Department of Homeland Security (DHS) Update:

• REMINDER: Beginning Jan. 31, 2008, adult U.S. and Canadian citizens entering the U.S. by land or sea should be prepared to present either a passport, or a government-issued photo ID (such as a driver’s license) plus proof of citizenship (such as a birth certificate or naturalization certificate).  Children ages 18 and younger will only be required to present proof of citizenship. 

• The United States Citizenship and Immigration Services (USCIS) has announced that the congressionally-mandated H-2B visa cap for the second half of Fiscal Year (FY) 2008 has been reached and is rejecting new H-2B petitions received after Jan. 2, 2008.  H‑2B is a popular work visa category aimed to satisfy worker needs of various industries, and, most notably, used by hospitality and construction businesses.  New H-2B visas should become available again on Oct. 1, 2008.

• With the new H-1B petition filing season upon us and with the anticipated repeat of the filing rush of April 2007, it is now time to plan your H-1B worker needs.  All new H-1B proceedings should be filed with the USCIS by April 1, 2008 and employers should discuss filing strategies and timelines with immigration counsel as soon as possible.

• The new Form I-9 Employment Eligibility Verification is now in effect and is obligatory for use by all U.S. employers.  Employers may no longer use pre-June 5, 2007 editions of Form I-9 when completing the Form for new hires.

• The USCIS is heavily promoting its E-Verify program intended to assist employers with regard to employment eligibility verification of new employees.  While E-Verify remains voluntary on the federal level, several states have undertaken steps towards either mandating the program’s use (i.e., Arizona) or strongly encouraging it (e.g., Oklahoma and Tennessee).  Employers interested in E-Verify should consult their counsel and carefully review and consider any and all obligations incurred upon subscription to E‑Verify.  To obtain information on E-Verify, you may call the USCIS’s National Customer Service Center at (888) 464-4218. 

• More and more states are joining federal efforts to curtail illegal immigration to the U.S.  In addition to the recently reported Arizona Statute that remains one of the most aggressive immigration enforcement efforts in the nation, several other states have passed legislation aimed at illegal immigrants.  Companies doing business in Oklahoma and Tennessee should be aware of the following developments:  Employers in Tennessee face suspension of their state business licenses if found to have knowingly employed an unauthorized worker.  And, beginning July 1, 2008, Oklahoma employers with government contracts will be required to use a “status verification system,” such as the federal government’s E-Verify program, to confirm employment authorization of all new employees.

• The U.S. Department of State (DOS) released its February Visa Bulletin, making visa numbers “unavailable” for Indian citizens in the second employment-based visa category, effective immediately.  As such, affected foreign workers will not be able to complete their Green Card proceedings until new visa numbers become available, which may not be until the government’s new fiscal year begins on Oct. 1, 2008.

• The USCIS continues its suspension of the expedited processing (Premium Processing) program for R-1 petitions for religious workers.  The suspension has been extended until July 8, 2008.  Additionally, the USCIS is gathering comments on the proposed R-1 rule, and the final rule is expected in the near future.  The final rule will, likely, change a number of R-1 processing criteria as well as filing procedures.

• STATUS OF THE NO-MATCH LEGISLATION.  The U.S. District Court in San Francisco has given the DHS until March 28, 2008 to revise its regulations pertaining to U.S. employers’ responsibilities upon receipt of “no match” letters advising them that employees’ names do not match the social security numbers found in the Social Security Administration databases.  While the government remains enjoined from sending the “no match” letters at this time, we highly recommend that employers should streamline their employment eligibility verification practices and procedures and ensure their readiness to implement the “no match” regulation if and when it becomes effective the coming Spring.