Immigration Alert: October 2008October 28, 2008
DHS Issues Supplemental 'Safe Harbor' Rule to Guide Employers Who Receive Social Security 'No-Match' Letters
Update on Changes to Visa Waiver Program
USCIS Increases Period of Stay For Trade-NAFTA Professional Workers to Three Years
President Bush Signs Bill That Extends and Funds E-Verify through Fiscal 2009
President Bush Announces Extension of Visa Waiver Program
DHS Announces Secure Flight Program
DOS Publishes Final Rule Requiring Certification of Certain Foreign Health Care Workers
New Jersey Computer Company Ordered to Pay Back Wages to H-1B Workers
Holiday Travel Reminder
DOS Issues November 2008 Visa Bulletin _______________________________________________________________________
I. DHS Issues Supplemental 'Safe Harbor' Rule to Guide Employers Who Receive Social Security 'No-Match' Letters
The Department of Homeland Security (DHS) today issued a Supplemental Final "Safe Harbor" Rule (the "Final Rule"). Originally proposed on June 14, 2006, and subsequently issued on August 15, 2007, as a final rule (the "Initial Final Rule"), the Final Rule clarifies what steps employers should take in response to "No-Match" letters issued by the Social Security Administration (SSA) to avoid criminal prosecution.
According to the DHS, the Final Rule is effective immediately. As a practical matter, however, it cannot be implemented until the United States District Court for the Northern District of California lifts its order preliminarily enjoining implementation of the Initial Final Rule that it issued on August 31, 2007. Promulgation of the Final Rule follows publication of a Supplemental Proposed Safe Harbor Rule in March 2008, that sought to address the issues raised by the District Court as the legal justification for its preliminary injunction of the Initial Final Rule. In this Final Rule, the DHS indicates that it shortly will ask the District Court to lift its injunction so that the Final Rule can take effect.
In his comments on the final new rule, DHS Secretary Michael Chertoff stated:
The additional information in this supplemental rule addresses the specific items raised by the Court, and we expect to be able to quickly implement it?....The No-Match Rule, along with E-Verify, will increasingly make the pleas of ignorance from businesses that seek to exploit illegal labor ring hollow, and equip their responsible competitors with the tools they need to hire and maintain a legal workforce.
Under the immigration laws, an employer can be held liable civilly and criminally for knowingly employing an unauthorized alien. The term "knowingly" includes actual and constructive knowledge. Under the regulations, constructive knowledge is "knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition." The regulations provide examples of situations that the government feels constitute constructive knowledge. This includes where the Form I-9 is not properly completed or signed and where the employer fails to take reasonable steps after receiving information indicating that an employee may be an alien not authorized to work. The Final Rule expands these examples to include an employer's receipt of a No-Match letter from SSA or written notice from DHS questioning an immigration document. The Final Rule grants employers "Safe Harbor" from criminal prosecution if they follow the protocol outlined by DHS in response to receipt of these documents. This means that the employer who follows the protocol will not be deemed to have the "constructive knowledge" required for criminal prosecution if the employee turns out to be an unauthorized alien.
Now that the DHS has issued the Final Rule, it will be useful again to review the protocol established by the Initial Final Rule, and repeated by this Final Rule:
A. SSA No-Match letters:
1. Upon receipt of a No-Match letter, the employer must review its records within 30 days to make sure the discrepancy noted by SSA does not result from a typographical, transcription or similar clerical error. If an error is found, the employer also must verify with SSA that the resulting name and number, as corrected, match the SSA records within the same 30-day period.
2. If no employer error is found, the employer must promptly notify the employee about the no-match. If the employee indicates that the employer's records are not correct, the employer must correct them and check with SSA as noted in sub-paragraph 1. If the employee claims the records are correct, the employer must instruct him or her to correct the no-match problem with SSA within 90 days of the employer's receipt of the No-Match letter.
3. When the employee advises the employer that the problem has been corrected, the employer must verify this with the SSA. If the employee cannot resolve the problem within the 90-day period, the employer must re-verify the employee by having him/her complete a new Form I-9 using the same procedures as if it was a new hire except that: (i) the employer and employee must complete sections 1 and 2 within 93 days of receipt of the No-Match letter; (ii) the employer cannot accept any document that contains the disputed Social Security number, or any receipt for the replacement of such a document; and (iii) the employee must present a document that contains a photograph to demonstrate identity or both identity and employment authorization.
B. DHS Notices:
1. Upon receipt of a notice from DHS, the employer first must contact the local DHS office (as instructed by the notice) and attempt to resolve the question within 30 days of receipt of the notice.
2. If the employer cannot resolve the question with DHS within 90 days of receipt of the notice, the employer must re-verify the employee within the next three days by having them complete a new Form I-9 using the same procedures as if it was a new hire except that: (i) the employer and employee must complete sections 1 and 2; (ii) the employer cannot accept any document questioned by the DHS notice, or any receipt for the replacement of such a document; and (iii) the employee must present a document that contains a photograph to demonstrate identity or both identity and employment authorization.
C. Form I-9 Retention:
The employer should note all actions taken pursuant to this Final Rule in a transparent manner on the Form I-9 (or memo attached to the Form I-9), and then must retain both the new and former Forms I-9 for the statutory period, namely, three years or one year following termination, whichever is longer.
For additional information on the Final Rule, please visit http://www.dhs.gov/xnews/releases
II. Update on Changes to Visa Waiver Program
The Visa Waiver Program ("VWP") has been important to facilitate international commerce between the United States and foreign nationals (FNs) from countries eligible to participate in the VWP. It allows these FNs to enter the United States quickly, inexpensively and efficiently by permitting them to bypass the consular visa application process if they are visiting the United States for a permissible purpose. Because the VWP allows these FNs to circumvent the security reviews that are part of the consular visa application process, the United States recently has added security safeguards to the program. Two of these were announced earlier this year, but it is useful to review them.
A. Electronic System for Travel Authorization (ESTA):
On August 1, 2008, the Customs and Border Protection (CBP) introduced the Electronic System for Travel Authority (ESTA). When it becomes effective on January 12, 2009, ESTA requires foreign nationals seeking to use the VWP to apply online for advance authorization to travel to the United States. Those who fail to secure this advanced authorization will not be allowed to board the plane.
In anticipation of a large number of last-minute authorization requests, CBP made the ESTA authorization system operational in August 2008, so that potential VWP users could secure ESTA authorization in advance of their anticipated travel. ESTA authorization is valid for two years or until the passport expires, whichever comes first. When the ESTA becomes mandatory on January 12, 2009, VWP travellers will not be allowed to board a US-bound aircraft or ship unless they have first secured ESTA authorization. At present, information is available only in English, and there is no charge for this service. To complete an online application, please visit https://esta.cbp.dhs.gov. Once the application is submitted, the applicant will receive one of the following responses: Authorization Approved: Applicant's travel is authorized; Travel Not Authorized: Applicant must obtain a non-immigrant visa at a U.S. Embassy/Consulate before travelling to the U.S.; or Authorization Pending: Applicant will need to check the ESTA Web site for updates within 72 hours for a final response.
Instructions on how to obtain an electronic travel authorization are available now in 13 additional languages: Danish, Dutch, Finnish, French, German, Icelandic, Italian, Japanese, Norwegian, Portuguese, Slovene, Spanish and Swedish.
For additional information on the Electronic System for Travel Authorization, please visit: http://www.cbp.gov/linkhandler/cgov/travel/id_visa/esta/esta_tear_sheet.ctt/esta_tear_sheet.pdf
B. VWP Passport Requirements:
As part of the enhanced security features now applicable to the VWP, the DHS also has added a timeline for new passports. These rules can be summarized as follows:
1. Passports issued on or after October 26, 2006, must be "e-Passports." This means that they contain an integrated computer chip capable of storing biographic information from the passport data page, as well as other biometric information, such as a digital photograph of the passport holder.
2. Passports issued between October 26, 2005, and October 25, 2006, must include a digital photo printed on the data page.
3. Passports issued before October 25, 2006, must have a machine-readable zone.
Those seeking to use the VWP who have passports that do not satisfy these requirements will be required first to secure a visa before they will be allowed to travel to, and be allowed entry into, the United States.
III. USCIS Increases Period of Stay For Trade-NAFTA Professional Workers to Three Years
On October 14, 2008, the U.S. Citizenship and Immigration Services (USCIS) issued a final rule that increased from one to three years the maximum period that an applicant for admission as a TN professional under the North American Free Trade Act (NAFTA) may be granted in any application or extension of stay. This final rule makes the admission period for TN professionals equal to the maximum admission period for H-1B professional workers. Of course, there is no maximum limit that a TN professional may remain in this country in TN status while H-1B nonimmigrants generally cannot remain more than six years.
This final rule will ease the administrative burdens and costs on TN workers, and also benefit U.S. employers by increasing the amount of time a TN professional worker can work before having to seek an extension of status. In addition, spouses and unmarried minor children of TN professional workers will benefit from the new regulation.
Finally, on October 22, 2008, the USCIS announced how the new rule increasing the maximum duration of TN status will be implemented:
1. All TN petitions received before October 16, 2008, will be granted for the period requested, or one-year, whichever is less.
2. All TN petitions received on or after October 16, 2008, will be granted for the period requested, or three years, whichever is less.
Furthermore, under the final rule, the USCIS will not grant up to three years if the anticipated length of stay, as stated, is less than that period. Accordingly, it is important to ensure that all TN documents request the maximum three-year period if that is what the employer desires.
For more information on the TN nonimmigrant visa program or to view the final rule, please visit www.USCIS.gov.
IV. President Bush Signs Bill That Extends and Funds E-Verify through Fiscal 2009
On September 30, 2008, President Bush signed The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act (H.R. 2638) (the "CSDA Act"). The CSDA Act extends the E-Verify employment verification program through September 30, 2009, and provides, among other things, $100 million to improve the E-Verify program during that time.
The E-Verify program had been set to expire on November 30, 2008. At the present time, however, more than 88,000 employers currently use E-Verify. While its use is voluntary under federal law, several states have mandated employer use of E-Verify. Moreover, many more states have made use of E-Verify a condition for qualifying for state contracts and the federal government issued a proposed rule making E-Verify mandatory for federal contractors in June 2008.
On July 31, 2008, the House of Representatives approved legislation (H.R. 6633) that would extend E-Verify by five years with a 407-2 vote. The legislation, introduced by Arizona Democrat Gabrielle Giffords, would amend the Illegal Immigration Reform and Immigrant Responsibility Act to extend the life of the voluntary program until October 31, 2013. Representative Giffords, who had initially supported legislation to scrap E-Verify in favor of a new mandatory verification system, said she introduced a five-year extension to make time for more study of the current system. The legislation now awaits Senate action.
V. President Bush Announces Extension of VWP
On October 17, 2008, President Bush announced that the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and South Korea, had met the requirements for admission to the United States VWP. He added that citizens of these nations will be able to travel to the United States for business or tourism without a visa in approximately 30 days.
To secure the right to use the VWP, these countries had to agree to share information about threats to American citizens. They also had to agree that their citizens will use ESTA in connection with any VWP visits to the United States, and they will have tamper-proof biometric passports.
Finally, President Bush noted that a number of America's other close friends are participating in a process called the "Visa Waiver Road Map" that is helping them qualify for the VWP. The current "Road Map" countries are Bulgaria, Cyprus, Greece, Malta, Poland, and Romania.
VI. DHS Announces Secure Flight Program
On October 22, 2008, DHS announced issuance of the final Secure Flight Final Rule (the "SF Rule"). This followed a Notice of Proposed Rulemaking issued in August 2007. In its final form, the SF Rule shifts responsibilities for review of pre-departure watch lists from individual aircraft operators to the Transportation Security Administration ("TSA") or CBP. This implements a key recommendation of the 9/11 Commission by giving the government responsibility for monitoring watch lists.
Under the SF Rule, airlines now are required to collect the passenger's full name, date of birth and gender when making an airline reservation. The TSA will receive this information and determine if it matches any "No Fly" or "Selectee" lists maintained by government law enforcement agencies. The results will be returned to the airline, after which the passenger data in most cases will be destroyed to address civil liberties concerns.
Domestic and international carrier, and industry association, have expressed concerns in connection with the implementation of the SF Rule. The industry believes that it will need at least six months to upgrade its reservation and departure systems in order to become compliant with the SF Rule. Implementation also will be extremely expensive, particularly for an industry that has sustained such large economic losses due to tremendous increases in fuel and other costs, and currently operates almost at break-even point. The industry also is concerned about travel disruption. The SF Rule requires bulk buyers to provide the identities and personal information of each passenger 72 hours in advance of a flight. The industry is concerned about the disruption of foreign carrier operations by requiring passengers to be screened even if a flight does not intend to land in the United States, as well as the possible creation of a data collection system that is likely to be at odds with other DHS data collection programs.
The SF Rule will be implemented in two phases. First, TSA will assume watch list responsibility for domestic flights in early 2009. Later that year, CBP will be given similar responsibility for international flights.
VII. DOS Publishes Final Rule Requiring Certification of Certain Foreign Health Care Workers
On October 20, 2008, the Department of State (DOS) issued a rule that adopts as final without change, the DOS interim rule, published on December 17, 2002, that changed the requirements for issuance of visas to certain health care workers. Under these rules, seven categories of foreign health care workers now need to present certificates establishing competency in a specific health care field. These seven categories are registered nurses, occupational and physical therapists, speech language pathologists and audiologists, medical technologists and technicians and physician assistants. The certification required for a visa can be issued by the Commission on Graduates of Foreign Nursing Schools (CGFNS) or other credentialing organization approved by DHS in consultation with the Secretary of Health and Human Services (HHS). Under the immigration laws, any foreign national (FN) who seeks to enter the United States to work as a health care worker, other than as a physician, is not eligible for a visa and, therefore, not admissible to the United States unless the FN presents to the consular officer a certificate from the CGFNS, or from an equivalent, independent credentialing organization, that indicates the following:
A. The FNs education, training, license and experience:
1. Meet all applicable statutory and regulatory requirements for admission into the United States under the specified visa;
2. Are comparable with those required for an American health care worker of the same type;
3. Are authentic; and
4. In the case of a license, is unencumbered (not burdened or affected).
B. The FN has the level of competence in oral and written English considered by the Secretary of HHS, in consultation with the Secretary of Education, to be appropriate for the health care work in which the FN will be engaged. HHS's finding is to be based on an established score on one or more nationally recognized, commercially available standardized assessments; and
C. If a majority of states licensing the profession in which the FN intends to work recognize a test predicting the success of an applicant on the profession's licensing or certification examination, then FN has passed such a test, or has passed the certification examination.
Section 212(r) of the Immigration and Nationality Act as amended, created an alternative certification process for specific FNs who are seeking to enter the United States to perform nursing services. Generally, such measures apply only to those FNs who already hold a valid, unrestricted, authentic and unencumbered license as a nurse in a state where they intend to be employed and who received their nursing training in a country where the quality of education and the English proficiency of nursing graduates have been recognized by the CGFNS as meeting its standards.
VIII. New Jersey Computer Company Ordered to Pay Back Wages to H-1B Workers
On September 18, 2008, the Department of Labor announced that Data Group, Inc. (DGI), an Iselin, New Jersey, computer company, will have to pay more than $80,000 in back wages to 11 workers employed under the H-1B visa program because it failed to pay them the wages required by that program.
The H-1B program requires employers to pay H-1B workers the same wages as others in similar positions at the worksite or the prevailing wage for the area of intended employment. The wages are determined based on the prevailing wages for each worker's specific job function, his/her level of expertise, and the length of time each had worked at the company. The DOL found that DGI had not paid these workers the required wages and issued an order awarding them back pay ranging from $1,292 to $19,190.
IX. Holiday Travel Reminder
On October 8, 2008, the CBP reminded travelers who are planning trips across the Canadian border to anticipate heavy traffic during the upcoming holiday season and to make sure they have their proper documents.
All travelers, including U.S. and Canadian citizens, now are asked to present proof of citizenship and identity when entering the United States at land and sea ports of entry. This requirement can be met with a passport, NEXUS frequent crosser card, an enhanced British Columbia or Washington State driver's license, a passport card or a birth certificate with a driver's license. Travelers aged 18 or under may present just a birth certificate.
CBP recommends further that travelers plan their trips, avoid peak travel times-typically between the hours of 7:00 A.M. and 7:00 P.M., and consider alternate ports of entry. In addition, in order to avoid long delays during the reconstruction phase of the Peace Arch port of entry, it is recommended that travelers use the nearby and less heavily traveled Pacific Highway, Lynden or Sumas ports of entry.
Additionally, travelers are reminded not to attempt to bring unauthorized fruits, meats and dairy/poultry products into the United States from Canada without first checking whether they are permitted. For additional information on the above, please review the "Know Before You Go" tip sheet located at: www.cbp.gov.
X. DOS Issues November 2008 Visa Bulletin:
The DOS recently issued its Visa Bulletin for November 2008. This Bulletin determines when a FN may apply for permanent residence. The results were mixed. Employment-Based Third Preference is available for all charge-ability areas and the cut-off date is May 1, 2005. Following are the additional cut-off dates: India-October 1, 2001; China-February 1, 2002; Mexico-September 1, 2002; and the Philippines-May 1, 2005. The Employment—Based Second Preference for most countries is available, but there are cut-off dates for India-June 1, 2004, and China-June 1, 2003. The monthly Visa Bulletin is available through the DOS web site at: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.