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Archive for the ‘Immigration & I-9 Services’ Category

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].

Employers Beware – Social Security No-Match Letters are Making a Comeback

Posted on: December 26th, 2018

By: Layli Eskandari Deal

Like a bad penny, the Social Security no-match letters will once again turn up and wreak havoc on employers. It is anticipated that employers will once again start receiving these no-match letters, officially called the “Employer Correction Request Notice,” in the Spring of 2019. The SSA will start notifying employers if the W-2 (Wage and Tax Statements) information contains a social security number and a name that do not match.

These no-match letters have been around for a while, but SSA has not issued them consistently. The idea behind these letters is to notify employers when there is a mismatch between the name and the social security number provided and the SSA records. This can happen for a variety of reasons such as simple human error in imputing the information (such as misspelled name or transposed numbers). Of course, this can also result from an employee providing a false social security number or using another individual’s social security number.

On its face, it seems logical that the SSA would want to correct any mismatched information in an individual’s account. However, U.S. Immigration and Customs Enforcement (ICE) has indicated that there is a duty by the employer to investigate the reasons for the discrepancy. ICE has warned that these letters, if uninvestigated, can lead to a finding of “constructive knowledge” of unauthorized employment during an audit.

Unfortunately, employers are stuck in the middle. SSA states that the no-match letters are not addressing unlawful employment but, on the other hand, ICE is indicating that they can use these letters to show constructive knowledge.

So, what should employers do if they receive a no-match letter?

  1. If a letter is received, don’t assume the worst. There may be a simple reason for the mismatch.  Remember, these letters are not providing any information regarding the employee’s employment authorization or immigration status.
  2. Communicate with the employee.  Let the employee know a letter was received and ask then to verify their information.  Give your employee a reasonable period of time to resolve the discrepancy with the SSA. SSA has provided a sample letter to give to employees.
  3. Follow up with your employee and review any documents that they may provide to you. Submit any employer or employee corrections to the SSA.

This year, ICE’s Homeland Security Investigations launched 6,848 worksite investigations. The number of employer I-9 audits has gone up from 1,360 to 5,891 (comparing fiscal year 2017 to 2018). As ICE ramps up their enforcement efforts in 2019, it is necessary for employers to create a plan to address no-match letters with their employees, as well as, making sure that their I-9s are compliant.

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

EB1 Success Story

Posted on: December 20th, 2018

By: Kenneth Levine

The FMG Immigration Group was retained in June 2018 to prepare an EB1 “Alien of Extraordinary Ability” petition on behalf of Woman International Chess Master Mariam Danelia. Mariam, who hails from the country of Georgia, was residing in the U.S. pursuant to F-1 Optional Practical Training after having earned a Master of Science degree in Accounting from the University of Texas at Dallas.

Mariam happens to be one of the finest female chess players ever produced by the country of Georgia. She is currently the 20th ranked female chess player in Georgia and is overall ranked in the 99th percentile of female chess players worldwide. While attending UT at Dallas, Mariam was a key member of the school’s powerhouse chess team. The UT at Dallas chess team is a perennial favorite to qualify for the “final four” tournament of collegiate chess, known as the “President’s Cup.”

The attached article discusses Mariam’s remarkable chess talents and recounts her appearance at the Denver Chess Club, where she competed against 25 other chess players simultaneously:

Although Mariam’s petition included substantial evidence of her eligibility for the EB1 category, USCIS nonetheless issued a rather lengthy and detailed Request for Evidence. Our office refined the evidence to address the issues raised by USCIS and submitted the response. An approval notice soon followed.

Mariam was positively thrilled to learn that she will be receiving her green card under our country’s most elite and prestigious immigration category. Indeed, U.S. media typically refers to the EB1 category as the ‘Einstein” green card. Congratulations Mariam!

Mariam emailed us the below comments and has authorized us to print them here:

“I had a great experience working with Kenneth Levine. He took my EB1 case and managed to get it approved, when no other immigration lawyer believed the case was approvable. During our first conversation, Kenneth told me that my case would require a lot of work and we would receive a RFE from the USCIS, but he was confident that the case would ultimately be approved. This is exactly what happened. We received a RFE and after he submitted the response, the case was approved. The approval of the case speaks for itself and shows that Kenneth is an outstanding attorney, but I want to emphasize that he does an amazing job at making the whole process smooth for his clients. He promptly responds to emails and patiently answers questions. He truly cares about his clients and does his best to assist them. I would not be able to stay in the United States without his help. I highly recommend him to everyone who requires immigration legal assistance.”

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].

Is “Birthright Citizenship” Subject To Revocation By A Presidential Executive Order?

Posted on: October 30th, 2018

By: Ken Levine

citizenship

During an interview by Axios on October 29, 2018, President Trump declared that he was about to sign an executive order to abolish birthright citizenship in the United States. While the President insisted that birthright citizenship, a concept enshrined in the 14th Amendment of the U.S. Constitution, could be revoked via executive order, it is an understatement to say that the constitutionality of such an order would be dubious.

The 14th Amendment of the U.S. Constitution provides, in part, that all individuals born in the United States, and subject to the jurisdiction of the laws of this country, are automatically U.S. citizens. Any amendment to the U.S. Constitution requires a 2/3rd majority in both houses of Congress or a constitutional convention called for by two-thirds of the State legislatures.

Furthermore, the issue of birthright citizenship has already been comprehensively addressed in the 1898 U.S. Supreme Court case of U.S. vs. Wong Kim Ark, 169 U.S. 649. The issue at hand in the case was whether a child born in the United States to Chinese citizens, who were temporarily residing in the U.S., was automatically a U.S. citizen by operation of law. In a 6 to 2 decision the Supreme Court determined that the 14th amendment, which was passed after the U.S. Civil War, guaranteed U.S. citizenship to all individuals born in the United States, no matter the citizenry of the child’s parents. The decision reiterated that the 14th amendment does however exclude birthright citizenship for the children of foreign diplomatic officers, which is the sole exception.

Eminent constitutional scholars around the U.S. have already weighed in on this issue and have spiritedly validated that the U.S. Constitution not only guarantees birthright citizenship, but that a unilateral Presidential Executive Order cannot amend the constitution. It is unclear at this time whether President Trump will actually move forward with this executive order.

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

USCIS Reverses Course – STEM OPT Students May Now Work At 3rd Party Client Sites

Posted on: September 18th, 2018

By: Ken Levine

On August 17th U.S. Citizenship and Immigration Services (USCIS) posted an announcement on their website to publicize the agency’s decision to once again allow STEM OPT F-1 students to engage in training programs at a third-party client worksite.  This update supersedes the Agency’s policy change in April 2018 which disallowed STEM OPT students from being placed at 3rd party client sites.

This new guidance essentially restored an employer’s ability to place OPT students in a science, technology, mathematics or engineering (STEM) field at a 3rd party client site, so long as all applicable training obligations are met, and a bona fide employer/employee relationship is maintained for the full duration of the assignment.

This USCIS policy reversal was welcome news for the many U.S. employers who had historically trained their OPT personnel by placing them at 3rd party work sites.  However, it is extremely important that employers be vigilant in ensuring that the training is in full compliance with the I-983 training program. Companies that sponsor their OPT employees for an H-1B visa should expect that USCIS will closely scrutinize the OPT training program details.

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