Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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USCIS Implements Customer Identity Verification at Field Offices

Starting September 9, 2013, if you are appearing for an interview or applying, or receiving evidence of an immigration benefit, you will be fingerprinted and photographed. This process is in addition to the biometrics check you may have already attended prior to the interview at the USCIS office.

USCIS is calling this new verification tool Customer Identity Verification (CIV) in its domestic field offices. The repeat biometrics could be taken at the info-pass windows of the USCIS office.

How It Works

After a customer is cleared through security, a USCIS officer will electronically scan two fingerprints and photograph the customer in order to verify their identity. CIV is only done for those customers who have an interview or are being issued evidence of an immigration benefit.

How It Helps

CIV is supposed to confirm identity and thereby reduce identity switching or theft. USCIS claims that the process will aid USCIS in verifying a customer’s identity, and improve and streamline the immigration system, while also fighting identity fraud.

However, none of my clients whom I accompanied to their interview were asked by USICS to be fingerprinted. That does not prevent USCIS from implementing the scheme more broadly in the future.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Information Sharing Between Canada and the US

On December 13, 2012, US Ambassador to Canada, David Jacobson, and the Canadian Minister of Citizenship, Immigration and Multiculturalism Jason Kenney signed a US-Canada Visa and Immigration Information-Sharing Agreement.

The agreement stipulates that the US and Canada are allowed to share information that concerns third country nationals who are applicants for visa or permit to visit the US and Canada. Such sharing will assist in safeguarding and protecting the security of Canadians and Americans, while promoting travel and business. Additionally, information sharing will cultivate improved decision-making by the two countries: visa applicants will be better screened and risks will be identified more quickly. It will also aid both countries in identifying terrorists, violent criminals and those who are a danger to the respective countries. Officers working in both immigration and refugee protection sectors will be given ample information about all applicants.

The US and Canada have the ability to send an automated request for data to each other, in the even that a third country national applies to either country for a visa or asylum. A request will normally have specific information; biographic information would include name and date of birth, whereas biometric sharing would include an anonymous fingerprint. If any information corresponds with a former applicant, then immigration information — such as if a person already applied for a visa and was refused, or was deported from the country — can be shared between the two countries.

Biographic immigration information sharing will begin in 2013, while biometric sharing will begin in 2014.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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