary E. Gilbert
Vincent W. Lau

FLYNN & CLARK, P.C. provides a full range of inbound as well as outbound immigration legal services for United States and foreign companies under the leadership of Steven Clark, Past President of the American Immigration Lawyers’ Association (AILA) which has over 10,000 members worldwide. The Immigration Update provides periodic alerts about noteworthy developments in immigration affecting the business community. It is provided as a service of the Firm regarding legal developments; it is not a substitute for legal counseling and may constitute advertising material in some jurisdictions.

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