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Posts Tagged ‘DHS’

No E-Verify During The U.S. Government Shutdown – What Is An Employer To Do?

Posted on: January 4th, 2019

By: Kenneth Levine

The current government shutdown has ensnared the E-Verify system, which is used by numerous U.S. employers to verify the employment eligibility of new hires. While many operations of DHS and USCIS are maintained through user fees, and therefore unaffected by the shutdown, this does not apply to the E-Verify system. Functions on the E-Verify website which provide valuable information to U.S. employers, such as webinars, myE-Verify accounts, Form I-9 and E-Verify telephone support, are currently unavailable. Only basic E-Verify guidance remains accessible.

Employers that utilize E-Verify should know that the current unavailability of the system does not mean that employee hiring decisions must be delayed. DHS has posted a link to the E-Verify website which provides guidance on how U.S. employer’s should proceed with hiring during the pendency of the government shutdown. In particular, the notice addresses the “three day rule” as follows:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve “tentative nonconfirmations” (TNCs) will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • USCIS and DHS will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Despite the lack of accessibility to the E-Verify system, USCIS and DHS have made it crystal clear that employers engaged in hiring during the government shutdown must continue to comply with the I-9 employment verification process. Per the E-Verify website notice:

“The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.”

FMG Immigration Attorneys will continue to monitor E-Verify developments and provide updates as needed.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Foreign Students and Exchange Visitors Beware!

Posted on: May 15th, 2018

By: Layli Eskandari Deal

On May 10, 2018, USCIS published a Policy Memorandum to provide guidance on how the agency will be calculating unlawful presence for F-1, J-1, and M-1 nonimmigrant visa holders and their dependents.

Generally, foreign students and exchange visitors are admitted to the United States for “Duration of Status”.  This means that the student or the exchange visitor is admitted to the United States for as long as the individual is still doing the activity for which the visa was issued.  For nonimmigrant (F-1 and M-1) this is generally for the duration of time that they are full time students plus the time they are in their period of authorized practical training.  The length of time generally depends on their course of study.  For Exchange Visitors (J-1) this is the period of time for their program to be completed.  Previously, unless USCIS or an Immigration Judge affirmatively terminated the status, F-1, M-1 and J-1 visa holders and their dependents would not accrue unlawful presence in the United States.

USCIS is now providing the following guidance, which is a significant change in how USCIS has treated “Duration of Status” in the past:

Individuals in F, J, and M status who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence on the earliest of any of the following:

  • The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:

  • The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after the I-94 expires; or
  • The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Accruing unlawful presence can prevent an individual from being able obtain a change of status to another visa category while in the United States or obtaining a new visa at a US Embassy or Consulate.  It can also prevent an individual from obtaining US Residency (green card).  It is very important that international students and exchange visitors understand this new guidance and confer with their immigration attorney regarding any questions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Update on Temporary Protected Status (TPS) For Citizens of Nicaragua, Honduras, & El Salvador

Posted on: November 9th, 2017

By Kenneth S. Levine

On 11/6/2017 the Department of Homeland Security (DHS) issued an announcement on the Temporary Protected Status (TPS) program for citizens of Nicaragua and Honduras. Currently, there are approximately 60,000 Nicaraguans and Hondurans who reside and work in the U.S. under the TPS designation.

DHS announced that the TPS program for Nicaragua has been extended to 1/5/2019, at which time the TPS designation will be terminated. USCIS has advised Nicaraguans on TPS that between now and 1/5/2019 they must either seek a change of status to another visa category, or prepare to depart the United States.

TPS for Honduras has been extended for 6 months.  However, according to DHS’s announcement, “it is possible that the TPS designation for Honduras will be terminated at the end of the six-month automatic extension with an appropriate delay.”  As of today, TPS for Hondurans has been extended to July 5, 2018. DHS’s final decision regarding any additional extensions of Honduran TPS is expected by early 2018 once a new Secretary of Homeland Security has been confirmed by the Senate.

A decision by DHS on whether to extend or terminate the TPS program for citizens of El Salvador is expected by January 8, 2018.

While the general public may perceive the USCIS advisory to “seek a change of status to a different visa category” to be an easily attainable option, the reality is that TPS recipients must still satisfy the strict legal criteria for any requested visa type. For the vast majority of TPS recipients, that will prove difficult to achieve. Therefore, in assessing whether a TPS recipient qualifies for a different visa category, the analysis should necessarily include whether any options exist to pursue permanent residency.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

You’ve Got Mail: E-mail Notifications Effective in E-Verify

Posted on: July 8th, 2013

By: Kelly Eisenlohr-Moul

Among the more significant changes in the 2013 Form I-9 is an optional field for the employee’s e-mail address.
If the employee supplies an electronic address, whether work or personal, the employer must use the address provided when initiating an E-Verify case.
US Immigrations and Customs Enforcement (USCIS) recently announced the intended use for this electronic address:  electronically mailing tentative non-confirmations (TNC) to employees.
USCIS states that it will only send an e-mail to employees if:

• The employee provided a valid e-mail address in Section 1 of the Form I-9
• The employer is enrolled in E-Verify
• The employee received a TNC
TNCs occur when there is a mismatch between the data provided on the Form I-9 and the data contained in the E-Verify databases (supplied by the Department of Homeland Security (DHS) and the Social Security Administration (SSA)).  This feature may assist in notifying employees of their TNC and need to follow up with the DHS or the SSA.

Notably, employers will not be copied on these e-mail messages, and this new feature does not alleviate the employer’s obligation to provide employees with a notice of the TNC.
Finally, employees have eight (8) federal working days to contest the TNC.  They must be allowed to work as normal during this time period, or the employer could be subject to a charge of discrimination from the Office of Special Counsel.