USCIS Issues Final Rule on Form I-9 Documents

Posted on April 25, 2011 by Immigration/Global Migration Group

On April 15, 2011, United States Citizenship and Immigration Services (USCIS) published a final rule (pdf), effective May 16, 2011, governing the types of acceptable identity and employment authorization documents and receipts that an employee may present to an employer when completing Form I-9. The final rule adopts without change an interim rule (pdf) that was published on December 17, 2008, and has been in effect since April 3, 2009.

As noted in the Questions and Answers posted to the USCIS website, the final rule:

  • prohibits employers from accepting expired documents; and
  • makes the following changes to the List of Acceptable Documents (“List A”):
    • Eliminates: identity and employment authorization documentation Forms I-688, I-688A, and I-688B (Temporary Resident Card and outdated employment authorization cards).
    • Adds: foreign passports containing temporary I-551 printed notations on certain machine-readable immigrant visas.
    • Adds as evidence of identity and employment authorization: valid passports for citizens of the Federated States of Micronesia (FSM) and the Republic of Marshall Islands (RMI); Forms I-94 or I-94A indicating nonimmigrant admission under the Compact of Free Association between the United States and FSM or RMI.

Because the final rule makes no changes to the interim rule, USCIS will not be issuing a new Form I-9. Employers may continue to use the current Form I-9 (Rev. 08/07/2009) or the prior version (Rev. 02/02/2009).
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USCIS to Review Policy on H-1B Cap Exemptions for Nonprofits Affiliated with Higher Education Institutions

Posted on March 21, 2011 by Immigration/Global Migration Group

By Jorge Lopez

Over the past few months, United States Citizenship and Immigration Services (USCIS) has been applying a more restrictive definition of “affiliation” for health care institutions. An affiliation with a university exempts hospitals from having to wait until October to apply for H visas. This exemption is especially advantageous in the health care setting, since many hospital residency and fellowship programs start in June and July, considerably earlier than the October application date.

USCIS’s narrow interpretation of “affiliation” has resulted in visa applications—for extensions as well as for new visas—being denied to health care professionals working in hospitals affiliated with universities, which has in turn impacted graduate medical education programs and the allied health care positions of many health care institutions. The net result has been the reduction in staffing and interruption of graduate medical education programs, among others. Accordingly, on March 16, 2011, USCIS announced interim procedures that will be in effect while the agency reviews its policy on H-1B exemptions for entities affiliated with or related to an institution of higher education. 

The interim procedures are effective immediately and will be followed until further guidance is issued. Under the interim procedures, USCIS will give deference to determinations made since June 6, 2006, which state that the nonprofit entity satisfies the affiliated with / related to criteria and therefore is exempt from the H-1B statutory cap. However, deference will not be given if any significant change in circumstances has occurred since the determination or if there was “clear error” in the prior determination. Also, the nonprofit entity bears the burden of demonstrating it received prior approval of exemption status by providing the following:

  • a copy of the previously-approved cap-exempt petition (Form I-129 and relevant attachments);
  • a copy of the previously-issued USCIS approval notice (Form I-797) issued since June 6, 2006;
  • documentation previously submitted in support of the claimed cap exemption; and
  • a statement attesting that the organization was approved as cap-exempt since June 6, 2006.

In its announcement of the interim procedures, USCIS stressed that it will engage the public in any forthcoming guidance.

Photo credit: Cr-Management GmbH & Co. KG
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State Department Issues Final Rule on Exchange Visitor Program Trainees and Interns

Posted on August 20, 2010 by Immigration/Global Migration Group

U.S. Department of State SealTwo years after introducing an interim final rule concerning trainees and interns in Exchange Visitor Programs (EVPs), the U.S. State Department published a final rule in the Federal Register. The final rule essentially confirms its interim predecessor which, among other things:

  • eliminated the distinction between “non-specialty occupations” and “specialty occupations;”
  • established a new internship program; and
  • modified the selection criteria for participation in a training program.

However, the final rule, which becomes effective September 10, 2010, makes the following changes:

  • permits telephone interviews to screen potential participants’ eligibility;
  • removes the requirement that sponsors secure a Dun & Bradstreet report profiling companies with whom a participant will be placed; 
  • provides clarification regarding the verification of workers’ compensation coverage for participants and use of an Employer Identification Number to ascertain that a third-party host organization providing training is a viable entity; and
  • clarifies that trainees and interns may repeat training and internship programs under certain conditions.

EVPs allow foreign nationals with significant experience in certain occupational fields to receive further training in the United States. They are designed to enhance academic and occupational skills and expertise by having participants engage in structured work-based training and internship programs, and to improve participants’ knowledge of American techniques, methodologies, and technology. EVPs also are intended to expose visitors to U.S. culture and society, and Americans to foreign cultures and skills.
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Implementation of New I-9 Delayed

Posted on February 5, 2009 by Immigration/Global Migration Group

On December 17, 2008, the U.S. Department of Homeland Security (DHS) published in the Federal Register an interim final rule revising the Form I-9 and List of Acceptable Documents attached thereto. A correction was subsequently published on January 16, 2009, contributing to the confusion already surrounding the new form. DHS later posted the new I-9 at www.uscis.gov indicating that it must be used by all employers effective February 2, 2009. Consequently, numerous interest groups proposed that the implementation of the I-9 be delayed. Late in the afternoon on January 30, 2009, that request was answered – DHS filed a last minute notice announcing that implementation of the form would be postponed until April 3, 2009. Notice of the delay appears in the February 3, 2009 edition of the Federal Register.

The interim rule alters both the I-9 form and the List of Acceptable Documents by changing some of the language on the form itself and adding to and deleting from the List of Acceptable Documents. In Section 1, the employee portion of the Form I-9, DHS has amended the language to include a noncitizen national. A noncitizen national includes someone born in American Samoa, certain citizens of the Trust territories of the Pacific Islands, and some children of noncitizen nationals born outside the United States.
 

The remainder of the changes imposed by the interim rule deal with Section 2, the employer portion of the Form I-9, and the List of Acceptable Documents. Under the law’s current incarnation, the U.S. passport and all List B documents are acceptable even if they are expired. A document containing no expiration date, such as a Social Security card, is considered “unexpired” and is therefore acceptable for I-9 purposes.

Under the interim rule, DHS has changed the List of Acceptable Documents to include the new U.S. Passport Card in List A. Two other documents have also been added to List A, and they will verify both identity and work authorization:

1. A foreign passport notation on a machine-readable immigrant visa that is pre-printed with a temporary I-551 notation (confirmation of legal permanent residence status); and

2. A passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with a valid Form I-94 demonstrating valid status pursuant to the Compact of Free Association with the United States.

A number of documents have been removed from List A because DHS no longer issues them and any such documents previously issued have now expired. These include:

1. Form I-688, Temporary Resident Card;

2. Form I-688A, Employment Authorization Card; and

3. Form I-688B, Employment Authorization Card.

Finally, the interim rule deletes all references to the former U.S. Department of Justice Immigration and Naturalization Service (“INS”) and replaces such references with “DHS” wherever “INS” appears in the relevant laws and documents. 

This entry was authored by Lisa Cottle, an associate in Littler's Cleveland office.
 
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