US-VISIT
  The United States Visitor and Immigration Status Indicator Technology (US-VISIT), is an automated system utilized in ports of entry across the United States. US-VISIT is designed to collect biometric information from most foreign nationals for the purpose of recording the arrival and departure of aliens and verify the authenticity of travel documents through the comparison of biometric indicators. When arriving at or departing from a U.S. port of entry, most foreign visitors must have their digital photograph taken and two index fingers scanned using an inkless, digital finger scanner. In order to confirm identity, the information collected is compared with biometric information previously captured by the U.S. Department of State at the time the visa was issued.

On July 27, 2006, the Department of Homeland Security announced that it is proposing the expansion of visitors enrolled in the US-VISIT program to several additional categories of non-citizens to include:
  • Lawful permanent residents
  Immigrant visa holders
  • Refugees/Asylees
  • Canadians visiting the U.S. for short business trips or tourism
  • Individuals paroled into the U.S.
  • Individuals applying for admission to Guam under the Guam Visa Waiver Program
  For more information about U.S. VISIT, please see http://www.dhs.gov/dhspublic/interapp/content_multi_image/content_multi_image_0006.xml
 
  New USCIS Policy for Fiancé Petitions
  On January 5, 2006, the President signed the International Marriage Broker Regulation Act (IMBRA) of 2005 into law. IMBRA is designed to protect foreign nationals engaged to U.S. citizens who met their fiancé through services provided by an international marriage broker. The law was passed as part of the reauthorization of the Violence Against Women Act, which is aimed at protecting individuals in abusive relationships.

As a result of the law, U.S. citizen petitioners will now have to disclose on the form I-129F whether they 1) met their fiancé through the use of an international broker, 2) ever filed additional petitions for alien fiancé, and 3) have ever been convicted of a violent crime. For additional information, please see http://www.uscis.gov/files/article/IMBRA072106.pdf.
 
  Reminder for Adjustment Applicants Traveling Abroad
  On October 4, 2006, the USCIS issued a memo reminding applicants for adjustment of status and other benefits to obtain advance parole before traveling abroad. To read this memo, please go to http://www.uscis.gov/files/pressrelease/TravelAdvisory101806.pdf".
 
  Background Checks
  Since 9/11, the Department of Homeland Security has increased the scope and number of background checks, in order to enhance national security. All applicants for an immigration benefit are required to undergo a background check. While most background checks are completed in a short period of time, a small percentage of cases may experience delays of one year or more. It is important to remember that the DHS will never grant an immigration benefit before the background check is complete.
 
  LPR Tips
  In order to maintain your lawful permanent resident status, be sure to:
  • File federal and state tax returns
  • Register for the selective service if you are a male between 18 and 26 years old
  • Evaluate the consequences and need to file for a reentry permit or other document before you leave the United States for an extended period of time
  • Contact us if you have any questions about maintaining your lawful permanent resident status
 
  Diversity Visa Lottery
  Fifty thousand permanent resident visas are available annually to qualified individuals from countries with low rates of immigration to the U.S.

Applications for DV-2008 will be accepted October 4, 2006 until noon on December 3, 2006. 2008 DV-Lottery instructions may be found at http://travel.state.gov/visa/immigrants/types/types_1318.html.
 
  Arrival/Departure Procedures
  Upon arrival into the U.S., persons seeking entry will be greeted by an immigration inspector who is an employee of the U.S. Customs and Border Protection. These inspectors may be a former employee of INS, Customs or the USDA, and will have varying degrees of familiarity with immigration law. The DHS inspector's threshold inquiry is to determine the individual's citizenship. For those who are not U.S. citizens, the CBP inspector conducts an inspection to ascertain whether (i) the person is seeking to enter for a lawful purpose and in accordance with the visa status that they have or request; and (ii) there are any grounds of inadmissibility. Paperwork is then completed, the passport stamped and the I-94 and customs declaration are appropriately marked. The individual is either welcomed to the U.S. or sent to secondary inspection for further processing, detention for a removal hearing or expedited removal.

DHS inspectors and consular officials now have at their fingertips access to an array of databases through the Interagency Border Inspection System (IBIS) and other agency lookout systems, such as the Federal Bureau of Investigations National Crime Information Center (NCIC). These databases enable extensive background checks, which reveal data ranging from previously refused admission into the U.S. to existing arrest warrants for nonsupport and prior juvenile arrests.
 
  Travel Tips
 
  • If you intend to travel outside the U.S., give us a call well in advance of your departure so we may review your file and assist you in identifying and preparing for any potential problems that may arise. Our advice may include precautions you should take on how to prevent the abandonment of pending requests for adjustment, change or extension of status; relinquishment of permanent resident status; invoking 3-year, 10-year or lifetime bars to admissibility into the U.S., or adverse affects on your eligibility for naturalization. In certain cases, we may suggest that you do not travel outside the United States at all.
  • All Visa Waiver Program travelers, regardless of age or type of passport used, must present machine-readable passports. For more information on the Visa Waiver Program and, http://travel.state.gov/visa/temp/without/without_1990.html
  • "Lookout systems" are in place at the overseas consulates and embassies, so be prepared to deal with anything that may come up in your background and to evaluate the potential immigration consequences. If you have previously been refused admission to the U.S. or have had immigration violations, we may suggest that you obtain a copy of your records through a Freedom of Information Act (FOIA) request. This will enable you to anticipate any issues that may arise, to the extent possible.
  • For many nonimmigrant visa applicants, a personal appearance interview is now required as a standard part of visa processing. For travelers coming to the U.S., the need for an interview will mean additional coordination with the embassy or consulate to schedule an interview appointment. We recommend that our clients build in ample time before their planned departure to the U.S. when seeking to obtain a visa. Links to U.S embassies and consulates worldwide may be found at http://travel.state.gov/visa/questions_embassy.html
  • Review your I-94 before leaving the port of entry to ensure that all information is correct and marked for the full period of your authorized stay. Send us a copy of your new I-94 upon reentering the U.S., so we may update your file and make sure that the I-94 is correct.
  • When an individual applies for a visa at a U.S. consulate or embassy, consular officers are increasingly looking at whether the visa applicant maintained lawful status during any prior stays in the U.S. and are requiring proof of continuous status. Be sure to take copies of the original approval notices (I-797) or cable notice of approval, together with evidence of all extensions. We recommend that you compile and document a complete record of your arrivals and departures to the U.S. and retain all previously used airline tickets or other evidence that you departed in a timely manner.
  Upon arrival into the U.S., persons seeking entry will be greeted by an immigration inspector who is an employee of the U.S. Customs and Border Protection. These inspectors may be a former employee of INS, Customs or the USDA, and will have varying degrees of familiarity with immigration law. The DHS inspector's threshold inquiry is to determine the individual's citizenship. For those who are not U.S. citizens, the CBP inspector conducts an inspection to ascertain whether (i) the person is seeking to enter for a lawful purpose and in accordance with the visa status that they have or request; and (ii) there are any grounds of inadmissibility. Paperwork is then completed, the passport stamped and the I-94 and customs declaration are appropriately marked. The individual is either welcomed to the U.S. or sent to secondary inspection for further processing, detention for a removal hearing or expedited removal.

DHS inspectors and consular officials now have at their fingertips access to an array of databases through the Interagency Border Inspection System (IBIS) and other agency lookout systems, such as the Federal Bureau of Investigations National Crime Information Center (NCIC). These databases enable extensive background checks, which reveal data ranging from previously refused admission into the U.S. to existing arrest warrants for nonsupport and prior juvenile arrests.
 
  USCIS Services Available Online
  Schedule An Appointment
If you need to visit your local USCIS office, including the St. Louis Sub Office, you must make an infopass appointment at http://infopass.uscis.gov/. InfoPass is an online appointment system, allowing USCIS customers and their representatives to schedule appointments with immigration officers at their local USCIS office. Effective November 1, 2004, it is mandatory to make appointments via InfoPass-walk in appointments will not be accepted.

To make an appointment, USCIS customers simply go to the InfoPass homepage. Customers provide brief information about where they live, the type of appointment needed and their contact information. Customers are given several choices of appointment dates and times, and once scheduled, receive an electronic appointment notice. It is necessary to print the notice and take it to the appointment along with a photo id. The notice will provide information about any additional information that should be taken to the appointment.

Look Up the Status of Your Case
Case Status Online allows customers to check the status of their case if it has been filed with one of the Service Centers, by entering their 13 digit receipt number found on the I-797 Notice of Action for applications and petitions filed with the USCIS. To review the status of your case online, please visit https://egov.immigration.gov/cris/jsps/caseStat.jsp

Review Current Processing Times
Processing Time Reports allow you to get an idea of how long it is taking to process various types of applications and benefits. To do this, click on the link below and select the applicable office or processing center, then click "Processing Dates" https://egov.immigration.gov/cris/jsps/ptimes.jsp

File an Application Online
E-filing is now available for nine frequently used forms which are: I-90, I-129, I-129S, I-131, I-140, I-539, I-765, I-821 and I-907. To learn more, please visit http://www.uscis.gov/portal/site/uscis/

Download Blank USCIS Forms and Instructions
Forms processed by the USCIS are available online at http://www.uscis.gov/portal/site/uscis/

Find a Civil Surgeon
The Civil Surgeon Locator makes it possible to identify USCIS approved civil surgeons by district location. To search for a civil surgeon in your area, please visit http://www.uscis.gov/portal/site/uscis/

Public Information Announcements
For a complete list of public information announcements, please visit http://www.uscis.gov/portal/site/uscis/
 
  Moving? Don't Forget to Notify the CIS and Us
  Immigration regulations require that you notify the CIS of your change of address within 10 days of your move. This obligation applies to all foreign nationals age 14 or older who remain in the U.S. for 30 days or more, including nonimmigrants and permanent residents. The reporting form is AR-11 and it can be printed from the CIS website at: http://www.uscis.gov/files/form/ar-11.pdf

If you are subject to special registration, the form is at: http://www.uscis.gov/files/form/ar-11sr.pdf

All sponsors of family based immigrant petitions are required to file a legally binding I-864 Affidavit of Support. All sponsors and co-sponsors of the I-864 are required to report their change of address within 30 days of the change so long as the sponsorship agreement is still in effect. The applicable form may be found at: http://www.uscis.gov/files/form/I-865.pdf

Special provisions apply to students, who must notify their Designated School Official (DSO) and CIS within ten (10) days of changes to address and/or name. The notice of changes may be provided to the DSO, who must then enter the information in The Student and Exchange Visitor Information System (SEVIS).

We recommend that our clients maintain a copy of the change of address form for their records and obtain delivery confirmation showing the date and address to which the form was mailed. If a petition for immigration benefits is pending, the appropriate office should also be notified of the change of address.

Finally, please remember to notify us of any change of address.
 
  Work Authorization
  Students and visitors are generally not authorized to work. Before you take a job, be sure to find out whether employment authorization is required, and available for your immigration status category. There are currently more than 40 immigration status categories eligible for employment authorization. For more information about employment authorization eligibility, please schedule a consultation with an attorney, or if you are a student, consult with your International Student Coordinator. You may also learn more at http://www.uscis.gov/portal/site/uscis/.
 
  Tidbits & Reminders
  Bars to Admissibility: It is vitally important to remain in status and comply with the terms of status. Failure to depart prior to the expiration of your status could result in the imposition of long-term bars on admissibility. If you are out of status for more than 6 months but less than 1 year, once you depart you will not be able to return to the U.S. for 3 years. If you are out of status in excess of 1 year, the bar upon departure is 10 years.

Increased Coordination: Immigration and Customs Enforcement and State and local enforcement officials have announced a pact to coordinate their efforts by providing and exchanging timely information. With new systems now in place, an initial analysis of an individual's immigration status will be in the hands of a police officer within minutes.

If we may assist you with your legal needs, please give us a call.
 
  PAULE, CAMAZINE & BLUMENTHAL, P.C.
165 N. MERAMEC AVE., 6TH FLOOR
ST. LOUIS, MO 63105
(314)727-2266 (Phone)
(314)727-2101 (Facsimile)
   
 

NEW RESPONSIBILITIES FOR MISSOURI EMPLOYERS TO ENFORCE IMMIGRATION LAWS

Despite the federal government’s increased efforts to enforce the country’s immigrations laws, many states have begun to feel that the federal government has failed in this regard, and the states are taking it upon themselves to enforce the federal laws in whatever ways they can. One way states are doing this is by requiring state employers, including political subdivisions, school districts, and employers who do business with the particular state, to participate in what is otherwise a voluntary system to determine the employment eligibility of employees. This system which many believe is flawed, transfers the burden of enforcing the immigration laws from the government to employers. For companies considered “Missouri employers,” that requirement goes into effect on January 1, 2009.

What is the new Missouri Law?

On July 8, 2008, Governor Matt Blunt signed into law a House Bill that, first, makes it illegal for any business entity in the state of Missouri to hire or employ an unauthorized alien, and, second, requires all public employers or private employers who seek an award of a contract or grant from the state or a subdivision to participate in the federal government’s E-Verify program. The law goes into effect January 1, 2009.

What is E-Verify?

E-Verify is a joint effort between the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”). It is administered by United States Citizenship and Immigration Services (“CIS”). It is an internet-based, free system, which allows an employer to confirm the employment eligibility of new hires. It takes the employer one step beyond completing the Form I-9 (even if an employer utilizes the E-Verify system, it still must complete and maintain Forms I-9 for each new hire, as otherwise required by law). After the employer and employee complete Form I-9, the employer enters certain information from the form into the E-Verify website, and receives a response, in most cases within seconds, confirming whether or not the employee is eligible to work. Just like the Form I-9, the E-Verify check must be completed no later than the end of third day after the individual is hired (but in no event may the check be completed prior to the individual being hired).

E-Verify works by comparing the social security number data and information in DHS’ immigration databases to the information from the Form I-9 entered by the employer. One relatively new feature of E-Verify is a photo screening tool. This tool allows employers to compare the photo on the employee’s permanent resident card or employment authorization document to DHS’ database. The purpose of the photo screening tool is to enable employers to detect identity theft.

After the information is submitted into the system, one of three results will be returned:
  1. “Employment Authorized” – the employee is authorized to work in the U.S.
  2. “SSA Tentative Non-Confirmation” – SSA database is showing a mismatch between the employee’s name and social security number
  3. “DHS Verification in Process” – DHS will provide a response within 24 hours of either “Employment Authorized” or “DHS Tentative Non-Confirmation”
If either the SSA or DHS “Tentative Non-Confirmation” response is received, the employer must provide the employee with information about how to challenge the mismatch. The employee then has eight days to contest and resolve the mismatch. During this period, the employee may continue to work. At the end of this eight day period, if the matter is not resolved, or if the employee does not contest the mismatch, the determination is considered final and the employee should be terminated.

If the response is an SSA non-confirmation, the employee should review the data that was entered to determine whether information was entered incorrectly. If so, the employer should re-enter the data. If there was not a data input error, and the employee wants to contest the determination, the employee must appear in person at a SSA field office. He or she has eight working days, from the date the employer provides notice of the mismatch, to resolve the matter with SSA. After this time period, the employer should re-query through E-Verify. It will then issue either a confirmation or a final non-confirmation. If a final non-confirmation is issued, the employee should be terminated.

If the response is a DHS non-confirmation, the employee should review the data that was entered. If the employee desires to contest the determination, he or she must call DHS within eight business days. If the non-confirmation was based upon a photo mismatch, the employer must print the photo from the CIS database and present it to the employee. The employer will scan and send electronically, or mail via express mail, a copy of the employee’s permanent resident card or employment authorization card, to DHS for its review. DHS will respond within ten business days as to whether or not the mismatch has been resolved. If it has not been resolved, the employee should be terminated.

The law requires that E-Verify be used in a non-discriminatory way and not be used as a means to pre-screen applicants, which is why an employment eligibility check may not be run prior to the individual being hired. If an employer participates in the program, it must run all new employees through the system. When an employer participates in the E-Verify program, it must post a notice to prospective employees, in an area where the notice is likely to be seen, that the company participates in the program. Along with this notice, the employer also must post an anti-discrimination notice issued by the Department of Justice’s Office of Special Counsel.

What are some of the Employer’s Obligations under E-Verify?

When an employer registers to use E-Verify, it must electronically accept a Memorandum of Understanding between the employer, DHS and SSA. This Memorandum imposes many obligations on the employer, some of which are:
  1. Display the required notices from DHS;
  2. Comply with Form I-9 requirements, with some additional record-keeping requirements;
  3. Notify DHS if the employer continues to employ an employee after a final non-confirmation determination is issued – the employer will then be liable for fines between $500 and $1,000 for each such employee;
  4. Agree to follow the anti-discrimination provisions;
  5. Continue to employ an employee until after a final non-determination is received
  6. Safeguard the information received from the employee and the E-Verify system; and
  7. Permit DHS and SSA to make periodic visits to the employer to review E-Verify records.
What are the Benefits of Participating in E-Verify?

If an employer participates in the E-Verify program, and receives confirmation through the system that an employee is authorized to work, then the employer is protected from liability and sanctions will not be imposed if the individual turns out not to be employment authorized. The system also is being advertised as a way to improve companies’ wage and tax reporting and as a way for companies to help protect U.S. workers.

What are the Risks of Participating in E-Verify?

If the employer receives a final non-confirmation from the system, and continues to employ the individual, there will be a rebuttable presumption that the employer knowingly employed someone not authorized to work. This may encourage the employer to fire an employee it would otherwise believe is authorized to work and that the E-Verify system had simply returned a false positive result. Additionally, in order to participate in the program, the employer must agree to allow DHS and SSA to visit their work site. The purpose of the visit would be for government officials to review employment records and interview the employees of the company who are designated to utilize the E-Verify system.

Once registered as an E-Verify user, the employer may terminate participation, but must provide 30 days written notice to the government before doing so.

What are some Criticisms of E-Verify?

Critics of the E-Verify system often cite the relatively large number of false positives (where the system returns a non-confirmation for an individual who is actually employment authorized) as support for saying the system is flawed. One of the largest categories of false positives is naturalized citizens who have not yet updated their information with SSA. According to CIS, an enhancement has been added to the system that will help resolve this problem, by including naturalization records in the system.

Additionally, the system is unable to detect identity theft, leading to a large number of false negative responses. The government believes that the addition of the photo tool to the system will correct the problem of identity theft, as an employer is now required to verify the photo identification presented by the employee against the employee’s photo identification in his or her immigration records.

If an employer participates in E-Verify, it must utilize the system for all employees, not just foreign-born employees, just like an employer is obligated to complete a Form I-9 for all employees. However, a report studying the accuracy of E-Verify found that foreign-born employees who are authorized to work were much more likely to receive a false positive response than U.S. born employees.

Critics of the system also fear that its use will lead to discriminatory hiring and working practices and the firing of foreign employees prior to a final determination of their employment eligibility.

To whom does the Missouri Law’s E-Verify Requirement Apply?

The prohibition on employing unauthorized aliens under RSMo § 285.530 applies to all business entities operating in the state of Missouri. However, those employers who are required by the law to participate in E-Verify are limited to those who (1) seek an award of a contract from the state; (2) seek a grant in excess of $5,000 from the state; (3) receive a state-administered or subsidized tax credit, tax abatement, or loan from the state; or (4) are public employers. What are the Specific Provisions of the new Missouri E-Verify law? Under the new law which goes into effect January 1, 2009, all public employers and all private employers who receive a contract or benefit from the state of Missouri or a subdivision, as described above, are required to participate in the federal government’s work authorization program (E-Verify) and verify the employment eligibility of every employee hired after the effective date. The new state prohibition on employers employing individuals not authorized to work in the U.S. applies to all Missouri employers, regardless of whether they participate in E-Verify. The law gives the attorney general the power of enforcement.

An enforcement action is initiated by a written complaint being filed with the attorney general by anyone, including other business entities (although there are penalties for making a frivolous complaint). After the attorney general receives a complaint, within 15 business days he must request identity information from the employer regarding the individuals who are alleged to be unlawfully employed. If the employer fails to provide such information within 15 days of receipt of the request, the employer’s business licenses, permits, and exemptions will be suspended.

After the attorney general receives the identity information from the employer, the information is submitted to the federal government for verification. If the federal government notifies the attorney general that the employee is not authorized to work, the following steps are taken:
  • If the employer participates in E-Verify, there is a rebuttable presumption that the employer did not knowingly employ the individual unlawfully.
  • The attorney general shall bring a civil action if he reasonably believes the employer knowingly employed the individual unlawfully.
  • If the court finds the employer did not knowingly violate the law, the employer shall be given 15 days to take corrective action, as described below. If the employer fails to take corrective action within 15 days, the employer’s business permits, licenses, and exemptions shall be suspended until such corrective action is taken.
  • If the court finds the employer knowingly violated the law, the employer’s business permits, licenses, and exemptions shall be suspended for 14 days. They shall be reinstated upon the employer taking corrective action after the 14 day period.
  • If an employer violates these provisions a second time, the employer’s business permits, licenses, and exemptions shall be suspended for a period of 1 year.
  • A third or subsequent violation shall result in the employer’s business permits, licenses, and exemptions being suspended permanently.
The corrective action an employer is required to take upon being notified by the attorney general that an employee is not authorized to work in the U.S. is as follows:
  • The employer terminates the individual’s employment, or upon receiving additional identity information from the employee, requests a secondary verification from the federal government;
  • A legal representative of the employer submits a sworn affidavit attesting that the violation has ended and describing the corrective action taken. The affidavit also must list the identifying and address information for the unauthorized individuals; and
  • The employer must enroll in E-Verify and provide the attorney general with documentation that it has enrolled in the program.
For an employer that has been awarded a state contract, grant, loan, or tax credit, upon the employer’s first violation of § 285.530, the prohibition on employing unauthorized individuals, the employer shall be deemed in breach of contract with the state and the state may terminate the contract or suspend or debar the employer from doing business with the state for a period of 3 years. Additionally, the state may withhold up to 25% of the total amount due the employer. § 285.535(9). Upon a subsequent violation, the employer may be permanently suspended or debarred. § 285.535(9).

Given the new state prohibition and the potential liabilities associated with the employment of unauthorized individuals and given the new requirements for E-Verify, it is more important than ever that employers understand their obligations and limit their exposure. We urge that you speak with an attorney so that your company hiring procedures and employee manuals may be reviewed.