Part XI: Correcting I-9

This is Part XI of our I-9 blog series, which explains how employers can best avoid audit by ICE.

Correcting Mistakes

When correcting errors on Form I-9, only the employee can correct Section 1; the employer can correct Sections 2 and 3. If the employer discovers an error in Section 1, then the employer should ask the employee to make the corrections. The best way to correct the form is to cross-out any inaccurate information. After entering the correct information, initial and date the correction.

Multiple Errors

If the employer needs to correct multiple errors, then the employer may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can be completed if major errors, such as entire sections being left blank, need to be corrected. A note should be included in the file detailing the reason the employer made changes to an existing Form I-9, or completed a new Form I-9. It is not in the employer’s best interest to conceal any changes made on the form–doing so may lead to increased liability under federal immigration law.

Make the method of correction uniform for all Form I-9 corrections. If the employer uses abbreviations, keep an index of abbreviations for use by the auditor.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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H1Bs may be over by mid-June, 2012!

If you are an employer with plans to employ a student on an H1B visa or employ someone from abroad or transfer an H1B employee from a US non-profit to your company, ACT FAST.

FY 2013 H-1B Cap Count
65000 Cap subject visas are issued every year. About 6800 visas are set aside for fashion models and citizens from Chile and Singapore under treaties with those countries. For the sake of simplicity, these visas have not been excluded from the H1B visa count below.

H1B visas receipted by USCIS so far:
Regular Cap Count             H-1bs Receipted             Difference from week to week
April 4                                     16,742                                0
April 9                                     17,400                                658
April 13                                    20,600                               3200
April 20                                    25,000                               4400
April 27                                    29,200                               4200
May 4                                      32,500                                3300
May 11                                    36,700                                4200
May 25                                    48,400                                11700

Forecast: All dates are approximate, and meant for planning purposes only.
If the Regular Cap Count is 65000, and the Balance of H-1bs remaining as of 5/4/2012 is 32500:

If 3500 visas are received per week, H-1b cap will be reached in 9 weeks, or July 13th.
If 5000 visas per week, the cap will be reached in 6.5 weeks, or June 27th.
If 6000 visas per week, the cap will be reached in 5.4 weeks, or June 15th.
If 7000 visas per week, the cap will be reached in 4.64 weeks, or June 10th.
If 8000 visas per week, the cap will be reached in 4 weeks, or June 6th.

There was an uptick in filings for the last 2 weeks in May, from the 4th to the 15th. Filings increased to pre-May levels. With this progression, the regular cap visas may be finished by mid-June, 2012.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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USCIS Centralizes Filing and Adjudication of I-601 and I-212

Today, US Citizenship and Immigration Services (USCIS) announced the centralized filing and adjudication of certain waivers for grounds of inadmissibility.

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a US Consular Officer will be able to mail requests to waive certain grounds of inadmissibility directly to a USCIS Lockbox facility. This change affects individuals abroad who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa — these individuals must send waiver applications.

Currently filed applications
Currently, applicants experience processing times from one-month to more than a year, depending on their filing location. USCIS’s new centralization will provide customers with faster and more efficient application processing and consistent adjudication. It is part of a broader agency effort to transition to domestic filing and adjudication; it does not reflect a change in policy or the standards by which the applications are adjudicated. Individuals filing waiver applications with a USCIS Lockbox will now be able to track the status of their case online.

The change affects filings for:
• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
• Form I-290B, Notice of Appeal or Motion, (if filed after a denial of a Form I-601 or Form I-212).

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an email or text message when USCIS receives their waiver request, may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

Filing a waiver at Ciudad Juarez
During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, will have the option to either mail their waiver applications to the USCIS Lockbox in the US, or file in-person at the USCIS office in Ciudad Juarez. Applications filed at CJ will be transferred to the US for adjudication.

If you filed before June 4th, 2012
USCIS is aware of the pending caseload for applicants in Ciudad Juarez, and is taking proactive steps to work through these cases. USCIS will significantly increase the number of officers assigned to adjudicate the residual cases filed before June 4, and those filed during the interim six-month transition period. USCIS has already begun to test this process and has transferred applications from Ciudad Juarez to other USCIS offices in the US.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on March 30, 2012.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

This blog is not intended as legal advice.

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USCIS Creates a New Online Filing System

Today U.S. Citizenship and Immigration Services (USCIS) launched the first phase of its Electronic Immigration System, known as USCIS ELIS. The system has been created to enable immigration benefit seekers and legal representatives to create an account to file for benefits online.

Who is eligible to file online?

In this first phase, individuals can establish a USCIS ELIS account and apply online to extend or change their non-immigrant status for certain visa types, or file Form I-539. Eligible individuals include foreign citizens who have traveled to the US temporarily to study, conduct business, receive medical treatment, or visit on vacation. You can use USCIS ELIS to extend your status if you are a B-1, B-2, F-1, M-1 or M-2; change your status if want to become a B-1, B-2, F-1, F-2, J-1, J-2, M-1 or M-2; or reinstate your status if you were a F-1 or M-1.

If you are a student on F-1 visa…

Students on F-1 visa may have a date-specific visa, which means there is a completion date and a start date to their course of study. These students are eligible to file and extend their status on USCIS ELIS.

If you are a student and admitted for duration of status, then you should contact your Designated School Official (DSO) to extend your student status. Your I-94 will give the end date as D/S, in which case you cannot change your status on USCIS ELIS.

If you are a student on an M-1 visa, you cannot change your status to an F-1 visa.

If you want to reinstate status, and you were an F-1 or M-1 visa holder, then both you and your spouse can reinstate status on USCIS ELIS, provided you are not subject to any immigration bars and have not overstayed your visa. In other words, you can only reinstate your status if you meet the F-1 criteria for eligibility status under the applicable sections of the Immigration and Nationality Act (INA).

Why use USCIS ELIS?

According to USCIS, this online account will allow you to interact with USCIS; receive email and text notifications; obtain information in real-time; submit electronic evidence; use a US credit card; be represented by an attorney or accredited representative; be assisted by an online setup assistant; and obtain real-time case status information.

To create an account:
Log onto www.uscis.gov/uscis-elis, enter your email, choose a password, answer personal identity questions, and obtain a secure pin number.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

This blog is not intended as legal advice.

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What to Expect at Your Non-Immigrant Visa Interview

See you in my next blog.

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

Copyright 2012. All rights reserved.

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US Citizen Gives Up Citizenship

Since 2011, almost 1,800 people have renounced their US citizenship or turned in their green cards. Has America lost its luster? Why would anyone give up a golden citizenship?

Many have left America because taxes are too high. According to the IRS, the number of citizens who have given up citizenship is almost eight times as many as the number in 2008, and more than the combined total of 2007, 2008 and 2009. The US is one of the few countries to impose taxes on citizens who earn income abroad. While the deadline for stateside taxes is April, the deadline for those living abroad is June. Though the deadline for US citizens abroad is later, there is much paperwork and many obstacles when filing taxes abroad. There is also no way to avoid filing, unless you renounce your citizenship.

As a US Citizen living abroad, you still have to report and file on all bank accounts. This includes international joint accounts and retirement funds. The IRS has high monetary penalties for those who do not report all their bank accounts, often as much as $10,000 or 50% of your undeclared accounts.

The Report of Foreign Bank and Financial Accounts and the Foreign Account Tax Compliance Act are two of the IRS’s filing requirements that affect US citizens abroad. The first law requires all Americans, and those abroad, to declare any overseas bank accounts that hold at least $10,000 using a supplementary file form. The second law requires foreign financial organizations to report information on US clients to the IRS. However the US has announced that they will allow foreign and domestic institutions to report information directly to the government, instead of going through the IRS. Failure to do this can be drastic for these institutions, and could result in 30% tax withholdings on US payments and property sales.

Foreign Earned Income Exclusion rules allow foreign income of at least $95,100 to be earned tax-free in the US. The IRS allows a few grace periods for expatriates to file back taxes without being subject to criminal charges; however, severe monetary penalties are quite possible.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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EB2 visas for China and India is Unavailable

Demand for EB2 visas from China and India
Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. Such demand is primarily based on cases which had originally been filed with U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status.

Upgrades from EB3 to EB2 visa, causes unavailability
The potential amount of such “upgrade” demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized. Therefore, it was necessary to make the China and India Employment Second preference category “Unavailable” in early April, and it will remain so for the remainder of FY-2012.

EB2 will be available in the Spring of 2013
Numbers will once again be available for China and India Employment Second preference cases beginning October 1, 2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 2010 date which had been reached in April 2012. Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before spring 2013.

File your I-485 before end of May, 2012
USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings during May, based on the originally announced May cut-off date.

See you in my next blog.

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

Copyright 2012. All rights reserved.

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What would you do? Examples for I-9 Employers

I recently attended a seminar presented by Ronald Lee, attorney from the Office of Special Counsel (OSC) in St. Louis, Missouri. I thought the examples provided were a useful tool to illustrate why an employer who employs only US citizens should be wary of civil rights violations under Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA).

Henry’s lettuce harvest is not as large as usual–he needs fewer workers this season. He needs to make a choice between Juan and Pedro. Juan is authorized to work and is a permanent resident, or a green card holder; Pedro is also work authorized, but is a refugee with a temporary work permit. Henry ultimately decides to keep Juan because he is a green card holder.

IRCA was the first Federal law that made it illegal to knowingly employ workers who were not authorized to work in the US. After the enactment of IRCA, employers were required to confirm the identity and work eligibility of all employees hired after November 1986, not just workers who appear foreign or those who speak with an accent.

You might think that since your company only hires US workers, your company does not violate I-9. Think again! You are the President of the company with a hiring policy of employing US citizens and not employing anyone who looks foreign. As the President, you and the company are probably engaging in national origin and citizenship status discrimination by requiring all hires to be US citizens.

An aggrieved party can file a complaint with OSC. The complaint form is available at OSC complaints in English, Spanish, Vietnamese and Chinese languages.

Employers can call anonymously to ask for guidance in their hiring practices 1-800-255-8155.

Going back to our example–has Henry committed citizenship status discrimination? Pedro is a protected person under the law. A protected person is a US citizen, a green card holder, permanent resident, refugee or asylee. Henry’s firing decision cannot be based on just ‘status’, nor can Henry only hire US citizens.

Why should employers care? OSC imposes huge fines on the employer, including training and reporting mandates imposed on the employer that last between 18 months and 3 years. These are costs an employer does not need in this, or any, economy.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

This blog is not intended as legal advice, only as illustrations.

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Civil rights under immigration–is there such a thing?

The Immigration Reform and Control Act of 1986 (IRCA) introduced employer sanctions for ‘knowingly’ hiring undocumented workers. IRCA also initiated the Form I-9 employment eligibility verification process, and established the Office of Special Counsel (OSC) to administer anti-discrimination provisions. Since the advent of OSC, immigrants and “authorized” workers have had to regularly prove their work status.

Given this legal backdrop, the question for employers is whether it is still possible to discriminate against job seekers. In other words, is preferential hiring based on citizenship status legal? It is only legal if the individual is not work-authorized; if it is required by law, regulation, executive order or government contract; or if the individual requires sponsorship.

On a rainy day, a farmer’s lettuce harvest was less abundant than usual. The farmer, Harry, needed fewer farm workers than last season. He had to make a decision between keeping Hector or Jose. He decided to keep Hector because he was a legal permanent resident, and decided against Jose because he was an asylee with a temporary work permit. Did Harry commit citizenship status discrimination?

Yes, Harry committed citizenship status discrimination because the asylee is a “protected person” under the Immigration and Nationality Act (INA). A protected individual is a US citizen, US national, permanent resident, temporary resident, refugee or asylee. Harry could not fire Jose based on the fact that he was an asylee with a temporary work permit.

OSC defines national origin discrimination as treating employees differently based on country of origin and/or ancestry, accent, or appearing to be from a certain country. So if Harry (employer) had at least 6 employees under Missouri law, or 4-14 employees under federal law, he could not discriminate against an applicant based on the fact that he looked foreign.

What are some examples of national origin discrimination? Preferring people from a certain country; only hiring “native English speakers”; and not hiring someone with an accent.

CEO Jane had heard of the penalties for hiring unauthorized workers. Wanting to keep her company intact, she issued an order telling HR not to hire anyone who looked like they had crossed the border illegally. Did she commit national origin discrimination? Yes, she did. All hirees are required to be verified the same way regardless of whether they are immigrants or members of a foreign community.

Section 1 of Form I-9 needs to be completed after the employee takes the job, and by the first paid work day. Aliens who are authorized to work are refugees and asylees, who work with no expiry date. These employees can write N/A if he/she has no expiry date. Employees are not obligated to present documents confirming status.

Section 2 of Form I-9 needs to be completed within 3 business days of the first paid day. Employees must submit documents from List A or List B + C.

Some common problems often arise when filling out Section 2. Employers frequently ask non-US citizen workers to provide List A documents but do not ask the same of US citizen workers, while allowing US citizen workers to submit any document they choose. Employers also request non-US citizen workers to present documents from Lists A, B and C, which is against I-9 regulations. The Handbook for Employers and USCIS‘s I-9 website commonly go unreviewed by employers. Because of this, employers often don’t accept certain documents, such as receipts, from non-US citizen workers.

Employers do not need to update or reverify US citizens, permanent resident cards holders (I-551), and List B documents.

Work-authorized individuals are protected from discrimination, while undocumented individuals are not. A few possible outcomes exist if an employer faces discrimination charges by OSC. Charges can be dismissed if OSC cannot find substantial cause; proof that the employer engaged in discrimination; or if OSC has no jurisdiction. If OSC decides that the employer is at fault, then OSC attempts to arrange a settlement; otherwise it will prosecute. If the settlement is rejected, then OSC reserves the right to file a complaint against the employer. The employee may also file his or her own complaint against the employer.

Part of the settlement that OSC may enter into with the employer could include requiring the employer to rehire the individual(s); reimbursement of back pay; providing injunctive relief to the complainant; requiring the employee to provide training to HR personnel; requiring monitoring of these activities; and reporting back to OSC about compliance with the steps required by settlement. The settlement could also mandate civil penalties.

Civil Penalties for citizenship status discrimination, national origin discrimination and retaliation can be high. Penalties for first-time offenders range from $375-$3,200; second-time offenders: $3,200-$6,500, and third-time offenders: $4,300-$16,000. Penalties for document abuse range from $110-$1,100.

A TNC, or a tentative non-confirmation is when there is a tentative non-match between the applicant’s name and Social Security Number (SSN). If a TNC is issued, the employee should be allowed to contact the federal agency and remedy the situation. An employer has eight federal days to contact Social Security, and Social Security can continue the matter for 120 days. In the meantime, the employer cannot terminate; suspend; delay the employee’s job; persuade the employee to quit; decrease the employee’s hours; deny pay; asking for further documentation; or delay employing the applicant. But if the TNC becomes a “final non-confirmation”, then the employer is within rights to fire the employee.

E-Verify cannot be used as an applicant self-check or prescreening by the employer.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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ICE Priorities for Apprehension, Detention and Removal of Aliens

On March 2, 2011, the US Department of Homeland Security (DHS) issued a memorandum to ICE employees, detailing ICE priorities for apprehension, detention and removal of aliens.

ICE’s first priority is apprehending those aliens who are a threat to national security, such as terrorists, spies, convicts and gang members. ICE has organized the types of offenders into three levels:

Level 1: aliens convicted of aggravated felonies, or two or more felonies punishable by more than one year each
Level 2: aliens convicted of misdemeanors, or three or more crimes each punishable by less than one year
Level 3: aliens convicted of crimes punishable by less than one year

ICE’s second priority is to deport any illegal entrants–those who have breached immigration checks at the border.

ICE’s third priority is to deport any aliens who have received a final order of removal but disregard it. This includes fugitive aliens, aliens who illegally return to the US after removal, and aliens who enter the US by fraud.

Undocumented immigrants who have no criminal histories and who have committed no crimes are the lowest priority for ICE, unless local law enforcement has an Arizona-style state immigration enforcement in place.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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