DHS announced that it is extending Temporary Protected Status (TPS) for nationals of Somalia who already hold TPS. TPS allows qualifying individuals to remain and work lawfully in the United States until conditions in their home countries improve. The new extension allows qualifying individuals from Somalia to reapply for TPS until December 31, 2013. There is no automatic extension of previously-issued work authorization because there is sufficient time for applicants to apply for and receive new work authorization documents. The new work authorization documents will be valid until September 17, 2015. The DHS press release can be found here.
Employers enrolled in the E-Verify program were unable to access the E-Verify system during the recent government shutdown. While employers were still required to complete paper I-9s for new hires, they were not able to enter the data into the E-Verify system within the required three days. USCIS has issued guidance for E-Verify participants, which can be found HERE. The guidance addresses handling tentative non-confirmations received between September 17, 2013, and September 30, 2013; SSA final non-confirmations; and how to comply with the three-day rule (which must be completed by November 5, 2013).
The Social Security Administration (SSA) updated its web page to provide information about how the government shutdown affects SSA’s services. While local SSA offices will provide some limited services, the offices will not be able to issue new or replacement Social Security cards. This may adversely affect new visa holders arriving in the United States to begin their temporary employment with US employers. A list of the limited services SSA will provide can be found HERE.
While the US Citizenship and Immigration Services (USCIS) remains operating during the government shutdown, E-Verify services are not available. This means that companies cannot enroll in E-Verify, and those already enrolled cannot verify employment eligibility, make changes to an account, or run reports. The USCIS has provided limited guidance on their site, which you can read here.
Employers enrolled in E-Verify must continue to complete Form I-9 for new hires during the shutdown, even though the three-day rule for verifying employment eligibility online is suspended. When the shutdown is over, employers will be able to verify the employment eligibility of those hired during the shutdown.
As Congress failed to reach an agreement to avert the unthinkable, the US Government shut down at midnight. This will affect some immigration-related government agencies:
- US Citizenship and Immigration Services (USCIS),which processes immigrant and nonimmigrant visa petitions, will continue operating. Petitions already on file will continue to be processed, and new petitions will continue to be accepted. eVerify will not be operating during the shutdown.
- US Customs and Border Protection, which conducts inspections of those arriving by land, air, and sea, and enforces immigration laws, will continue operating.
- Department of Labor, which processes Labor Condition Applications (LCAs) for H-1B petitions and E-3 applications, prevailing wage determinations for H-2B and PERM labor certification cases, and H-2B and PERM labor certification applications, will not continue operating during the shutdown. The review of applications already on file will be suspended, and new applications will not be accepted until the shutdown is over. This will delay the filing of H-1B, H-2B, prevailing wage requests, and PERM applications. The USCIS has not yet addressed whether employers will be able to file H-1B petitions without LCAs at this time. It is unlikely that E-3 applicants at US embassies and consulates will be able to obtain E-3 visas at this time without certified LCAs.
- Department of State, which oversees US embassies and consulates, will continue to operate. Embassies and consulates will continue to accept and process visa applications. However, as the shutdown continues, it is possible for some of the visa processing services to cease if the fees collected will not support operations. In addition, while US passport agencies will still accept and process applications, those offices located in Federal Buildings forced to close may not be operational.
The U.S. Department of State (“DOS”) has now issued FAQs for handling of same-sex spouses in both the immigrant (green card) and nonimmigrant (temporary visa) categories, following the Supreme Court’s finding, in Windsor v. United States, that Section 3 of the Defense of Marriage Act is unconstitutional. Effective immediately, DOS will treat same-sex spouses and their children identically to opposite-sex spouses and their children. This means that same-sex spouses whose marriages, whether foreign or domestic, are legally recognized where they occurred are now eligible for immigrant visas, K-1 fiance visas, nonimmigrant dependent visas, and all other visa benefits (including spousal employment authorization, where applicable) that opposite-sex spouses currently enjoy. It also means that the children of same-sex spouses will now be treated as “stepchildren,” with corresponding visa benefits.
In light of the Supreme Court’s decision in United States v. Windsor, which invalidated the Defense of Marriage Act, the USCIS has issued some helpful FAQs pertaining to family-based immigrant visa petitions. The FAQs can be viewed here. The State Department has not yet issued guidance on nonimmigrant visa applications by same-sex spouses. We will update this blog when that guidance is issued.
On July 1, DOL announced that its Office of Foreign Labor Certification (OFLC) is making publicly available redacted copies of all certified H-1B, H-1B1 and E-3 Labor Condition Applications (LCAs) and permanent labor certifications (PERMs) dating back to April 15, 2009, through the iCert “Labor Certification Registry” (LCR). These certified documents can be searched by case number, case type, state, job location, employer name, posting range, or industry code. The “LCR Document Availability Schedule” gives specific availability timeframes for each type of document.
Following the recent Supreme Court ruling holding the Defense of Marriage Act (DOMA) unconstitutional, the Department of Homeland Security (DHS) has issued guidance on the filing of same-sex marriage family-based immigrant visa petitions. The guidance instructs the US Citizenship and Immigration Services (USCIS) to “review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The DHS FAQs can be found here.
The State Department has yet to issue guidance on the adjudication of nonimmigrant visa applications by same-sex spouses.
Last month, the Homeland Security Investigation Worksite Enforcement Unit of Immigration & Customs Enforcement (ICE) announced a significant change in policy regarding use of electronic I-9 software.
Many such systems integrate data from other HR databases in order to prepopulate information on Section 1 of Form I-9, the section employees fill out during the employment eligibility verification process.
In an April 11, 2013, meeting with the Verification and Documentation Liaison Committee of the American Immigration Lawyers Association (AILA), ICE has now confirmed its position that this practice is impermissible, even if the preparer/translator section of Form I-9 is completed, and even though the employee provided the prepopulated information in the first place. ICE also confirmed that the pre-population prohibition applies to both existing and future I-9s.