THOMAS C. HOCHSTATTER
GAIL K. McCARTHY
JOSEPH M. RIVAS
MICHAEL C. RUNDE
______
KELLEY A. CHENHALLS
JENNIFER L. NISSEN
PRIYA M. BHATIA
H o ch s ta t t e r , M c C a r t h y,
R i va s & Ru n d e , S . C .
I M M I G R A T I O N
A T T O R N E Y S
TELEPHONE (414)962-7440
FAX (414)962-0353
www.hmrvisa.com
Legal Assistants:
GILLIAN A. STEWART
RUTH D. INGRAHAM
Immigration Newsletter
Issue No. 8 (June 2011)
This Month’s Contents:
•
Changes on the Horizon for the EB-5 Immigrant Investor Program p.1
•
Employers Beware: Social Security “No-Match” Letters Resume p.2
•
Prospects for Immigration Reform Remain Dim p.2
•
States Flex Their Muscles on Immigration p.3
•
TPS for Haitians Extended through January 22, 2013 p.3
•
EAD Restrictions Eased for Libyan Students p.4
•
Finally, NSEERS Registration is Terminated p.4
•
Citizenship, I-9, and J Visa Resources Online p.4
Changes on the Horizon for the EB-5 Immigrant Investor Program
tations, uncertainty, and slow processing times, leading many to call for its complete review. In May, U.S.
Citizenship and Immigration Services (USCIS) responded, and promulgated proposed rules offering three
fundamental changes to the way it processes certain
regional center filings, but stopped
short of a total overhaul.
The Immigrant Investor Program, commonly referred
to as the EB-5 Program, makes green cards available to
eligible immigrant investors and their
family members who invest $1 million
in commercial enterprises that create
at least 10 U.S. jobs (or $500,000 in
targeted employment areas). At long
last, the EB-5 Program may be undergoing significant changes in the upcoming months that will make the program
more attractive to prospective investors. First created in 1990, the program
has been plagued by changing interpre-
The first change is a fast-track for applications of enterprises that are fully
developed and ready to be implemented, with an option for premium
processing to further accelerate the
review. Premium processing guarantees processing within 15 calendar days. Second, USCIS proposes
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the creation of specialized intake teams comprised of
economists and subject-area experts to review proposals, communicate directly with applicants, and streamline the resolution of issues without the need for formal requests for additional evidence (RFEs). Third,
USCIS proposes an “expert decision board” comprised
of economists and adjudicators and supported by legal
counsel, to make decisions on new EB-5 regional center applications.
ployers advising them that certain Social Security Numbers (SSN) provided by employees do not match the
names of the individuals that SSA has on file for such
numbers. (The SSA stopped sending no-match letters
to employers in 2007 as a result of litigation.) While a
“no-match” may be caused by the use of fraudulent
documents by an individual unauthorized to work, it
can also be the result of a simple typographical error
or a change to an individual’s status such as a name
change.
The proposal is available for
public comment until June
17, 2011. Those who are interested in the EB-5 program
are encouraged to weigh in.
In the current environment of
aggressive workplace enforcement by ICE, employers, with
the advice of counsel, are wise
to develop an effective strategy
to address such letters in a lawful yet non-discriminatory manner. The new SSA no-match letters advise employers that its
receipt, in and of itself, should
not be the basis of adverse action against the employee.
However, more detailed guidance on what exactly an
employer’s obligations are remain unclear. On one
extreme, an employer should not take adverse action
against the employee merely on the basis of the letter.
On the other, an employer who takes a laissez faire approach to receipt of such a notice can lead to trouble.
Stay tuned as more guidance unfolds.
ICE Expands STEM Programs
Eligible for OPT
U.S. Immigration and Customs Enforcement (ICE) recently expanded by 50 the list
of science, technology, engineering, and math (STEM)
degree programs that qualify eligible graduates on F-1
student visas for Optional Practical Training (OPT). By
expanding the list of STEM degrees (including such
fields as neuroscience, medical informatics, pharmaceutics and drug design, mathematics, and computer
science), the Administration announced it is seeking to
address shortages of talented scientists and technology experts in certain high tech sectors.
Prospects for Immigration Reform Remain Dim
Under the OPT program, foreign students who graduate
from U.S. colleges and universities are able to remain
in the U.S. and receive training through work experience for up to 12 months. Students who graduate with
one of the STEM degrees can remain for 17 months ,
but only if the employer is enrolled in E-Verify. (See p.
3 for more about E-Verify.)
Despite several recent high-profile speeches by President Obama on immigration, congressional action to
fix our nation’s broken immigration system appears unlikely for the foreseeable future. The President recently
spoke about immigration in El Paso where he cited an
effective and efficient immigration system as being the
bedrock of economic competitiveness in the 21st Century. This speech came on the heels of a commencement speech to the graduates of Miami Dade College
in Florida where Obama stressed the need to pass the
DREAM Act and other measures that allow hard-working, high-achieving immigrants to stay in this country.
Employers Beware: Social Security “No-Match” Letters Resume
After a long hiatus, the Social Security Administration
(SSA) has resumed issuing “no-match letters” to em2
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who use false documents to obtain employment. Both
Utah and Georgia’s laws face challenges in federal
courts by several civil liberty groups. Meanwhile,
Texas was mulling several stringent immigration proposals at the end of its legislative session, including
one championed by Governor Rick Perry addressing
“sanctuary cities.” All failed to muster enough support
in last minute negotiations.
States Flex Their Muscles on Immigration
State legislatures continue to be the staging ground
for real action on immigration, and the U.S. Supreme
Court recently has served as the final arbiter of who
has authority in these matters, the states or the feds.
Just recently, the Supreme Court upheld a controversial Arizona law requiring businesses to participate
in the federal E-Verify program or risk losing their
business license. E-Verify is an Internet-based program run by the federal government that compares
information from an employee’s I-9 form to data from
U.S. government records. Opponents argued that the
Arizona law usurped the federal government’s authority on immigration. The
Supreme Court disagreed, upholding the measure in a 5-3
ruling. Arizona’s even more
controversial “papers please”
law (SB1070), which grabbed
headlines last April and has
been blocked at several stages
in the federal appeals process,
is widely expected to reach
the high court sometime next
year. The Court’s decision in
the Arizona E-Verify program certain has emboldened
supporters of SB1070, and it is likely to spawn copycat
legislation at the state level.
Still, some states are moving in the other direction
and enacting more liberal policies toward immigrants.
Illinois lead the way in May with a statewide cancellation of participation in the DHS Secure Communities program. Under that program, the fingerprints of
everyone booked by police are cross-checked for immigration violations in a database
maintained by DHS. New York and
Massachusetts followed suit in
late May with similar statewide
cancellations. All three states have
large immigrant populations and
are led by Democratic governors.
In the absence of federal immigration reform, the states are
becoming the new battle ground
on immigration enforcement and
regulation. What is particularly troubling about these
initiatives and the recent Supreme Court decision is
the danger of a muddled jumble of state immigration
laws, each of which claims to track the federal law,
but in reality has its own requirements, making it difficult as well as expensive for multi-state employers to
comply with the law. This developing patchwork also
could lead to a myriad of immigration enforcement
policies.
Indeed, conservative state legislators around the
country have jumped into the fray with similar efforts. Utah recently passed a bill requiring businesses
to participate in E-Verify and establishes immigration
enforcement measures including an “Arizona-like”
provision which would require officers to verify the
immigration status of individuals who are stopped
under a number of circumstances, but tempered it
with a measure that would create a guest worker program and a migrant worker partnership with Mexico.
Georgia also passed a bill almost identical to Arizona’s
SB1070, requiring police to demand proof of legal
status of anyone they suspect of being in the country
illegally, empowering police to check the immigration
status of criminal suspects, requiring businesses to
use E-Verify, and imposing harsh sentences on those
TPS for Haitians Extended through January 22, 2013
In May, DHS announced an extension of Temporary
Protective Status (TPS) for Haitians affected by the
devastating earthquake that rocked the Caribbean
country in January 2010. Haitians already granted
TPS may re-register to have their status extended for
an additional 18 months, until January 22, 2013, and
have until August 22, 2011 to do so. Those registering
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for the first time now have until November to apply
for the designation. In addition, DHS is re-designating
Haiti for TPS; in other words, eligible Haitian nationals
who have continuously resided in the United States
since January 12, 2011, also will be able to obtain TPS
through January 22, 2013. Under the original designation, TPS applicants needed to show that they had
continuously resided in the United States since January 12, 2010, but re-designation now permits eligible
individuals who arrived up to one year after the
earthquake in Haiti to receive the protection of TPS.
Many of these individuals were authorized to enter
the United States immediately after the earthquake
on temporary visas, humanitarian parole and through
other immigration measures. Approximately 48,000
Haitian nationals reside in the United States with TPS.
(DHS) announced the end of NSEERS (the National
Security Entry-Exit Registration System), a special
registration process for male foreign nationals from
certain countries who are over the age of 16 and who
entered the U.S. as nonimmigrants prior to September 10, 2001. NSEERS was implemented in 2002 as a
national security measure following the September 11
attacks, and sought to record the arrival and departure of individuals mostly from Middle Eastern countries. Such registrants went through secondary inspection on each arrival to the U.S. and were required to
register upon departure at one of the 100 plus designated ports of departure. In the ensuring years, DHS
and the Department of State have increased surveillance measures, thus rendering the program obsolete.
While many foreign nationals – and especially those
from the Middle East – continue to be referred to
secondary inspection, such referrals are no longer
automatic.
EAD Restrictions Eased for Libyan Students
Citizenship, I-9, and J Visa Resources Online
USCIS and DOS are making it easier to find information about immigration online. USCIS has created the
Citizenship Resource Center (http://www.uscis.gov/
citizenship) that has information about the process of
gaining US citizenship designed for individuals, teachers, and organizations. It also launched “I-9 Central”
(www.uscis.gov/I-9central) a new online resource
that website provides employers and employees with
resources, tips, and guidance on completing the I-9
form as well as a discussion of common mistakes and
guidance on avoiding such errors.
Effective June 10, DHS announced the suspension of
regulatory requirements so that Libyan F-1 students
who are experiencing severe economic hardship as a
direct result of the civil unrest in Libya since February
2011 may obtain employment authorization, work
additional hours, and reduce their course load while
continuing to maintain their F-1 status.
The launch of I-9 Central follows the introduction
of E-Verify Self Check, a service launched in March
by USCIS that allows workers and job-seekers in the
United States to check their own employment eligibility status online. Currently, Self-Check is a pilot
program operating only in Idaho, Colorado, Arizona,
Mississippi, Virginia, and Washington, D.C. In a related development, USCIS recently rolled out new
E-Verify website content in Spanish. Perhaps the most
important feature now in Spanish are instructions
for employees on how to resolve a tentative nonconfirmation (TNC). Occurring in about three percent
Finally, NSEERS Registration is Terminated
In late April, the Department of Homeland Security
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of all E-Verify inquiries, a TNC is issued when E-Verify
is unable to match employee information with information in federal databases. In such cases, employees
commonly need to visit a Social Security Administration office to resolve the discrepancy. With the new
content in Spanish, employers will be better prepared
to advise their employees on how to handle and resolve TNCs.
And, finally, the Department of State launched a redesigned website for the J-1 Exchange Visitor Program
(http://j1visa.state.gov) aimed at improving the application experience by providing a one-stop shop for
everything a J-1 applicant needs to know written in
plain, easy to understand English.
NOTICE: This newsletter is intended to provide you with general information about current U.S. immigration
issues. The information in this newsletter is not legal advice about your specific matter. If you have questions about your case, you should contact your immigration attorney.
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