Connecticut District Court Protects H-1B Employee from Wrongful Arrest; Holds Regulation That Extends Work Authorization Implicitly Extends Authorization to Remain in U.S. During Pendency of Timely Filed Extension Request

April 18th, 2011

A federal district court in Connecticut ruled that the government may not arrest an H-1B employee for whom a timely filed extension application remains pending. U.S. District Judge Janet C. Hall in El Badrawi v. United States found that a federal immigration regulation allows H-1B employees to continue working for 240 days pending the adjudication of their extension applications and that that authorization is part of their authorization to be in the country, not a separate matter. “The government’s proposed interpretation of the work authorization regulation . . . that it extends authorization to work in the country, but not authorization to be in the country,” held Judge Hall, “cannot be squared with the text or purpose of that provision. . . .” Judge Hall also found that the government’s proposed interpretation of the regulation at issue raises grave due process concerns. “The government has argued that. . .an alien who has filed a timely application for extension may remain in the country, but if he does, the government has discretion to arrest, detain, and remove him. There is a serious question as to whether this interpretation is consistent with the Fifth Amendment’s Due Process Clause.”  Had the government provided clear, advance notice of the risk of detention, the court may have ruled otherwise.

The plaintiff, a medical researcher from Lebanon, was in valid H-1B status when his employer timely filed an H-1B extension. USCIS never adjudicated the petition and refused to respond to requests for information. Nearly seven months later, with the case still pending, Immigration and Customs Enforcement (ICE) agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. He sued the government for false arrest and abuse of process.

The court concluded that permitting the initiation of removal proceedings during this period would thus be unfair.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | I-9, Immigration and Customs Enforcement

USCIS Processing Times: Separating Fact from Fiction

February 28th, 2011

USCIS processing times may be accessed on the Zulkie Partners website at http://www.zulkiepartners.com/processing.html.

The posted USCIS processing times represent data that is approximately 45 days old at the time of posting. In addition, the listed dates reflect the most-recently filed case in the particular product line on an examiner’s desk at the time the data as gathered. This means that there are many cases with substantially earlier receipt dates than those officially listed that have not been processed as of the date of publication of the processing times schedule. The National Customer Service Center (NCSC) is not using the processing times listed on the USCIS website when it considers whether a case is beyond the official USCIS processing times. The processing times used by NCSC are substantially longer than those on the posted processing time schedule in many cases, particularly in H and L filings, causing NCSC to refuse to submit a case inquiry in some instances.

Sign-up for Case Updates

USCIS Customers (applicants or petitioners) can create an account to more conveniently access information on pending applications and petitions. 
In addition, USCIS Customers can choose to receive automatic case status updates, which will be sent via e-mail. A new pilot program provides the additional option to receive a text message notification that a case status update has occurred, which will be sent to a United States mobile phone number. USCIS Customers who select the option to receive the text message notification acknowledge that Standard Messaging Rates or other charges related to these notifications may apply.

Click here to access this USCIS service.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, I-129, I-140, I-485

VIBE System Introduced to Facilitate Employer Vetting by USCIS

February 20th, 2011

USCIS has begun the beta testing of a new tool called the Validation Instrument for Business Enterprises (“VIBE”).  VIBE is purported to enhance and assist USCIS in assessing employers filing employment based immigration petitions.  The VIBE system will utilize commercially available data from independent information providers such as Dun and Bradstreet, and will allow USCIS to validate basic information about companies or organizations filing employment based petitions.  

USCIS has stated that it will not deny a petition based exclusively on information obtained via the VIBE system, rather, that it would give the petitioner an opportunity to respond to agency concerns regarding the business.  Employers are hoping to avoid the obstacles they faced when the Department of Labor used a similar commercially available database to implement its iCERT Portal, resulting in numerous Labor Condition Application denials for allegedly incorrect Federal Employer Identification Numbers.

Zulkie Partners is nationally recognized for its command of immigration law. We offer services that cover all aspects of corporate immigration law, including nonimmigrant work visas, permanent residence sponsorship and more.

Connect with us today to learn how we can help you further your hiring goals.

Comment » | Department of Homeland Security, H-1B, I-129, I-140

E-Verify Self Check Goes Live on March 18, 2011

February 20th, 2011

The United States Citizenship and Immigration Services (USCIS) has published a notice in the Federal Register announcing that the new E-Verify Self Check feature will go into effect on March 18, 2011. As previously reported, the E-Verify Self-Check initiative will enable individuals to check their work authorization status prior to being hired and facilitate correction of errors in the federal databases which E-Verify utilizes. Self Check was developed primarily to address concerns with the current employer-focused E-Verify process, where employees have very limited ability to identify, access or correct information that may ultimately lead to a tentative nonconfirmation (TNC). Self Check promises to provide an easy method for individuals to check their own employment eligibility status outside of the normal E-Verify process, and thereby reduce the likelihood of TNCs.

How will Self-Check work?

E-Verify Self Check will involve two broad steps (with a few others underneath): (1) Identity authentication of the individual and (2) an E-Verify query to confirm the individual’s current work authorization status. Here’s how it will work:

Step 1 – Identity Check

After browsing to the website, the individual will be asked to enter some basic identifying information, including name, address of residence, date of birth, and Social Security number (optional). After the information is entered by the individual, it will be submitted to a 3rd party identity assurance service (IdP) to generate a minimum of 2 “knowledge-based” 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 a pass indicator is sent to E-Verify (proceed to step 2).  If the individual is unable to answer the questions or if there is not enough commercial identity verification information from financial institutions, public records, and other service providers to generate the questions, the individual’s identity cannot be authenticated and he will not be able to continue through E-Verify Self Check.

Step 2 – E-Verify Query

Once the individual has successfully completed the identity proofing quiz, he or she will be able to run an employment eligibility query to determine work eligibility status. The name and date of birth provided in Step 1 will be pre-populated and cannot be changed (for security reasons). The individual will then be required to enter additional information based on the documentation the person would present to an employer for the Form I–9 process. The additional information collected from an individual depends on citizenship status and could include: Alien Number (if non-citizen); passport number; Form I-94 number; and/or lawful permanent resident card or work authorization document (EAD) number. Sound familiar? That’s because  this is the same information that is collected for the Form I-9 process and the basic E-Verify query.

E-Verify Self Check will then contact the E-Verify system through a web service connection and will present one of three results: (1) Work Authorization Confirmed; (2) Possible mismatch with SSA Information or (3) Possible mismatch with Immigration Information. If the individual receives the SSA or Immigration mismatch, E-Verify Self Check will prompt the individual whether he or she would like to resolve the mismatch or not. If the individual chooses not to resolve the mismatch, E-Verify will close the case. If the individual chooses to resolve an SSA mismatch, a form will be generated that contains the individual’s first and last name, the date and time of the E-Verify query, the E-Verify case number, and detailed instructions on how to resolve the mismatch. If the individual decides to resolve an Immigration Information mismatch, E-Verify Self Check provides instructions to contact E-Verify Customer Contact Office (CCO) to assist in the correction of immigration records 72 hours after the initial query to speak with a status verification representative. If the representative is unable to correct the record, the individual will be advised of actions necessary to correct the error.

Security and Privacy Concerns

When Self-Check was first announced, many organizations expressed concerns over the security and privacy of the individual’s personally identifiable information (PII) which is transmitted during the process. To address some of these concerns, the DHS system of records for Self-Check includes the following safeguards:

  • The questions asked by the IdP and the answers provided by the individual are not provided to USCIS.
  • If an individual fails the identity authentication portion of E-Verify Self Check and therefore is unable to proceed to an actual query in E-Verify, none of the information listed above is provided to or retained by E-Verify Self Check.
  • Only the transaction number, the reason for failure, the date and time of the transaction, and error code are retained by the IdP to facilitate troubleshooting and system management.

It’s worth noting, however, that there are many other “routine” disclosures of this information which could be made outside of DHS.

Employer Concerns

While the launching of Self Check has the potential to reduce the number of TNCs, it still remains to be seen whether individuals will choose to use it, and if they can easily correct inaccuracies in the government databases. In addition, there is also a concern that some employers may be tempted to require their employees to use self-check prior to applying for a job. This would almost certainly constitute pre-screening, which would run afoul of the anti-discrimination provisions of E-Verify. Therefore, it’s important for employers to remember that E-Verify can only be used for new hires (or existing employees pursuant to FAR rules) once an offer has been extended and accepted and an I-9 form has been completed. As always, implementing training and clear policies are vital to ensure compliance with these changing rules.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

United States Citizenship and Immigration Services Publishes Updated I-9 Employment Eligibility Verification Handbook with Important Changes

January 27th, 2011

All U.S. employers must complete an I-9 Employment Eligibility Verification Form for each new hire, regardless of immigration status or citizenship.   U.S. Citizenship and Immigration Services (USCIS) publishes a Handbook for Employers with instructions and guidance directed to employers on how this form should be completed for foreign nationals.   A copy of the Handbook can be accessed at the USCIS website at http://www.uscis.gov/files/form/m-274.pdf.

The newly published guide offers revisions and clarifications on appropriate documentation for lawful permanent residents, refugees and asylees, and work authorization documents for foreign nationals in temporary protected status (TPS).  The Handbook provides detailed guidance on completing I-9 forms for individuals in J-1 exchange visitor status and F-1 and M-1 student status.  Additionally, the Handbook explains how to complete the I-9 for F-1 students who are changing status to H-1B and are eligible for a “cap-gap” extension of status and employment authorization.

In a helpful revision to previous policy, the Handbook now states that an employee in valid H-1B status who changes (“ports”) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS, rather than upon receipt of the I-797 Receipt Notice, which can take weeks to arrive in the mail.

The revised Handbook includes specific instructions on how U.S. employers should document employees’ I-9 files, as well as requirements for electronic records.  For example, an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permit the identification and retrieval of documents and records maintained.

For federal contractors, the revised Handbook provides additional guidance on responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification.   These clarifications make it easier for employers to properly complete I-9 forms for its employee’s that have unique situations.

Comment » | Department of Homeland Security, E-Verify, I-9, Immigration and Customs Enforcement, Worksite enforcement policies

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