Alerts and Updates

Updates from USCIS: Parole in Place, E-Verify and December Visa News

November 19, 2013

Parole in Place (PIP) Provides Pathway to Green Card for Families of Service Members

While this solution seems like a reasonable fix for one of the glaring deficiencies in E-Verify, it could also pose significant problems for the true owners of the SSNs that get locked.

The U.S. Citizenship and Immigration Services (USCIS) has released a policy memorandum addressing the parole of spouses, children and parents of active duty members of the U.S. Armed Forces, members of the Selected Reserve of the Ready Reserve (including the National Guard) or veterans who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve. Generally, a parole is granted, under Immigration and Nationality Act § 212(d)(5)(A), as a discretionary status for someone to enter the United States for "urgent humanitarian reasons or significant public benefit" to an alien applying for admission to the United States. These paroles have only been granted "sparingly" until now. The new USCIS memorandum provides instead for a parole in place (PIP) and that, absent a criminal conviction or other serious adverse factors, the government can use its discretion to permit the spouses, children and parents of military members or veterans to now remain in the United States.

The practical effect of this policy change is the ability of these close family members of active or former members of the Armed Forces, who entered the United States without inspection or who have overstayed their visas, to now be able to apply for permanent residence (i.e., green cards) while physically present inside the United States—after the PIP has been granted. As a result of this new policy, they will not be required to travel back to their home country for this process, and no waivers for unlawful presence will be required.

New E-Verify Safeguard May Cause Issues for Employees and Employers

On Monday, November 18, 2013, USCIS Director Alejandro Mayorkas announced the release of a new E-Verify enhancement designed to combat identity fraud. The enhancement is designed to detect and prevent the fraudulent use of Social Security Numbers (SSNs) to gain work authorization by enabling USCIS to lock an SSN within the E-Verify system if it appears to be misused. Once the SSN is locked, E-Verify will generate a Tentative Nonconfirmation (TNC), and the employee receiving this TNC will have to contest the finding at the local Social Security Administration field office. Once a Social Security field officer confirms the employee's identity and matches the SSN, the TNC will be changed to "Employment Authorized" status in E-Verify.

While this solution seems like a reasonable fix for one of the glaring deficiencies in E-Verify, it could also pose significant problems for the true owners of the SSNs that get locked. As anyone who has been a victim of identity theft and all it entails knows, there is no quick resolution to an identity theft problem, especially when the Social Security Administration is involved. When encountering this situation, employers must be vigilant and remember that no adverse employment action may be taken against an employee while a Tentative Non-Confirmation remains unresolved.

December Visa Bulletin, EB-2 for India Retrogresses

The employment-based second preference category is current for all countries of chargeability, except India and China. December will have a retrogression of India EB-2 applicants to a cut-off date of November 15, 2004, in large part due to the rapid advancement of the India EB-2 cut-off dates in the past several months. Further retrogression is possible, since the demand for visa numbers is exceeding the available supply. The EB-2 cut-off date for China advanced by a month, to November 8, 2008. In the December 2013 Visa Bulletin, EB-3 cut-off dates for all countries of chargeability, China, and Mexico advance by a full year, to October 1, 2011. The cut-off date for the Philippines moves forward to January 8, 2007. India's EB-3 cut-off date retrogresses by a few weeks to September 1, 2003, and Philippines' cut-off date only advanced by a few weeks.

Employment-Based Preference Category All Chargeability Areas Except those Listed China—
Mainland Born
India Mexico Philippines
EB-1 Current Current Current Current Current
EB-2 Current Nov. 8, 2008 Nov. 15, 2004 Current Current
EB-3 Oct. 1, 2011 Oct. 1, 2011 Sept. 1, 2003 Oct. 1, 2011 Jan. 8, 2007

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration 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.