Immigration News: H-1B Cap, New AP/EAD Card, Worksite Enforcement

H-1B Cap Count for Fiscal Year (FY) 2012:

As of 4/15/11, the U.S. Citizenship & Immigration Services (USCIS) received approximately 7,100 H-1B petitions counting toward the 65,000 cap and 5,100 H-1B petitions toward the 20,000 cap exemption for individuals with advanced degrees.

New Advance Parole (Travel Document)/Employment Authorization Document (EAD) For Adjustment of Status Applicants

On February 11, 2011, USCIS began issuing a card that demonstrates both employment and travel authorization.  This card is issued to individuals who file applications for permanent residence and is an acceptable List A document for Form I-9. An applicant may receive the new card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485.

Sample card:

USCIS Issues Revised Handbook for Employers

USCIS recently released a revised version of the Handbook for Employers – Instructions for Completing Form I-9 (Form M-274). Employers should go to http://www.uscis.gov/files/form/m-274.pdf  to download the revised Handbook, dated 01/05/11.

The revised Handbook includes:

·  Expanded guidance on how employers should reverify employment eligibility for workers who provide I-9 documentation that establishes temporary work authorization.

·  The types of I-9 documentation available to lawful permanent residents(LPRs), refugees and asylees, Temporary Protected Status (TPS) recipients, H-1B and H-2A visa holders, exchange visitors and foreign students.

·  Guidance on workers with temporary employment authorization for whom extensions of stay have been filed (i.e., STEM OPT extensions).

·  Guidance on how to handle name changes for current employees and accepting a new hire’s documents when the name on the document is different than the name on the Form I-9.

·  Guidance for employers in the Commonwealth of the Northern Mariana Islands (CNMI) who must use the Form I-9 CNMI, including lists of acceptable documents.

·  Expanded guidance on using an electronic Form I-9.

·  New sample images of certain List A documents.

More on Worksite Enforcement

The Department of Homeland Security (DHS), through the USCIS, and in partnership with federal, state, and local government agencies, has developed interagency programs in order to maximize the government’s ability to verify and share information pertaining to a worker’s employment eligibility or a foreign national’s immigration status. The development of technology and web based programs are at the core of the government’s anti-fraud and worksite enforcement efforts. While we praise the ongoing initiatives, we understand that many individuals and businesses find themselves overwhelmed by the amount of information available on some programs and confused by the lack of details in others. The chart below provides basic and important information about five programs that can be easily accessed by businesses, individual users, or other federal, state, and local agencies in order to verify a worker’s employment eligibility or a foreign national’s immigration status.  Please note that the government relies on other interagency resources and procedures not described in this chart to conduct security and background checks on all foreign nationals seeking immigration related benefits or seeking to enter the U.S.

	PROGRAMS
	E-Verify	E-Verify Self Check (Self-Check)	Validation Instrument for Business Enterprises (VIBE)	Systematic Alien Verification for Entitlements (SAVE)	Petition Information Management Service (PIMS)
Administering Agency	USCIS in partnership with the Social Security Administration (SSA)	USCIS in partnership with the SSA	USCIS in partnership with an independent information provider (IIP) – currently the Dun & Bradstreet (D&B) database	USCIS	U.S. Department of State’s (DOS) Kentucky Consular Center (KCC).
Purpose	Free Internet-based system that allows businesses to determine the eligibility of their employees to work in the U.S.	Free Internet-based  system that allows individual users over the age of 16 to check their employment eligibility status in the U.S.	Free web-based program which uses commercially available data to validate basic information about companies or organizations petitioning to employ FNs	Online interagency system designed to aid benefit-granting agencies in determining an applicant’s immigration status so that only entitled applicants receive federal, state, or local public benefits and licenses	Created by DOS to provide consular posts with official, inter-agency, notification of H, L, O, P, and Q visa classification approvals Consular post must confirm a petition approval in PIMS before issuing a visa
Accessible By	U.S. businesses and employers Participation is optional for U.S. businesses but mandatory for most federal contractors	Pilot program is available to users who maintain an address and are physically located in Arizona, Colorado, Idaho, Mississippi, or Virginia It is unlawful for a current or potential employer to request an employee’s Self-Check result Participation is optional	USCIS pilot program	Federal, state, or local benefit-issuing government agencies and licensing bureaus in the U.S. Participation is optional	U.S. consular posts Participation is mandatory
Method to Address System Error	Tentative non- confirmation letter (TNC) refers the employee to the appropriate government agency to review and resolve the mismatch	User is given instructions to contact DHS or SSA. In the alternative, user can wait for the employer to initiate an E-Verify check	USCIS will issue a request for evidence (RFE) or a Notice of Intent to Deny (NOID) if it is necessary to resolve relevant inconsistencies and make a determination based on the totality of the circumstances The petitioner may also contact D&B to update their record and prevent future RFEs/NOIDs	Agency or foreign national (FN) can contact USCIS, Customs and Border Protection (CBP), or Immigration and Customs Enforcement (ICE) depending on the nature and origination of the error The FN can also submit a FOIA request	Consular posts must notify the KCC by e-mail and request verification. Petitioner or attorney is not allowed to contact KCC directly

The government is continuously working and engaging the public in order to enhance the programs described above. In the interim, users may experience delays when trying to resolve a problem. Navigating the maze of agencies that are connected to these programs requires patience and a practical understanding of the role of each agency. JSBarkats PLLC lawyers have extensive experience dealing with employment eligibility verification and visa issues and are able to assist you. Please contact Eva Frecker at 646.502.7001 or by email at efrecker@jsbarkats.com.