The Department of Homeland Security (DHS) has issued a Supplemental Final Rule that provides guidance and analysis for the department’s No-Match Rule.  It supplements the original Final Rule of August 2007 and makes very few changes to it.  It states what steps responsible employers can take to resolve discrepancies identified in no-match letters so that they will be covered under a “safe harbor” and not be deemed to have constructive knowledge of illegally employing unauthorized workers.  In order for the rule to take effect, DHS will have to return to the Northern District Court in California to lift a preliminary injunction, originally issued last year.

Every year, the Social Security Administration informs thousands of employers through “no-match” letters that employees’ names and corresponding Social Security numbers, recorded on Form W-2 wage reports, do not match SSA’s records.  The No-Match provides guidance on the steps an employer may take when receiving such letters.  Employers who follow these steps will be protected against a finding of constructive knowledge of employing undocumented workers.

In particular, employers must try to resolve the discrepancy, or have the employee do so, within 90 days of receipt of the no-match letter.  If it is resolved, then the employer must complete a new Form I-9 within 93 days of receipt of the letter.  If the discrepancy is not resolved and the employee’s work authorization and identity are not verified, then the employer must terminate the employee or risk being found to have constructive knowledge of lack of employment authorization by DHS.

The Office of Special Counsel, in response to the issuance of the rule, has stated that as long as employers applies uniform procedures to all employees in responding to no-match letters, without a purpose to discriminate on the basis of perceived citizenship status or national origin, then employers will not be found to have violated anti-discrimination provisions of the Immigration and Nationality Act.

USCIS has increased the maximum period of stay for citizens of Canada and Mexico who work in the US as professionals pursuant to Trade-NAFTA (TN status).  The initial period and any extensions have been increased from one year to three years.

TN nonimmigrant status is for citizens of Mexico and Canada with at least a bachelor’s degree or appropriate professional credentials who work in certain fields pursuant to the North American Free Trade Agreement (NAFTA).  Such professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, some scientists and teachers.  The list is far more restrictive than that for the H-1B visa, since the latter is based on the position being a professional or specialty occupation.  This is defined as a position requiring the application of theoretical and practical knowledge that can only be gained through a bachelor’s degree (or equivalent) in a particular field.

USCIS has announced possible revisions to the H-1B visa in light of its published report documenting fraud and technical violations in the H-1B visa arena.  Such measures could include the use of “independent open-source data” to obtain information about visa seekers or the companies that file the petitions on their behalf.

Another option that USCIS is considering is a risk assessment program for applications “based on objective criteria relating to fraud indicators,” according to a USCIS spokesman, which would lead to greater scrutiny of H-1B petitions during the review process.  In addition, USCIS may modify the H-1B “evidentiary requirements” and revising the forms that employers use when filing applications, according to the USCIS spokesman.

Senator Chuck Grassley (R-Iowa), an ardent critic of the H-1B visa, publicly released the report on October 8th.  He quoted the report as demonstrating that 21% of 246 H-1B applications reviewed by USCIS staffers contained either outright fraud or “technical violations” of federal laws and regulations.

Greater scrutiny should be given to this report and its methodology.  The H-1B visa is a desperately needed visa to allow foreign professionals to work in the US and help the US maintain its global competitiveness.  Companies like Microsoft have been forced offshore because they cannot hire the technical professionals they need in the US.  This report should not be relied upon as a justification to restrict the H-1B visa program.  In fact, the cap should be eliminated and the current H-1B dependent provisions in the regulations, which require US workers with a large number of H-1B workers to conduct recruitment and not layoff US workers in certain situations, would protect US workers.  Fraud should continue to be investigated and deterred, but not at the expense of credible companies with genuine positions.

One of the most demonizing myths about undocumented aliens is that they blatantly disregard our immigration laws and obtain an unfair advantage.   

The fact is, there is no avenue for the vast majority of undocumented aliens (those that are not documented or whose authorization to remain in the US has expired) to apply to become legal permanent residents or to even work here temporarily.  According to opinion surveys of undocumented aliens, 98 percent would prefer to live and work legally in the US if they were allowed to do so.  However, most of them are not eligible for temporary or permanent visas, and even if they were, the wait for such visas can be many years or even decades.

Nonimmigrant visas run almost the full gamut of the alphabet.  They are visas issued for a temporary period and for a specific activity.   For example, there is a B-1/B-2 visa for tourists, an E-1/E-2 visa for treaty traders and investors, an F-1 visa for students, an H-1B visa for professional workers, a J-1 visa for exchange visitors (au pairs, students, professors, etc.), an L-1 visa for intracompany transferees, a K-1 visa for fiancés, an O-1 visa for extraordinary ability aliens, a P visa for athletes and entertainers, an R visa for religious workers, etc.  These nonimmigrant visas categories are very narrow and restrictive.

The H-2A and H-2B visas, the two primary nonimmigrant visas granting employment-authorization to essential workers, are inadequate for the millions of such workers in demand.  The H-2A visa applies strictly to agricultural workers for a temporary or seasonal position.  For the H-2B visa, the employer must demonstrate that the request for labor is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.   There are only 66,000 H-2B visas available each year.

Last year when comprehensive immigration reform was on the political table, bipartisan guest worker legislation was proposed.  Such legislation would have created a nonimmigrant visa for sorely needed essential workers in positions that are permanent in nature, not seasonal like the H-2s.  If the guestworker visa had succeeded, it could have greatly ameliorated the illegal immigration conundrum in our country by legalizing essential workers alien in high demand.
 
There are four primary ways for foreigners to obtain the green card, which is legal permanent residency in the US.  These are through:  (1) employment; (2) family; (3) asylee and refugee status and (4) the Diversity Visa Lottery.  For the employment-based category, there are only 5,000 immigrant visas available each year for low-skilled workers such as gardeners and construction workers.  This means that it can be many years before they can apply for legal permanent residency.  As discussed above, there is no viable nonimmigrant working visa to allow the bulk of unskilled workers to remain in the US while they wait for permanent legal status in the US.

For the family-based category, if they are not sponsored by an immediate relative – US citizen spouse, parent or child (over 21) – then the wait can also be many years and even decades.  Also, the family-based category is restricted to spouses, parents and children (under 21) of US citizens (immediate relatives); unmarried children and spouses of legal permanent residents; married sons and daughters of US citizens; and brothers and sisters of US citizens.

Obtaining asylee or refugee status is very difficult and only a small percentage of applications for such status are approved each year.  The applicant must show that he or she has a reasonable fear of persecution, or suffered past persecution, on account of race, religion, political opinion, nationality or ethnicity, or membership in a particular social group.  Asylee or refugee status is not available for victims of civil war, natural disasters, violent crime or extreme poverty.  There is temporary protected status (TPS) for citizens of countries in which the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that are so unsafe as to prevent the return of the foreign national.  The current countries designated for TPS are Burundi, El Salvador, Nicaragua, Honduras, Sudan, Somalia and Liberia.

The Diversity Visa Lottery is exactly what it says – a lottery.  Only 50,000 visas are available each year and 100,000 individuals are selected each year to apply for one of these visas.  Only individuals from certain countries – low demand countries - can apply and citizens from India or China are not included.

Almost all undocumented workers wish to become legal and permanent members of our society but are unable to do so because of the dearth of visas.  They do not gain any unfair advantages living in the shadows, but rather are some of the most disadvantaged, vulnerable and exploited members of our community.  It is time that we grant these hard-working and critically needed workers the status they covet and deserve.