Flynn & Clark, P.C. Immigration Update
September 2009
Ø 1. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations - 652 businesses around the country will be audited to determine their compliance.
Ø 2. OMB Extends I-9 Approval to August 31, 2012 - Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009.
Ø 3. USCIS Issues Guidance on E-Verify Federal Contract Rule – Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date.
Ø 4. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify - DHS has proposed to rescind amendments relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters.
Ø 5. DOS Releases DV-2010 Lottery Results - The highest number for any single country went to Nigeria, at 6,006; dates for the upcoming DV-2011 program registration period will be announced in August.
Ø 6. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage - The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings.
Ø Also in this issue:
Publications and Items of Interest
It seems there is a hole in Krispy Kreme's immigration compliance doughnut. On July 7, 2009, U.S. Immigration and Customs Enforcement (ICE) and the Butler County, Ohio, Sheriff's Office announced a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff's Office that the company had employed dozens of undocumented workers at one of Krispy's doughnut factories in Cincinnati.
In other news, ICE recently found that nearly a third of 6,000 American Apparel workers may lack work authorization. Dov Charney, CEO of American Apparel, said, "Many of these employees, some of whom have worked at American Apparel for as long as a decade, have been responsible, hard-working employees who have made significant contributions to the Company's growth and success. As a company that prides itself on being one of the last major apparel manufacturers still making clothing in the United States, at a 'sweatshop free' factory where we pay our garment workers some of the highest wages in the industry, it is the company's hope--and my personal hope as an immigrant myself--that these employees are able to confirm their work authorization so that they may continue to work at American Apparel. The company remains very proud of its track record as an advocate for the comprehensive reform of the country's immigration laws." ICE has also announced that as part of a new auditing initiative, 652 businesses around the country will be audited to determine their levels of I-9 compliance.
More information on the American Apparel case is available at http://investors.americanapparel.net/releasedetail.cfm?ReleaseID=393357. The ICE notice is available at http://www.ice.gov/pi/nr/0907/090707cincinnati.htm
2. OMB Extends I-9 Approval to August 31, 2012
U.S. Citizenship and Immigration Services (USCIS) announced on August 27, 2009, that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification Form) to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of August 7, 2009.
Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009. The revision dates are located on the bottom right-hand portion of the form.
The announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/update_I-9_extension0827.pdf.
3. USCIS Issues Guidance on E-Verify Federal Contract Rule
U.S. Citizenship and Immigration Services (USCIS) reminded federal contractors and subcontractors that effective September 8, 2009, they “may be required” to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The regulation states that federal contracts will be awarded only to employers who use E-Verify to check employee work authorization.
The E-Verify federal contractor rule extends use of the E-Verify system to cover both federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after September 8 will include a clause committing government contractors to use E-Verify.
Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.
More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility, according to USCIS. The agency noted that since October 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.
The USCIS announcement is available at: http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/EVerifyFederalContractorRule8Sep09.pdf
On August 19, 2009, the Department of Homeland Security (DHS) proposed to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters from Social Security. These letters advise the employer that the worker’s name does not match Social Security records for that number. The withdrawal of the rule leaves any employers receiving a no-match letter in the lurch. The U.S. District Court for the Northern District of California had enjoined implementation of the 2007 final rule on October 10, 2007. After further review, DHS said it plans to focus its enforcement efforts relating to the employment of unauthorized workers on increased compliance through improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.
DHS noted that in fiscal year 2010, U.S. Citizenship and Immigration Services plans to improve the E-Verify system's ability to automatically verify international students and exchange visitors through the incorporation of ICE's Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced, DHS said. In 2010, ICE will launch a new version of SEVIS (SEVIS II), which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch occurs.
5. DOS Releases DV-2010 Lottery Results
The Kentucky Consular Center has registered and notified the winners of the DV-2010 diversity visa lottery. Applicants registered for the DV-2010 program were selected at random from over 13.6 million qualified entries received during the 60-day application period that ran from October 2, 2008, until December 1, 2008. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.
Only participants in the DV-2010 program who were selected for further processing have been notified; those who have not received notification were not selected. The dates for the registration period for the DV-2011 lottery program will be announced in August 2009.
The highest number for any single country went to Nigeria, at 6,006. The country-by-country breakdown of DV-2010 registrations appears at http://travel.state.gov/visa/frvi/bulletin/bulletin_4539.html.
6. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage
Donald Neufeld, U.S. Citizenship and Immigration Services Acting Associate Director, sent a memo to the field on I-751s filed before the termination of a marriage. The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings, but the marriage has not been terminated.
The memo is available at http://www.uscis.gov/files/nativedocuments/i-751_Filed_%20Prior_Termination_3apr09.pdf.
Flynn & Clark, P.C. Attorney Mary Walsh was recently appointed Co-Chair of the Immigration Committee of the Boston Bar Association. The Immigration Law Committee holds regular informal meetings as well as in-depth CLE programs focusing on issues of interest to immigration lawyers, primarily those who work with domestic and international corporations. The committee’s discussions cover the use of immigration law to attract, hire, and retain highly skilled employers in today’s global economy. As Co-Chair Mary will be responsible for developing programs for the coming year. Steven Clark, Manager of Flynn and Clark’s Immigration Department was Co-Chair of the Immigration Committee from 2006 to 2008.
Steven Clark will be speaking at the Advanced Immigration Seminar of the American Immigration Lawyer’s Association in Pittsburgh on October 3, 2009. The American Immigration Lawyers Association has over 11,000 members nationwide. Mr. Clark is Past President of the Association.
Publications and Items of Interest
The Migration Policy Institute has released "Aligning Temporary Immigration Visas With U.S. Labor Market Needs: The Case for Provisional Visas," by Demetrios G. Papademetriou, Doris Meissner, Marc R. Rosenblum, and Madeleine Sumption; and "The Next Generation of E-Verify: Getting Employment Verification Right," by Doris Meissner and Marc R. Rosenblum. Links to the reports are available at http://www.migrationpolicy.org/pubs/.
The Small Business Administration has released a research summary, "High-Tech Immigrant Entrepreneurship in the United States," by the Corporate Research Board. The report quantifies the role of immigrants in high-tech entrepreneurship using the High-Impact, High-Tech Company Survey database. The authors also examine U.S. immigration policies and processes (especially the H-1B visa) relevant to high-tech immigrant entrepreneurship. The report is available at http://www.sba.gov/advo/research/rs349.pdf.
The House Subcommittee on Government Management, Organization, and Procurement held a hearing on July 23, 2009, "E-Verify: Challenges and Opportunities. Links to the testimony are available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552.
The Council on Foreign Relations has released "U.S. Immigration Policy." The 168-page report argues that "the continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America's economy, to jeopardize its diplomacy, and to imperil its national security." A link to the report in PDF format is available at http://www.cfr.org/publication/19556/.
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
Contact Your Flynn & Clark Attorney for Further Information
FLYNN & CLARK, P.C., is a member of ABIL, The Alliance of Business Immigration Lawyers. ABIL is an entity that offers a single point of contact for customer needs, news alerts, staff training and other programs that benefit the client through the collaboration of the 140 member attorneys and their 460 staff. Corporate counsel, human resource professionals, in-house immigration managers and other corporate decision-makers turn to ABIL attorneys for outstanding legal skills and services. ABIL's work also includes advocating for enlightened immigration reform, providing speakers and media sources, presenting conferences, publishing books and articles on cutting-edge immigration topics, and sharing best practices, all with the ultimate goal of offering value-added services to business immigration clients. This newsletter if produced through Flynn & Clark's collaboration with ABIL.
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