September 2009 ★ Archive of Immigration News

U.S. Citizenship and Immigration Services (USCIS) reminded (PDF) federal contractors and subcontractors that effective September 8, 2009, they “may be required” to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The regulation states that federal contracts will be awarded only to employers who use E-Verify to check employee work authorization.

The E-Verify federal contractor rule extends use of the E-Verify system to cover both federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after September 8 will include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.
More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility, according to USCIS. The agency noted that since October 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

The Department of State’s October 2009 Visa Bulletin shows a cut-off date for employment-based third preference visa numbers of June 1, 2002, for all chargeability areas except for China-mainland born (February 22, 2002); India (April 15, 2001); Mexico (May 1, 2002); and Philippines (June 1, 2002).
All chargeability areas are current for EB-2 numbers, except for China-mainland born (March 22, 2005), and India (January 22, 2005). For the third preference “Other Workers” category, all chargeability areas have a cut-off date of June 1, 2001, except for India (April 15, 2001).

Meanwhile, the non-minister special immigrant program expires on September 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after September 30, 2009. Visas issued before that date will only be issued with a validity date of September 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight September 30, 2009.

Also, the employment fifth preference (I5, R5) immigrant investor pilot program has been extended through September 30, 2009. I5 and R5 visas may be issued until the close of business on September 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after September 30, 2009.

The Department of Labor’s Wage and Hour Division proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The proposed rule reexamines the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. The Department also proposes to provide for enforcement under the H-2A program so that workers are protected when employers fail to meet the requirements of the H-2A program. Read the rest of this entry »

The Department of Homeland Security (DHS) issued a proposed rule [74 Fed. Reg. 46938 (Sept. 14, 2009) PDF] on September 14, 2009, proposing to recognize a Commonwealth of the Northern Mariana Islands (CNMI)-specific nonimmigrant investor visa classification. The “E-2 CNMI Investor” status is one of several CNMI-specific provisions in the Consolidated Natural Resources Act of 2008, which extended most provisions of federal U.S. immigration law to the CNMI. This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before the “transition period,” which begins on November 28, 2009, and ends on December 31, 2014. With E-2 CNMI Investor nonimmigrant status, eligible CNMI investors would be able to remain in the CNMI for an initial period of two years, and the period would be renewable through the duration of the transition period. CNMI investors would be able to exit and enter the CNMI with valid E-2 CNMI Investor visas.

DHS said it is proposing temporary provisions for the transition period “to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status.”

See also Related Q&A (PDF)

On August 19, 2009, the Department of Homeland Security (DHS) proposed (PDF) to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. The U.S. District Court for the Northern District of California had enjoined implementation of the 2007 final rule on October 10, 2007. After further review, DHS said it plans to focus its enforcement efforts relating to the employment of unauthorized workers on increased compliance through improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DHS noted that in fiscal year 2010, U.S. Citizenship and Immigration Services plans to improve the E-Verify system’s ability to automatically verify international students and exchange visitors through the incorporation of ICE’s Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced, DHS said. In 2010, ICE will launch a new version of SEVIS (SEVIS II), which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch occurs.