Today, the US House heard testimony on legislation to require all employers to participate in E-Verify, the federal electronic employment verification system  that allows an employer to verify an employee’s work authorization online.  The system is notorious for its many flaws and today representatives and witnesses voiced concern that the law would overtax the Social Security Administration (SSA) when it is trying to reduce the backlog of disabilitiy claims. 

The following is a statement from MALDEF:  “MALDEF strongly supports fixing this nation’s broken immigration system, but forcing a deeply flawed system upon an unstable economy is not the answer. A mandatory EEVS will not only impose unnecessary financial burdens upon U.S. businesses, it will lead to unnecessary and unlawful terminations when employers receive tentative non-confirmation reports from the government and they or their employees do not complete the process. Further, EEVS will result in discrimination by employers who choose to not comply with the program. Additionally, a mandatory EEVS will drive the undocumented into an underground labor force without legal protections which will affect all U.S. workers and harm businesses that comply with the law. Recognizing the dangers that come with a mandatory EEVS which will increase discrimination against Latinos and other national origin minorities, present burdensome costs to businesses, and threaten the jobs of nearly 13 million native-born U.S. citizens, Congress should reject the pending legislation.”

According to Workforce Management, an alternative to mandatory E-Verify is the New Employee Verification Act, sponsored by Rep. Sam Johnson, R-Texas. Johnson’s legislation would eliminate the current I-9 process and require that companies submit new-hire information electronically to the Social Security Administration through a child-support enforcement system that about 90 percent of U.S. employers use.

According to Workforce Management’s online article of May 6, 2008:  “Proponents of the Johnson bill say E-Verify is inefficient, prone to error and incapable of detecting identity fraud. The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management, criticizes E-Verify for relying on the Social Security database, which has a 4.1 percent error rate and could mistakenly declare millions of people ineligible for employment.

The Johnson measure would address such problems through an appropriation that would clean up the Social Security database before the verification system goes into effect, according to Mike Aitken, SHRM director of government affairs. The bill also provides a safe harbor for employers who use the system, reduces the number of identification documents for new hires from 25 to four and allows people to put additional protections on their Social Security numbers.”

According to the April 18, 2008, notice from USCIS regarding F-1s who received an H-1B visa number but who did not designate change of status because of the cap-gap:

“USCIS has determined that it will allow petitioners of F-1 students whose H-1B petitions were randomly selected to receive an H-1B visa number for FY2009 following the closure of the filing period, to now request a change of status on behalf of qualified beneficiaries, if such requests are received within 30 days of the issuance of the receipt notice.” 

The Low Wage Immigrant Worker Coalition (LWIW) has filed the following comments in the Federal Register in opposition to the recently published Social Security no-match rule published by US DHS:

“The LWIW Coalition opposes the implementation of the DHS rule on the following grounds: the rule does not address the serious issues that were raised by the court in its order granting the preliminary injunction in AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal. filed on Aug. 29, 2007); DHS has failed to demonstrate that the Social Security Administration (SSA) no-match letter is an effective immigration enforcement tool; hundreds of thousands of lawfully authorized workers will lose their jobs; the SSA will be overburdened by the rule; and the rule will have a detrimental impact on the economy.”

On April 14, 2008, USCIS conducted two computer-generated random selection processes for the H-1B bachelor’s and master’s caps.  USCIS received approximately 163,000 petitions between April 1st and April 7th, the period of eligibility for the fiscal year 2009 cap.  It will return those petitions that do not receive a number and generate a receipt for those that do by June 2, 2008.  It expects to adjudicate the petitions within eight to ten weeks.  It will conduct premium processing for those cases that filed under such processing.  Also, it will retain “wait-listed petitions, to replace petitions that are denied, withdrawn or found ineligible under the cap.  USCIS will notify petitioners if their petitions are wait listed.

The following is from a DHS press release of April 4, 2008: 

 ”The U.S. Department of Homeland Security released today an interim final rule extending the period of Optional Practical Training (OPT) from 12 to 29 months for qualified F-1 non-immigrant students. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program. … Another aspect of the rule responds to the situation in which an F-1 student’s status and work authorization expires before he or she can begin employment under the H-1B visa program. The interim final rule addresses this problem by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions.” 

There are still questions about petitions filed requesting consular processing, as opposed to change of status, for beneficiaries in OPT status whose 60-day grace period will end before October 1, 2008.  Hopefully, USCIS will allow these beneficiaries to change the requested form of processing to “change of status.”

According to Computerworld, H-1B visa supporters have asked the Bush administration to extend the time that foreign graduates of U.S. universities can work pursuant to the optional practical training (OPT) of their F-1 student visas from one year to 29 months.  This plan would not increase H-1B numbers but ultimately increase their chances of obtaining an H-1B visa for the following year.

Currently, there are only 85,000 H-1B visa numbers available each year (65,000 for those with a bachelor’s degree and 20,000 for those with a master’s degree from a US institution).  Last year, the bachelor’s cap was reached on the first day that the government allowed the H-1B petition to be filed (April 1st).  It is anticipated that the cap will be reached on the first day this year as well. 

USCIS has announced that it will consider petitions filed within 5 business days of the final receipt date (the day that the cap is reached) to be included within the random selection process for the H-1B cap.  If April 1st is the anticipated receipt date, then this would mean that April 7th would be the last day this year for those seeking an H-1B visa number to file the petition.

USCIS has revised its requirement that the FBI name check clearance be obtained before any immigration benefits applications can be approved, regardless of the processing times for such clearance.  According to Michael Aytes, Associate Director, Domestic Operations, USCIS, dated February 4, 2008, “Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the 1-485,1-601,1-687, or 1-698 and proceed with card issuance. The FBI has committed to providing FBI name check results within this timeframe.”

According to the American Immigration Lawyers Association, positive changes may soon bring about speedier security clearance checks.  DHS Secretary Chertoff has indicated that USCIS and the FBI are revamping the name check process in the hope that most of the backlog is cleared within six months.

On November 30, 2007, Bill Wright, spokesman, USCIS Office of Communications, wrote:

 Immigration Daily’s 1/30/07 comment, “FBI Delays to End,” is not telling the entire story. USCIS and the Federal Bureau of Investigation (FBI) are working together to process name checks as quickly as possible without compromising security or public safety. To this end, we have examined the existing name check system and acted to address the problem through two strategies:

First, USCIS and the FBI conducted a joint risk assessment which resulted in process improvements that permit us to focus on cases of concern.

Second, USCIS and FBI have allocated additional resources to the process. Over the next year, USCIS is planning to commit a total of $15.5 million to address the backlog of FBI name checks.

Please note, however, USCIS continues to require FBI name checks for the same categories of applications and no case will be approved without a cleared name check. We will continue to work with the FBI to reduce waiting times; but, not at the expense of national security and public safety.”

USCIS has announced that employers must use the new Employment Eligibility Verification Form I-9 no later than December 26, 2007.  On November 7, 2002, USCIS announced the availability of the revised form, which has a revision date of June 5, 2007.  Employers must complete the Form I-9 for all new hires.  Employers that fail to use the revised form by December 26th will be subject to penalties.  Instructions on completing the form can be found at www.uscis.gov.