US IMMIGRATION NEWS UPDATE - NOVEMBER 2007 HEADLINES

On September 27, 2007, the US Citizenship and Immigration Services (USCIS) announced the new 100 questions and answers that comprise the civics component of the new naturalization (citizenship) test. The USCIS will administer this new test to citizenship applicants beginning in October 2008.

Earlier this year, more than 6,000 citizenship applicants volunteered to take a pilot version of the test at 10 USCIS sites across the country during a four-month period. The 100 new civics items on the new naturalization test were selected after USCIS, a panel of history and government scholars, and English as a Second Language (ESL) teachers conducted a thorough review of the responses to the 142 items on the pilot test.

“We are very proud of this new test, and the open manner that we worked with our stakeholders throughout this entire process,” said USCIS Director Emilio Gonzalez. “Together, we developed a test that will encourage citizenship applicants to learn and identify with the basic civic values that unite us as Americans.”

The revised naturalization test will help strengthen assimilation efforts by emphasizing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. It will also promote patriotism among prospective citizens.

Following the pilot, USCIS refined the questions and answers, dropping several and adjusting others to increase clarity, narrowing the list to the new 100 questions. The range of acceptable answers to questions will increase so that applicants may learn more about a topic and select from a wider range of responses.

For instance, one of the new questions with a range of correct answers is: “What is one right or freedom from the First Amendment?” The applicant may respond with a variety of possible answers such as speech, religion, assembly, press, and petition the government.

The USCIS conducted the pilot during actual citizenship interviews in 10 districts across the country: Albany, NY; Boston, MA; Charleston, SC; Denver, CO; El Paso, TX; Kansas City, MO; Miami, FL; San Antonio, TX; Tucson, AZ; and Yakima, WA. Volunteers who participated in this pilot test achieved a 92.4 percent overall pass rate on the first try. The pass rates by test component were: civics, 93.7 percent; reading, 99.8 percent; and writing, 99 percent.

Following the pilot, USCIS and an expert technical advisory group affiliated with Teachers of English to Speakers of Other Languages (TESOL) reviewed the responses and re-piloted several re-phrased questions at 64 civics and citizenship classroom sites across the country. This secondary review was primarily focused on groups of individuals possessing Low-Beginning to High-Beginning levels of English comprehension to ensure that the average citizenship applicant was able to understand the question and answer items.

Strengthening the Employment Eligibility Document Review Process for the Nation’s Employers

• E-Verify (formerly known as the Basic Pilot/Employment Eligibility Verification Program) is an Internet-based system operated by the US Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows participating employers to electronically verify the employment eligibility of their newly hired employees. The US Citizenship and Immigration Services (USCIS), a division of DHS, administers the program.

• E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers. The program provides participating employers an automated Internet-based resource to verify the employment eligibility of newly hired employees. Employment eligibility verification queries authorization checks on all newly hired employees, including US citizens and non-US citizens, can be run against SSA and DHS databases. Through this process, E-Verify assists employers in maintaining a legal workforce and protects jobs for authorized U.S. workers.

• USCIS began testing a photo screening tool enhancement to EEV and formally launched it on September, 17, 2007. The tool allows a participating employer to check the photos on Employment Authorization Documents (EAD) or Permanent Resident Cards (green card) against images stored in USCIS databases. The goal of the photo tool is to help employers determine whether the document presented reasonably relates to the individual and contains a valid photo. The former program did not include this identity fraud component.

• More than 23,000 employers are currently using the E-Verify program to verify that their new hires are authorized to work in the United States. There is no charge to participate. The President’s FY08 budget request includes $30 million to expand and improve E-Verify.

The US Citizenship and Immigration Services (USCIS) has experienced significant delays in issuing receipt notices for immigration applications due to the dramatic increase in applications in recent months. Below are common questions and answers addressing the receipt notice delays.

Q: Will this affect my ability to travel?

A: Possibly. If you leave the country prior to the completion of the receipting process and do not have the appropriate travel documents, you may have difficulty returning to the United States.

Q: What if I need advance parole?

A: The USCIS anticipates completing the receipting of the I-131 documents by the end of October 2007. Due to the heavy volume of cases, the USCIS encouraging customers to wait until the end of October before inquiring about their cases. If special circumstances exist and advance parole is needed quickly, you can make an InfoPass appointment to visit your local USCIS office or call the National Customer Service Center (NCSC) at 1-800-375-5283. When you visit the local USCIS office, be prepared to explain the need for urgent travel, provide the US Postal Service tracking number associated with the original application filed, and the date the application was received at the Service Center where you filed.

Q. Will my application be rejected if my check expires?

A: No. When USCIS receives notice that your check has expired, they will notify you and suspend processing on your case. You will be given an opportunity to send a new check at the original filing rate and filing date. The USCIS will contact you if your check has been returned to us because it is beyond the expiration date.

Q: What do I do if the information on my receipt is incorrect?

A: The information you provided on your application is entered into the USCIS system; however, sometimes an error occurs. If you find that the USCIS misspelled your name or made any other error, you should call the National Customer Service Center at 1-800-375-5283 to request a correction. A USCIS representative will take the information needed to correct the error(s).

Q: I have received my receipt notice, but when I check my case online it does not appear. How do I get my case added to the system, so I can check on the progress of my case?

A: The USCIS has had an unprecedented number of applications filed in the last few months. The USCIS' efforts to enter these applications into their systems have caused a delay in the transfer of information from their case control system to the Case Status Online system. The USCIS is seeing delays of up to three to four weeks between receipting of your application and its status being available online. They are reviewing solutions to resolve the situation as soon as possible.

Q: If I filed before July 30th, 2007 and there is a problem with the check I used to pay my application fees, will I have to pay the new higher fees when I reapply?

A: If the USCIS is notified that your check for an application fee has been returned due to insufficient funds, your case will be placed in suspense. You will be notified by mail and asked to submit a new payment along with a $30 administrative fee. If you do so within 14 days, the USCIS will honor the original filing date and processing of your case will continue.

Q: How do I change my address while I am waiting for my receipt notice?

A: The two easiest ways to notify the USCIS that you have changed your address are to use the Change of Address Online web page or to call our National Customer Service Center (1-800-375-5283). For the Change of Address Online web page, you will need to know your receipt number. If you paid your application fee by check, your receipt number will usually be printed on the back of the check when it is cashed by USCIS.

Q: If USCIS has not cashed my check, how do I change my address?

A: If the USCIS has not cashed your check or you do not have access to your canceled check, please call the National Customer Service Center at 1-800-375-5283. The USCIS representative will initiate action to change your address in our system. However, it may take as long as 90 days to change your address if your case has not yet been receipted into our system.

The US Department of Homeland Security (DHS) issued new guidance for employers on how to avoid being charged with employing unauthorized foreign workers when employers receive "No-Match Letters" from the Social Security Administration (SSA) or notification from the DHS. Specifically, the regulation is called "Safe Harbor Procedure for Employers Who Receive a No-Match Letter”. This new rule went into effect on September 14, 2007.

The new regulation broadens the definition of employer’s “constructive knowledge” of an employee’s immigration status to include the employer's failure to take reasonable steps to address the following situations:

1) An employee’s request for the employer’s sponsorship of the employee for a labor certification or visa petition;

2) Receipt of a no-match letter from the SSA; and

3) Receipt of a notice from DHS (usually after an I-9 audit) that the employee’s employment authorization documents presented in connection with the I-9 form do not math DHS records.

If the employers follow exactly the procedures of the “safe harbor” protocol under the new regulation, they have immunity from being charged with constructive knowledge of employee’s illegal immigration status based on receiving the government notice. Employers who fail to follow the protocol will lose this “safe harbor” protection in the event of a civil or criminal investigation.

The “safe harbor” protocol:

Within 30 Days of Receipt of the Government Notification:

The employer must check records and figure out if the inconsistency was a clerical error. If yes, they must correct the error with SSA and verify that the corrections of the name and social security number now match those on SSA’s records. Keeping a copy of this verification is highly advised. A new I-9 may be completed or the original may be updated, however a new I-9 verification should not be performed.

Once the records are checked, if the employer figures out that the SSA no-match letter is due to an error in the employer’s records, the employer must immediately have the employee confirm that the name and social security number on record are correct. If it is determined that the information is incorrect, then the employer must make corrections, inform the SSA of these correction and verify a match on the corrected information. A record should be made from this action. If it is determined that the information is correct, the employer should immediately advise the employee of the date the no-match letter was received and have the employee resolve this inconsistency with the SSA no later than 90 days after the date it was received. It is not the employer’s obligation to advise the employee on the approach they should take for resolving the matter with SSA.

Notice of Discrepancy from US Department of Homeland Security (DHS):

The employer should contact the local DHS office and follow the instructions stated in the written notice, in order to answer and resolve any question raised by DHS regarding documents pertaining to an employee’s immigration status or employment authorization.

Within 93 days of Receipt of Government Notification:

If the inconsistency cannot be resolved with either SSA or DHS after 90 days of the receipt of the government notification, the employer is obligated to re-verify the worker’s eligibility as an employee. This can be done by completing a new I-9 form. The same procedures are to be used as the first I-9 was completed at the time of hire, with several exceptions:

1. Section one (completed by employer) and section two (completed by employee) must be completed within 93 days of receiving notice.

2. To establish employment authorization or identity, the employer cannot accept any documents (referenced in the DHS notification) or any document that contains social security number (that is the subject of the SSA no-match letter).

3. A document that includes a photograph must be submitted by the employee to establish identity and employment authorization.

4. The new I-9 form should be preserved with the original I-9 form(s).

At this point, if the employee’s work eligibility cannot be verified, the employer must make a decision of whether to terminate the employee or risk facing consequences of being penalized for the continuation of employment of an unauthorized alien. However, the employer should not terminate an employee until the process is complete, unless the employer obtains actual knowledge such as the employees own admission to being unauthorized alien.