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The United States Citizenship and Immigration Services (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements. The Memo clarifies what constitutes a valid employer-employee relationship in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. For an analysis of the Memo and its implications for employers, continue reading Littler's ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? by Jorge R. Lopez, Shin-I Lowe and Neil Grindstaff.

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Last Thursday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) released a framework for comprehensive immigration reform. Although a bill has yet to be introduced, the Senators outlined their “four pillar” reform strategy in a Washington Post opinion column. This plan would include “requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.” For more information on this development, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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On Wednesday, the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice’s Civil Rights Division (CRT) announced that the two agencies have collaborated on a series of initiatives to “strengthen the efficiency and accuracy of the E-Verify system.” The first component of this effort is a Memorandum of Agreement (MOA) (pdf) that establishes the relationship and process for case referrals between the two agencies with respect to allegations of discrimination arising out of employer use of E-Verify, and information regarding the misuse, abuse, or fraudulent use of E-Verify. The MOA details the agencies’ respective responsibilities, authority, and points of contact, and outlines how future exchange and disclosure of information should occur. According to a fact sheet, on the MOA, the CRT’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) will receive referrals of potential discrimination that come to USCIS; in turn, USCIS will receive from OSC referrals of potential employer misuse of E-Verify that does not fall within DOJ’s enforcement arena. Moreover, according to the fact sheet, the MOA provides USCIS with a more efficient process to assist the DOJ in pending E-Verify-related investigations.

In addition to the MOA, the agencies have created two training videos that explain E-Verify procedures, policies, employee rights and employer responsibilities in English and Spanish. These videos

“are designed to help employers understand their responsibilities under E-Verify and to inform employees of their rights when working for employers enrolled in E-Verify.”

Finally, the agencies have established an E-Verify employee hotline for employee inquiries, issues and complaints.

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The U.S. State Department has unveiled its new online nonimmigrant visa application process, reports Nextgov.com. As previously discussed, Form DS-160 combines three application forms into a single online platform. Although petitioners previously could complete applications online, they were required to bring hard copies of the completed applications to visa interviews. Now, only a confirmation sheet with a bar code is required since consular officers can retrieve the application through the department’s database.

Currently, 88 consulates and embassies have implemented Form DS-160. The State Department hopes that all overseas consular offices will use the system by the end of April 2010. However, because of the time and expense necessary to develop foreign language versions of DS-160, it is uncertain whether this goal will be met.

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The Wall Street Journal reports that a mandatory biometric identification card for U.S. citizens and legal residents could be included in a comprehensive immigration reform bill being spearheaded by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC). The card would contain standard identifying information, but would also contain a biometric identifier, e.g., fingerprints. Schumer has previously proposed such a card to replace E-Verify, the federal electronic employment verification system.

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U.S. Immigration and Customs Enforcement (ICE) announced that it has served Notices of Inspection (NOIs) on 180 businesses in Louisiana, Mississippi, Alabama, Arkansas, and Tennessee. ICE will review these businesses’ hiring records to determine their compliance with federal employment eligibility verification laws. As previously discussed, in 2009 ICE developed a new enforcement strategy that includes significantly increasing the number of forensic audits. In December 2009, 1,000 businesses faced an audit. In July 2009, ICE issued more NOIs in one day—652—than it did in all of 2008.

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According to the Wall Street Journal, an independent report commissioned by the Department of Homeland Security (DHS) found that E-Verify, the federal electronic employment verification system, may be failing to detect 54% of unauthorized workers processed. According to the 338-page report (pdf), E-Verify experienced difficulty confirming that workers’ identities were their own. The purported reason: identity theft.

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In its revised Travel Alert on Chile, the State Department is advising U.S. citizens to avoid tourism and non-essential travel to Chile due to the February 27 earthquake’s aftermath. It has further advised Americans in Chile to apprise friends or family of their well-being via telephone or Internet.

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Senators John Kerry (D-MA) and Richard Lugar (R-IN) have introduced the StartUp Visa Act of 2010 (S. 3029), which would create a new visa category (EB-6) for foreign entrepreneurs. Foreign entrepreneurs would qualify for a two-year visa upon demonstrating that a qualified U.S. investor will dedicate at least $250,000 to his or her startup venture. Moreover, permanent resident status would be available to EB-6 visa holders after two years upon demonstration that the startup has:

• created five full-time jobs in the United States (excluding employment of the entrepreneur’s spouse or children); and
• secured $1 million in additional investment capital; or
• generated $1 million in revenue.

The bill has been referred to the Senate Judiciary Committee.
 

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