Alerts and Updates

Recent Developments in Immigration Law

November 2007

United States Citizenship and Immigration Services Updates

USCIS Issues New I-9 Form

USCIS released a revised I-9 Form, Employment Eligibility Verification, on November 7, 2007. The primary change is the elimination of five documents that were previously included on List A as acceptable for proof of both identity and employment eligibility:

  • Certificate of U.S. Citizenship (Form N-560 or N-570)
  • Certificate of Naturalization (Form N-550 or N-570)
  • Alien Registration Receipt Card (Form I-151 - the current I-551 Permanent Resident Card stays on List A)
  • Reentry Permit (Form I-327)
  • Refugee Travel Document (Form I-571)

According to USCIS, the above forms were eliminated from the list because they do not contain adequate features to deter counterfeiting and fraud. One document was added to List A — unexpired employment authorization document (I-688, I-688A, I-688B and I-766). However, employers are not required to re-verify I-9 forms for employees who previously presented documents on the list of eliminated documents and can wait to complete Part Three of the new form to re-verify continued work eligibility as needed only because a work authorization card or status is expiring.

USCIS encourages the use of the new I-9 Form (dated June 5, 2007) immediately. However, employers will not be required to begin using the new I-9 Form until it is published in the Federal Register (which is expected soon) and may then be given a 30-day window to make the transition to the use of the new form.

The new form can be found here. The Handbook for Employers, Instructions for Completing the Form I-9 can be found here. The new Handbook contains updated examples of completed I-9s and updated, color copies of acceptable documents.

Given the recent increased enforcement of employer obligations to verify the identity and employment authorization of all employees and criminal penalties imposed, employers should make sure they are in compliance. If you need assistance with internal audits of your files, or reviewing your I-9s for compliance, please contact us.

USCIS Eliminates I-485 Receipt Requirement for Certain H and L Adjustment Applicants Returning from a Trip Outside the United States

USCIS published a final rule on November 1, 2007 which removes the requirement that certain H and L nonimmigrants returning to the United States following a trip abroad must present a receipt notice for their adjustment of status (I-485) applications to avoid having such applications deemed abandoned. The purpose of this narrow change is to remove an unnecessary documentation requirement from the regulations that the Department of Homeland Security determined causes undue burden on H and L nonimmigrants. Previously, nonimmigrants in H and L status were required to present their original I-485 receipt notices upon return to the United States. This requirement was nearly impossible to comply with during the past few months, as an unprecedented number of green card applications were filed in July and August, causing a major delay in the issuance of receipt notices. Many H and L nonimmigrants were forced to either cancel or postpone travel, or to risk non-compliance with the regulation. The rule is a welcome change and greatly eases the burden for those affected nonimmigrants.

Department of Labor Updates

The Department of Labor (DOL) recently issued a new round of Frequently Asked Questions providing an update on the status of the Backlog Elimination Center (BEC), the entity responsible for adjudicating pre-PERM labor certifications filed prior to March 2005. The DOL confirmed that as of September 30, 2007, its backlog had been nearly eliminated, with 99% of cases completed and the remaining awaiting responses from employers. The BECs in both Philadelphia and Dallas have begun a transition and shutdown phase that will continue into December. They expect to complete all remaining cases by the end of December, and encourage employers and attorneys to respond timely to any dated material to facilitate a final decision. They also reiterated that the status of cases can be checked at http://pds.pbls.doleta.gov.

Increase in PERM Audits

Over the last month, attorneys and companies, have noticed a substantial increase in audits of PERM labor certification applications. There appear to be two types of audits. The first type of audit appears to be a randomly generated audit and follows the same format each time it is issued. Employers are requested to respond to the audit by providing copies of the recruitment undertaken, the notice of filing, the prevailing wage determination, and other documentation in support of the PERM application.

The second type of audit appears to be targeted more to those applications that "trigger" an audit. Audit triggers typically include 1) jobs that require a foreign language or 2) jobs with requirements that exceed the normal minimum requirements set forth by DOL and 3) applicants who have gained required experience with their employer in a similar job. For those targeted audits, in addition to requesting a copy of the recruitment and supporting documents, DOL is also requesting a business necessity letter (BNL) to support the need for the requirement that triggered the audit.

Until now, DOL usually accepted an employer's job requirements, whether they exceeded the normal minimum requirements set forth by DOL or not. However, in the last month, that appears to be changing. Since DOL has more resources, with the close of the BECs, they appear to have devoted those resources to audits. Employers are reminded that if a PERM application is being filed that may necessitate a BNL, it is important to prepare that document in advance and before filing the PERM.

DOL Issues FAQs on the Prohibition of Payments by Employees for Labor Certifications

There seems to be confusion regarding what fees an employer must pay related to the PERM labor certification process. DOL issued FAQs to clarify and augment its regulations. Below are four of the most frequently asked questions and answers by DOL.

How does the Department define prohibited payments for "activity related to obtaining permanent labor certification"?

Pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the alien beneficiary will benefit that party. "Payment" includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other "in kind" payments; and free labor. This includes the prohibition against the alien's paying the employer's attorneys' fees in connection with the labor certification application.

What are activities relating to obtaining permanent labor certification?

"Activity related to obtaining permanent labor certification," for purposes of §656.12(b), includes, but is not limited to, recruitment activity, the use of legal services, and any other action associated with the preparation, filing, or pursuit of an application. This section prohibits any such payment. An alien may pay his/her own costs, including attorneys' fees for representation of the alien, except that when the same attorney represents both the alien and the employer, all costs related to preparing, filing, and obtaining the permanent labor certification must be borne by the employer.

Does the rule prohibit reimbursement agreements?

The regulation prohibits payment by the alien beneficiary or others of employer-incurred costs related to labor certification, including attorneys' fees. If, for example, a reimbursement agreement would require the employee to reimburse the employer for some or all of the attorneys' fees it incurred associated with preparing, filing and obtaining the labor certification, such reimbursement agreement would violate the Final Rule.

What should employers do who have entered into contracts where payments from aliens are either owed after July 16, or owed prior to July 16 but not paid until after July 16?

Section 656.12(b) prohibits an employer from seeking or receiving payment of any kind for activity related to obtaining permanent labor certification, including the employer's attorneys' fees. If the payment obligation, however, accrued prior to July 16, 2007, the employer has the right to seek the payment after the effective date. For applications filed on or after July 16, 2007, an employer who has sought this type of payment from the alien beneficiary of the application must answer "yes" to Question I-23 on ETA Form 9089 ("Has the employer received payment of any kind for the submission of this application?"), even if the employer has not yet received payment from the alien. Employers should describe the payment and from whom, and when appropriate clarify on the application, for the record, that the payment was for an obligation that accrued prior to the effective date of this provision (i.e., July 16, 2007). Employers answering "yes" to Question I-23 must be prepared, if requested by the Certifying Officer, to explain and support the details of such payment.

Department of State Updates

Employment-Based Immigrant Visa Availability Update

The December Visa Bulletin issued by the Department of State (DOS) showed significant retrogression in the second preference employment-based (EB) categories for nationals of India and China, and slight forward movement in the third preference EB categories for most foreign nationals.

EB-1

All countries: Current

EB-2

India: January 1, 2002 (retrogression of more than 2 years)
China: January 1, 2003 (retrogression of 3 years)
All other countries:  Current

EB-3

India: May 1, 2001 (forward movement of 1 week)
Mexico: April 22, 2001 (no forward movement)
China: October 15, 2001 (forward movement of 6 weeks)
Philippines: September 1, 2002 (forward movement of 1 month)
All other countries:  September 1, 2002 (forward movement of 1 month)

For a link to the current Visa Bulletin and listing of all categories, including family-based immigrant visa categories, please visit the DOS website at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

The new cut-off dates are effective on December 1, 2007. At that time, foreign nationals may either file their application for adjustment of status to permanent residence or may apply for an approval of their immigrant visa at a U.S. consular post abroad, if their immigrant visa priority date is before the cut-off date in their category outlined above.

DOS has advised that the retrogression on the second preference category for India and China is a direct result of extraordinarily heavy applicant demand for numbers, primarily by Citizenship and Immigration Services offices for adjustment of status cases. DOS has also advised that additional retrogressions in that category cannot be ruled out during the second quarter of the fiscal year, and that the third preference category is expected to move forward slowly as demand is evaluated.

Duane Morris is working with clients with current priority dates to gather the documentation and prepare applications for those now eligible to apply for permanent residence.

For Further Information

If you have any questions about this Alert or would like more information, please contact one of the attorneys in our Immigration Law Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.