U.S. Citizenship and Immigration Services (USCIS) is requiring customers to verify their identities at USCIS field offices to obtain   interviews or “to receive evidence of an immigration benefit.”  Customers must submit biometric data in the form of fingerprints and photographs at USCIS offices.

When customers arrive at a USCIS field office, they must clear security before being called to the counter.  Once they are at the counter, USCIS requires that customers electronically scan two fingerprints and take a picture to verify their identity.  After USCIS verifies the customers’ identity, they can attend their interviews or receive their documents.
Individuals who are going to a USCIS field office for InfoPass appointments or simply to accompanying a customer are not subject to the identity verification process.  Also, the new initiative does not change current USCIS practices, such as the requirement that applicants and petitioners who are requesting immigration or naturalization benefits provide biometric data and a government-issued document at USCIS’s Application Support Centers.

AUTHOR:  Rebecca Massiatte.

As of September 8, 2013, Iowa joins Mississippi, Florida and Idaho as participant states in the Records and Information from DMV’s for E-Verify (RIDE) program. 
 
The RIDE program allows the federal government’s E-Verify system to verify information from employees who submit a state driver’s license or state identification document in the course of the I-9 Employment Verification Process. Touted as a mechanism to fight identity fraud, RIDE seeks to boost the accuracy of the E-verify employment eligibility verification process. While RIDE does not incorporate photos from the individual state database, it does provide all information provided in connection with the issuance of the driver’s license and state identification document. 
 
A state-issued driver’s license or state identification document are two of the items from a list of choices that an employee can present to an employer as a “List B” document (to verify identity) in connection with  Form I-9 verification.  In 2011, E-Verify expanded its information sources to include driver’s licenses. 
 
RIDE allows employers to verify the information associated with a state issued driver’s license or identification card.  This can help prevent unauthorized persons from using a fraudulently obtained document to obtain a job.  Unfortunately, without the inclusion of photo identification, RIDE does not eliminate issues associated with identity theft. Additional states are expected to sign on to the RIDE Program.

AUTHOR:  Harry J. Joe.

Despite USCIS’s 251 prior approvals of L-1B Specialized Knowledge Visa Petitions filed by Fogo De Chao for gaucho chefs, a federal District Court in Washington, D.C., upheld the USCIS’s denial of such a petition for Rones Gasparetto  and found the agency’s interpretation of “specialized knowledge” was not arbitrary, capricious or unreasonable.  Fogo De Chao Churrascaria, LLC v. U.S. Department of Homeland Security, et al., No. 10-1024 (D.D.C. Aug. 9, 2013).
 
USCIS denied Fogo’s petition because Fogo did not provide sufficient evidence to establish that Gasparetto would be employed in a position requiring or involving specialized knowledge and that he possessed specialized knowledge. The decision went to USCIS’s Administrative Appeals Office for clarification of the application of the statute and regulation that defines specialized knowledge.
 
The AAO found that specialized knowledge could not be determined using a bright-line test, but that Congress created a standard requiring USCIS to make a factual determination on a case-by-case basis. The AAO also found there was insufficient evidence that the offered position required specialized knowledge according to the interpretive guidelines in the Memorandum of James A. Puleo, Exec. Assoc. Comm’r, INS, Interpretation of Specialized Knowledge (Mar. 9, 1994) and Memorandum of Fujie Ohata, Dir. Service Center Operations, USCIS, Interpretation of Specialized Knowledge for Chefs and Specialty Cooks Seeking L-1B Status,(Sept. 9, 2004). Finally, the AAO found the evidence did not establish Gasparetto possessed specialized knowledge, but that he had general cultural knowledge, values and culinary skills acquired as a result of cultural upbringing in Brazil. Moreover, the AAO noted Fogo had not provided evidence that Gasparetto had been employed as a Gaucho Chef at its restaurant in Brazil.
 
Fogo challenged USCIS’s interpretation of specialized knowledge. It argued that the Congressional definition of “specialized knowledge” as being “special knowledge of the company product and its application in international markets” or “advanced level of knowledge of processes and procedures of the company” was not clear. The federal District Court agreed, saying the definition was circular and inherently ambiguous, and could not have a plain meaning.  It rejected Fogo’s argument, however, that the legislative history supported a broadened interpretation of specialized knowledge.
 
As the statutory definition of specialized knowledge was ambiguous, the only remaining issue for the Court was whether the AAO’s interpretation of specialized knowledge was based on a permissible construction. It found the reliance on the Puleo and Ohata memoranda, legislative history and applicable regulations was reasonable and entitled to deference. 
 
Fogo’s remaining arguments that the agency’s actions violated provisions of the Administrative Procedure Act were rejected.
 
This case underscores the difficulty that petitioning employers have in seeking to judicially challenge an administrative denial of an L-1B Specialized Knowledge visa petition. In a similar case, the Fifth Circuit Court of Appeals affirmed the denial of L-1B petitions for certain Brazilian chefs trained to cook in the gaucho manner in Boi Na Braza Atlanta LLC v. Upchurch, 194 F. App’x 248 (5th Cir. 2006). It affirmed the finding that the denials were based on proper consideration of the evidence, legislative history, the agency’s interpretive memoranda and regulations. 
 
L-1B Specialized Knowledge Visa Petitions are particularly complex and face numerous evidentiary hurdles described in the Puleo Memorandum, which, barring Congressional action, will continue to govern the adjudication of L-1B petitions.

AUTHOR:  Melina Villalobos.

The Department of State has taken another step toward the creation of a secure and efficient online immigrant and visa application experience.  The DOS on September 3, 2013, began using an online immigrant visa application, replacing the old paper DS-230 and DS-3032 forms.  
 
Applicants can apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration) and choose their agent online using Form DS-261 (Choice of Address and Agent).  Applicants can access both forms online at ceac.state.gov.
 
The National Visa Center (NVC) may instruct applicants who previously submitted Form DS-230 to submit Form DS-260.  Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.
 
Jackson Lewis attorneys are available to assist employers with any questions pertaining to the new automated process and other workplace requirements.

Whether to pre-populate Section 1 of the Form I-9 has become a hot topic because of the rising use of electronic I-9 software. Section 1, Employee Information and Verification, contains basic information about the employer, such as name, address, and date of birth. I-9 software makes it easy for the employer to complete Section 1 from existing information already in the system. But is it a good idea?

The Immigration and Nationality Act (“INA”) requires an employer to complete a Form I-9 for every employee hired after November 6, 1986.  The regulations require the employee to complete Section 1.   If the employee is unable to complete Section 1, another individual can assist him or her and complete the Preparer/Translator section of the form.  The regulations require the Preparer/Translator to read the form to the employee and assist him or her in completing the form.  Electronic I-9 software can prepopulate Section 1 for the employee who then can review and sign the I-9.  The problem is that the employee is not physically completing Section 1 nor is the form being read to him or her by a Preparer/Translator.
 Immigration Customs Enforcement (“ICE”) and U.S. Citizenship and Immigration Service (“USCIS”) have provided inconsistent statements.  Earlier this year, ICE stated at an American Immigration Lawyers Association meeting that it deemed pre-populating Section 1 a violation of I-9 regulations.  However, more recently, both ICE and USCIS stated that they have no official position regarding pre-population and advised employers to follow the regulations (which are silent on the issue).  An official guidance or policy from either agency has yet to appear.
The Office of Special Counsel is the latest to weigh in.  The OSC enforces the anti-discrimination provisions of the I-9 regulations.  OSC Deputy Special Counsel Seema Nandra wrote that the discourages the pre-populating practice.  First, the practice may pre-populate with inaccurate or outdated information, which could lead to mismatches in E-Verify or payroll records.  Second, pre-populating may input an immigration or citizenship status that is no longer valid, causing the employer to reject valid documentation of work authorization. Finally, employees who are illiterate or not an English speaker will not get the chance to have the form translated or read to them, and the employee will be signing the documentation without understanding the full nature of the form.   All of this could be lead to discrimination in the I-9 process.  The OSC letter can be found here.
Until clear guidance is provided by ICE and USCIS on the issue, it is a best practice to have all employees complete Section 1 themselves, unless they are unable due to illiteracy, language barrier or disability.  In these instances the regulatory process for a Preparer/Translator should be used.
Immigration and Customs Enforcement, the principal investigative arm of the Department of Homeland Security, is initiating  hundreds of worksite investigations  by serving Notices of Inspection and Administrative Subpoenas on employers this week—many requesting that the requested documents be delivered Tuesday after the Labor Day.  HR managers and in-house counsel may find less time to holiday.
As a key element of DHS’s internal immigration enforcement effort, ICE is going after employers that recruit, hire, and continue to employ unauthorized foreign nationals.  ICE believes its increased investigative activity will   impel employers to adopt conservative standard operating procedures that foster compliance with immigration-related employment laws.  In testimony to the House Judiciary Committee, outgoing Homeland Security Secretary Janet Napolitano indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.
All employers are at risk.  ICE reviews employers’ Forms I-9 in order to evaluate historical administrative compliance with regulatory requirements, and in some cases, reaches a conclusion that criminal charges are required for intentional or systematic violations.  This can be based on elevated rates of employment of unauthorized foreign nationals.   Employers also need to remain vigilant to assure compliance with these (sometimes) onerous employment verification compliance requirements.  In addition, employers with multi-state locations may have to adhere to supplemental state verification compliance requirements.
Diligence, adequate resources and counsel are needed minimize exposure.

AUTHOR:  Harry J. Joe.

The United States Court of Appeals for the Ninth Circuit in Seattle has held the employer’s duty to verify that employees are legally authorized to work in the United States includes the legal obligation to fully complete the I-9 Form. The Court also held that any omitted information cannot be cured by the existence of attached copies of the employee’s work authorization and identification documents. Moreover, the Court found that Immigration and Customs Enforcement lawfully could deem such omissions to be substantive violations under longstanding administrative policy. Ketchikan Drywall Services, Inc. v. Immigration and Customs Enforcement, et al., No. 11-73105 (9th Cir. Aug. 6, 2013).
 
Washington-based Ketchikan petitioned for review of a summary decision of the Administrative Law Judge, Office of the Chief Administrative Hearing Officer, in favor of ICE.  Ketchikan contended that it had fully complied with the employment verification requirements with regard to most of the alleged violations because it had made copies of the employee’s work authorization and identification documents and attached them to the employee’s I-9, and that it was simply a matter of looking at the information on the copies and transferring them to Sections 1 and 2 of the I-9. Moreover, Ketchikan contended that such omissions in the I-9s should be deemed only “technical or procedural failures” to which it was entitled notice of and the usual 10-day period to correct such deficiencies. 
 
The Court did not agree with Ketchikan’s interpretation of 8 U.S.C 1324a(b)(4), which allows the employer to copy and retain any document presented by the employee as being an “alternative” to the statutory and regulatory requirements to fully conduct the employment verification process and to fully complete the I-9 form for each employee. The Court said the statute means that copying and retaining documents was neither necessary nor sufficient for compliance.  Likewise, the Court agreed with ICE that its long-standing administrative policies on the types of I-9 omissions and deficiencies that would constitute “substantive violations” rather than “technical or procedural errors” wer entitled to deference. 
 
Ketchikan also challenged the ALJ’s decision not to mitigate the penalty for “good faith.” The Court held that the decision of the ALJ on mitigation or enhancement of penalties would not be reversed in the absence of an abuse of discretion, arbitrariness or capriciousness. Though the ALJ found that Ketchikan’s record of compliance had been “dismal” and that it had previously received a Warning Notice from ICE, it did not find “bad faith” as an independent basis for enhancement of the penalty. However, Ketchikan’s mere assertion that it thought it was in compliance was insufficient to establish good faith. 
 
The Ninth Circuit’s decision provides a clear warning to employers that there are no defenses for anything short of full and complete compliance with the employment verification requirements for new hires and re-hires. This includes fully and properly completing the I-9 Form. 
 

Reports have surfaced that some U.S. consulates are denying H-1B visa applications on the ground that the certified Labor Condition Application referenced the incorrect wage level for the position. This can mean significant staffing issues for employers expecting workers on H-1B visas.

In about a month, beneficiaries of FY 2014 H-1B petitions will be able to enter the United States on H-1B visas for the first time. Nonimmigrant workers can enter the country up to 10 days prior to the H-1B start date. The worker must apply for an H-1B visa at a U.S. Consulate, typically in his or her home country, by completing the requisite DS-160 form online, making an appointment, and attending the appointment with the H-1B Petition Approval Notice and petition support documents. With an approved H-1B Petition, this process is usually smooth and the worker receives the H-1B visa within a few days of the interview.
Part of the H-1B Petition is a Labor Condition Application (“LCA”) certified by the Department of Labor. On the LCA, the employer is required to indicate a certain “wage level” for the position. This is typically based on the minimum requirements for the position – not the beneficiary’s qualifications. Recently, some consulates have denied H-1B visa applications on the grounds that the certified LCA referenced the incorrect wage level for the position. This sort of assessment is typically beyond the scope of the consular officer’s jurisdiction. If an employer has H-1B workers who are denied a visa for this reason, the employer should contact an immigration attorney to take steps to present this issue to the Department of State Visa Office for resolution so the worker can obtain his or her H-1B visa and timely enter the United States.

As previously reported, over the past several weeks, a number of U.S. consulates were temporarily closed due to security concerns creating processing delays for U.S. visa applicants.  Consular posts in 20 cities, including all three posts processing visas in Saudi Arabia, were closed from August 5 through August 10 in conjunction with a worldwide travel alert posted by the State Department.  In addition, the US Embassy in Egypt announced that regular consular processing services were  being suspended beginning the afternoon of August 14 at least through August 15 due to the ongoing unrest in that country.  Separately, a number of consulates located in predominantly Muslim countries will be closed for all or some period over the coming weeks for the Eid holiday marking the end of Ramadan.  Petitioners and visa applicants in affected countries are advised to check with the local consulate regarding potential appointment and processing delays and to should anticipate possible delays in visa issuance.

Author:  Helen Pihlstrom.

The U.S. Citizenship and Immigration Service has provided additional guidance on the implementation of the Supreme Court’s United States v. Windsor ruling, which invalidated part of the Defense of Marriage Act. In a Frequently Asked Questions, last updated on August 2, 2013, USCIS addresses in more detail how it will handle a number of immigration benefits sought by married same-sex couples.
 
Expounding on DHS Secretary Janet Napolitano’s July 1st directive, USCIS formally confirms that individuals may seek all applicable immigration benefits for same-sex spouses, including immigrant visa applications, fiancé/fiancée petitions, and other “benefits for which you believe you are eligible,” without waiting for further official guidance or forms. In addition, the USCIS will re-open and consider anew cases that were denied based on DOMA; affected applicants will not be required to pay new filing fees.
 
The FAQs also address a lingering question of those residing in U.S. states that do not recognize same-sex marriages. Consistent with current policy for marriage-based benefits, USCIS will consider the law of the place where the marriage was celebrated in determining whether the marriage is legally valid for immigration purposes. This also includes marriages performed in Canada and other marriage-equality countries.
 
Other benefits addressed in the FAQs include those for dependents of employment-based individuals, foreign nationals seeking to qualify as a spouse accompanying or following to join a family-sponsored immigrant, inadmissibility waivers, and dependents of those granted refugee status or asylum. In all of these cases, same-sex marriages will be treated in the same manner as opposite-sex marriages. 
 
In addition, after Secretary of State John Kerry advised on August 2nd that U.S. consulates would begin processing visa applications on behalf of same-sex spouses, Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) has provided guidance on the issuance of I-20 Forms for international students. According to the August 5th guidance, Designated School Officials at U.S. universities may issue I-20 Forms for same-sex dependent spouses of F-1 or M-1 visa-holder students. Consistent with existing SEVP policy, schools officials are to verify the validity of same-sex marriages to determine if the marriage is valid in the place of celebration.