U.S. Immigration: Recent Developments and Updates
This advisory summarizes recent changes in immigration laws, including the new Form I-9, changes in H-2B regulations, and expansion of the US-VISIT and Electronic System for Travel Authorization (ESTA) security clearance procedures for certain visitors to the United States. We will also provide updates on the H-1B lottery to be conducted on April 1, 2009, the status of the Social Security “no match” rule, and the requirement of federal contractors to use the E-Verify system to check the employment authorization of new hires.
New Form I-9
Beginning April 3, 2009, all employers will be expected to use the new Form I-9 (dated 02/02/2009) to verify the employment eligibility of all new hires and for re-verification of current employees with expiring employment authorization. This interim final rule was originally intended to take effect on Feb. 2, 2009, but due to President Barack Obama's January moratorium on new regulations, a last minute decision was made to delay implementation.
The biggest difference between the old and new Form I-9 is that employers are no longer able to accept expired documents. There are also some minor amendments to the list of acceptable documents that establish both identity and employment authorization (List A documents).
The new Form I-9 should only be used for new hires and re-verification of current employees with expiring employment authorization. Employers should not complete new forms for current employees with current work authorization. The new Form I-9 is available at www.uscis.gov/i-9.
H-1B Lottery on April 1, 2009
Employers are reminded that for new H-1B workers whom they wish to employ in 2010, preparation for H-1B petitions should begin now, as these petitions must be filed on or about April 1, 2009. The H-1B work visa classification is for “specialty occupations” that require at least a bachelor's degree.
Last year, the H-1B cap was reached within days following the April 1 filing date. U.S. Citizenship and Immigration Services (USCIS) reported that it received more than 143,000 petitions for the available 65,000 regular H-1B visas, and 31,000 petitions for the available 20,000 U.S. Master's H-1B visas. For the past few years, USCIS has implemented a blind lottery to select petitions for processing.
Please note that this deadline does not apply to certain research organizations and university-affiliated employers who are exempt from the H-1B cap, and who may hire new H-1B workers year-round.
New H-2B regulations
The H-2B program permits U.S. employers to temporarily hire foreign workers to perform non-agricultural services or labor on a one-time, seasonal, peak load or intermittent basis. In January 2009, the Department of Labor implemented significant changes to the program. It replaced the current temporary labor certification process with an online attestation and audit system similar to the PERM process. In addition, the program has been restricted to nationals of designated countries, and employers are now subject to more stringent reporting requirements than before.
U.S. Permanent Residents Now Subject to US-VISIT
Permanent residents and Canadian citizens (unless traveling as visitors for business or pleasure) are among the new class of non-U.S. citizens now required to provide digital fingerprints and a photograph (i.e., biometrics) upon entering or exiting the United States. The purpose of the US-VISIT program is to check the biometrics of certain categories of non-U.S. citizen travelers against a watch list of suspected terrorists, criminals and immigration violators. The program also guards against the use of fraudulent documents. A complete list of all categories of non-U.S. citizens who are subject to the US-VISIT program can be found at: www.dhs.gov/usvisit.
Expansion of ESTA
ESTA is a mandatory system for visitors to the United States. It allows the Department of Homeland Security to determine, in advance of travel, whether an individual poses a security risk. Since Jan. 12, 2009, all citizens of U.S. visa-waiver countries, including Japan and the United Kingdom, have been required to go online and get ESTA authorization before travel and provide the same information on board before arrival in the United States. For more information about the ESTA program, please visit: www.cbp.gov/esta.
Social Security No-Match Rule Is Still on Hold
Notwithstanding the Department of Homeland Security's (DHS) publication of its Supplemental Final Rule in October 2008, the federal injunction blocking enforcement of DHS's rule still remains in effect. Employers should continue to follow the instructions set forth in any no-match letters received from the Social Security Administration (SSA) and should not follow the “safe harbor” steps outlined in the DHS no-match rule. The SSA continues to report that it will not issue any new no-match letters until litigation surrounding DHS's rule is resolved.
E-Verify for Federal Contractors Delayed Until May 21, 2009
Originally scheduled to become effective on Jan. 15, 2009, the new rule that would have required all federal contractors to use E-Verify has been further delayed. A lawsuit by the U.S. Chamber of Commerce and other business organizations initially delayed implementation of the rule until Feb. 20, 2009. Their primary legal argument was that the rule violated the Administrative Procedure Act.
The delay has been further extended to May 21, 2009, as a result of President Barack Obama's January moratorium on new regulations. E-Verify provides employers the ability to confirm an employee's work authorization through the Internet. A number of state laws require use of E-Verify for certain employers. This federal lawsuit and delay does not affect these state laws.