DHS Issues Final Rule on No-Match Letters

October 27th, 2008

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 Increases Period of Stay for TN Canadians and Mexicans

October 27th, 2008

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 Announces Possible Revisions to H-1B Program

October 12th, 2008

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.