VISANOW Voice Newsletter - August 2007

Employers Responsibility for “No-Match” Letters

The U.S. Department of Homeland Security (DHS) recently announced new rules on how U.S. employers are to deal with the receipt of “No-Match” letters from the Social Security Administration (SSA). These letters are issued by the SSA when an employee’s name and Social Security Number as reported by the U.S. employer do not match. This affects all employers as all new employees are required to fill out an I-9 form which requests an individual’s Social Security Number.

 

The rules state that “No-Match” letters CAN be used to show that the U.S. employer has constructive knowledge that an employee does not have valid work authorization. If issue is not resolved within 90 days and employment of that individual continues, then the U.S. Immigration and Customs Enforcement (ICE) can penalize the employer as they knowingly continued to employ an unauthorized worker. The new rules also prescribe new “Safe Harbor” procedures under which these employers can protect themselves from liability when faced with these circumstances.

 

The rules serve to clarify the circumstances under which a U.S. employer can be deemed to have constructive knowledge of an employee’s lack of work authorization. Specifically, this can occur where:

 

1. The SSA issues an “Employer Correction Request” stating that “the combination of name and SSN submitted for an employee does not match SSA records”, or
2. The DHS issues written notice that “the immigration status document, or employment authorization document, presented or referenced by the employee…was assigned to another person, or that there is no agency record that the document was assigned to anyone.”

While this does serve to braden the array of situations in which an employer can be exposed to liability for unauthorized employment, the rules do provide guidance on “safe harbor” measures under which employers can protect themselves. These measures are listed below:

 

1. The U.S. employer is allowed an opportunity to check and confirm its records in efforts to determine whether the cited mismatch is the result of a “typographical, transcription, or similar clerical error”. In this manner, the employer can be insulated from liability by demonstrating that the mismatch was a result of a simple error in reporting.
2. If the mismatch was not the result of such error, the employer is afforded the opportunity to “request that the employee confirm that the employer’s records are correct”. If the employee so confirms, the employer would request that the employee directly resolve this issue with the SSA.
3. The rules provide a process for verification if the discrepancy is not settled within 90 days of the issuance of any no-match letter. These rules require the partial execution of a new I-9. The key concept here is that this new I-9 cannot include any documentation that was itself the source of the initial no-match letter. If the employee cannot generate evidence sufficient to complete the new I-9 required by the rules, termination is the appropriate remedy in order for the employer to protect themselves from liability. Barring such termination at this point, the employer CAN be deemed to have constructive knowledge of the employee’s lack of valid work authorization. This constructive knowledge can then be used to show the employer to have unlawfully employed the individual.

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USCIS Issues Service Center and Lockbox Receipting Update

The United States Citizenship and Immigration Services (USCIS) has experienced a tremendous increase in the number of applications being filed resulting in a front log of cases awaiting data entry. The USCIS will prioritize data entry for specific form-types and has assured that the Premium Processing cases will still continue to be processed within 15 days, coinciding with current policies and procedures.

 

The actual received date will be honored and recorded and this date will appear in the “Received Date” box on the Form I-797 (Notice of Action). The received date on the form is different from the “Notice Date” box. “Notice Date” identifies the date the receipt notice was actually generated.

 

The USCIS vows to update the current receipt times on a weekly basis. As of August 17th the USCIS has completed data entry and has issued receipt notices for Applications and Petitions received on or before the following:

 

California Service Center	Form Number	Date Received
	N-400	7/22/2007
	All Other	8/7/2007

Nebraska Service Center	Form Number	Date Received
	I-131	7/18/2007
	I-140	7/18/2007
	I-485 (Employment Based)	7/2/2007
	I-765	7/18/2007
	N-400	7/24/2007
	All Other	8/2/2007

Texas Service Center	Form Number	Date Received
	I-131	6/30/2007
	I-140	8/13/2007
	I-485 (Employment Based)	6/30/2007
	I-765	6/30/2007
	N-400	7/12/2007
	All Other	7/30/2007

Vermont Service Center	Form Number	Date Received
	I-130	7/24/2007
	I-129	8/1/2007
	I-539	8/5/2007
	N-400	7/11/2007
	All Other	8/2/2007

USCIS Lockbox	Form Number	Date Received
	I-485 (Family Based)	7/29/2007

 

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Proposed Rule: Green Cards without Expiration Must be Replaced

The USCIS has announced a proposal that would require all lawful permanent residents who carry Permanent Resident Cards, or green cards, to apply for replacements for those original cards without an expiration date. Permanent Resident Cards allow permanent residents the right to live and work in the United States. Although cards that were issued between 1977 and 1989 have no expiration date, they currently continue to be evidence of lawful permanent residence. Since 1989, these cards have been issued with a ten-year validity period, at which point they are required to renew the card.

 

For Permanent Resident Cards to serve their purpose as proof of identity and work authorization, the USCIS has proposed that cards without expiration dates will be required to be replaced. Under this proposal, there would be a 120-day period for filing Form I-90 (Application to Replace Lawful Permanent Resident Card) along with the filing and biometrics fees. After the I-90 is filed, an appointment will be scheduled at an Application Support Center where a photograph and fingerprints will be taken for identity verification and background check.

 

Those who file within the 120-day period of the proposed rule will receive their new cards before the old card is terminated. Another proposal to this rule is granting the USCIS the authority to announce the termination date of the old cards in a separate Federal Register notice. Cardholders who file Form I-90 late would risk a delay in the issuance of a new card, and put their ability to travel and work in jeopardy.

 

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September 2007 Visa Bulletin

The U.S. Department of State (DOS) has released the September 2007 Visa Bulletin. Previously, the DOS had stated in the August 2007 Visa Bulletin that all categories would remain unavailable until the beginning of the new fiscal year. Fortunately, the new September bulletin shows some employment-based immigrant visa availability for most categories. For the remainder of fiscal year 2007, immigrant visas are unavailable for the third preference category (EB-3) from China, India, and Mexico. However, cut-off dates have been reinstated for the rest of EB-3 skilled worker, EB-2, and EB-1 categories. The DOS has reported that the visa number availability is due to the fact that the U.S. consulates abroad, which receive monthly allocations of visa numbers, have returned the unused numbers.

 

The employment-based cut-off dates are as follows:

 

Employment- Based	All Chargeability Areas Except Those Listed	China	India	Mexico	Philippines
1st	01 Jan 2007	01 Jan 2007	01 Jan 2007	01 Jan 2007	01 Jan 2007
2nd	01 Jan 2007	01 Jan 2006	01 Apr 2004	01 Jan 2007	01 Jan 2007
3rd	01 Jan 2007	U	U	U	01 Aug 2002
Other Workers /td>	U	U	U	U	U

 

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Informal Projections for October 2007 Employment-Based Visa Bulletin

On August 20, 2007, Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department, informally spoke to an American Immigrant Lawyers Association (AILA) Representative about the upcoming October Visa Bulletin.

 

Mr. Oppenheim predicted the following:

 

• Visa availability in the First and Second Preference Employment-Based categories for all countries in October would closely match that seen in the September 2007 Visa Bulletin.
• In the Third Preference category, the cut-off dates are likely to be similar to those dates found in the January 2007 Visa Bulletin.
• For the Other Worker category, the expected cut off date is October 1, 2001.
• As of this time, the State Department does not yet have sufficient information from which to project the Employment-Based Fourth Preference category.
• The Employment-Based Fifth Preference category is expected to go current for all countries.

It should be emphasized that the above projections are informal only and are subject to modification at any time.

 

On a related note, the annual numerical limitation for the Employment Based Fiscal Year 2007 will be utilized this year, a goal the State Department sought to achieve by the dramatic advance in visa cutoff dates reported in the July 2007 Visa Bulletin.

 

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