U.S. Citizenship and Immigration Services (USCIS) announced that the new E-Verify “self-check” will be available to the public on March 18, 2011.  This self-check will provide individuals with the opportunity to check their employment eligibility prior to accepting employment and it will allow individuals to correct any potential errors that are contained in the government databases that E-Verify uses to confirm identity information and employment eligibility.

The new self-check will involve two processes.  First, the individual will provide some basic identity data such as their name, address, date of birth and social security number.  This information is submitted to a third party identity service.  This service will develop two questions that only the individual would be able to answer.  If the individual is able to answer the questions, his or her identity is authenticated and he or she can move to the second step – the E-verify query.

During the E-Verify query, the individual will be asked to provide additional information that he or she would normally supply to an employer during the I-9 process.  This information includes the alien number, passport number, Form I-94 number, and/or lawful permanent resident card or work authorization document (EAD) number.  After communicating with the E-Verify system through the web, the self-check will alert the individual that he or she (1) is work authorized; (2) has a potential mismatch with data contained in the Social Security Administration’s databases; or (3) has a potential mismatch with information contained in the various immigration databases maintained by the Department of Homeland Security. 

If the individual’s E-Verify query results in any potential mismatches with social security or immigration records, the individual will be asked if he or she would like to resolve the problem.  If the individual chooses not to resolve the matter, then E-Verify will close the case.  However, if the individual does wish to resolve the error, he or she will be given detailed instructions on how to correct the error with either the SSA or DHS.  This new self-query was devised to allow individuals the opportunity to correct these errors before it became a problem after hiring.

In an effort to protect the identity of the individuals using the E-Verify self-query, E-Verify does not share information with USCIS that is received through this process.  Additionally, if the individual cannot answer the identity questions and he or she cannot move forward with the self-check, his or her record is deleted by the E-Verify system.  That being said, there are some disclosures that can be made to agencies outside of DHS.

Employers also should be very cautious about the E-Verify self check.  Klasko reminds its clients that they cannot require applicants for positions to use the E-Verify self-check.  This would constitute pre-screening prior to offering a position and having that position accepted by the employee, which results in a violation of the anti-discrimination provisions of the E-Verify rule.  Contact your Klasko Law attorney for more information.

USCIS has announced that it will begin issuing employment authorization documents (EAD cards) and advance parole travel documents on a single card to applicants for adjustment of status (green card applicants).  Previously, USCIS issued separate documents to evidence a foreign national’s ability to work in the U.S. and travel internationally while his or her green card application was pending.  Applicants received an EAD card to evidence their ability to work in the U.S. and they received a separate paper document on Form I-512, or Advance Parole, for the applicant to travel internationally.

USCIS stated that the new card will look similar to the old EAD cards but they also will state “Serves as I-512 Advance Parole.”  The new card is more secure and durable than the paper advance parole documents the Service used to issue.  Applicants who apply concurrently for an EAD card on Form I-765 and Advance Parole on Form I-131 along with or after filing Form I-485 will be issued the new card.

On Friday, January 21^st, USCIS posted the final E-1-1 RFE template for extraordinary ability petitions.  USCIS indicated that it will leave this template posted on their website until February 4^th, giving stakeholders an opportunity to access and review.  This document provides important information as to how USCIS adjudicators review and evaluate the regulatory criteria.  While we appreciate the transparency USCIS offers by providing stakeholders access to this document, it seems that after February 4^th, this template will no longer be available to the public.

On initial review, USCIS appears to have incorporated some of the changes suggested by the American Immigration Lawyers Association (AILA) with regards to evaluating individual criteria.  These suggestions are discussed in my article “Dissecting USCIS’ E-1-1 RFE Template.”  However, USCIS provides almost no guidance as to how adjudicators should apply the “final merits analysis”, despite the fact that several federal court decisions provide clear guidelines.   The lack of guidance suggests that adjudicators can deny a petition based on nothing more than their own gut feeling that the beneficiary is not one of the small percentage who has risen to the top.   

In addition, the E-1-1 RFE template is only one side of the equation.  USCIS not released the final memo implementing Kazarian.  Given the differences between how some criteria are evaluated in the memo versus how they are evaluated in the E-1-1 RFE template, it leaves open the question of which will take precedence.

To learn more about the employment based first preference immigrant visa category, please visit www.eb1immigration.com.

Yesterday, the USCIS issued an updated version of the M-274, The Handbook for Employers.  Federal immigration law requires that all U.S. employers verify the identity and employment authorization for every worker they hire after November 6, 1986, regardless of the employee’s immigration status.  The Handbook is the Service’s official guide to completion of the Form I-9, Employment Eligibility Verification Form and serves as an important resource to employers in the employment eligibility process. The new Handbook replaces the previous edition, which took effect in April 2009.

The Handbook has been revised and updated with new information about applicable regulations, including new regulations about electronic storage and retention of Forms I-9; it clarifies how to process an employee with a complicated immigration status; and, it addresses public comments and frequently asked questions.

Some of the new sections and tools included in The Handbook include:

-New visual aids for completing Form I-9;

-Examples of new relevant USCIS documents;

-Expanded guidance on lawful permanent residents, refugees and asylees, individuals in Temporary Protected Status (TPS), and exchange visitors and foreign students;

-Expanded guidance on the processing of employees in or porting to H1-B status and H2-A status; and,

-Expanded guidance on extensions of stay for employees with temporary employment authorization.

Additionally, The Handbook for Employers now also includes information for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must verify their employees’ employment authorization on Form I-9 CNMI. It also highlights information about documents CNMI employers may accept from their employees.

For more information on the employment eligibility verification process we encourage you to request a complementary recording of our recent Webinar entitled Increased Immigration & Worksite Enforcement: Strategies to Weather the Perfect Storm by emailing us at klaskoonline@klaskolaw.com.

To learn more about the Klasko, Rulon, Stock & Seltzer, LLP worksite compliance practice group please visit our website www.worksitecompliance.com

Today the U.S. Consulate in Mumbai erroneously posted an incorrect version of the February 2011 visa bulletin which reported that EB-2 India priority dates would become current, allowing individuals with previously backlogged priority dates to file adjustment of status and immigrant visa applications.  However, The U.S. Department of State has clarified that the Mumbai posting was incorrect and India EB-2 remains at May 8, 2006. 

Below is a copy of the February 2011 visa bulletin also available online at: http://travel.state.gov/visa/bulletin/bulletin_5228.html

I will admit to being surprised by the current discussions underway in the media as politicians and commentators, including State Representative Daryl Metcalfe here in Pennsylvania, talk about ways of ending the United States’ 200-plus-year recognition that birth in the United States confers United States citizenship on the child, regardless of the immigration status of the parents.

Opponents of birthright citizenship, who also generally oppose the United States’ overall willingness to accept legal immigration, refer pejoratively to the children of mothers without immigration status as “anchor babies” – implying that the children “anchor” the parents to the United States and make it difficult or impossible for the parents to be deported.  This whole “birthright citizenship” debate, therefore, is based on a false understanding of the reality of immigration law: a child born in the United States is of no, or almost no, practical value to the parent as a means of obtaining lawful immigration status in any reasonable timeframe.*  (For those who would like the details, I’ve put them at the bottom of this post.)

But why is US citizenship a birthright?  Our current law on acquisition of citizenship at birth in the United States is based on more than 400 years of precedent.  (more…)