Immigration Update
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Your Trusted Immigration News Source July 2008, Vol. 1, Issue 6
GLG NEWS
»  Please join us in congratulating Jerry Grzeca on his election to a three-year term as a Director for the American Immigration Lawyers Association's (AILA) national Board of Governors. Attorney Grzeca has held a seat on the Board since June 2007, and looks forward to serving AILA as a Director for the next three years.

»  GLG employees enjoyed a Brewer Game on July 8. And what a game it was! CC Sabathia made his debut as the starting pitcher. The Brewers went on to beat the Colorado Rockies 7-3. Photo »
PRESENTATION
» August 7, 2008 - Wisconsin Bar Association  Webcast, Ensuring Compliance with Immigration Laws.  Open to non-WisBar members.  Click here to register.

» September 18, 2008 - Wisconsin Bar Association Webcast, Worksite Enforcement and Its Consequences.  Open to non-Wisbar members.  Click here to register.
QUOTABLES
The Great Immigration Panic: "Someday, the country will recognize the true cost of its war on illegal immigration. We don't mean dollars, though those are being squandered by the billions. The true cost is to the national identity: the sense of who we are and what we value. It will hit us once the enforcement fever breaks, when we look at what has been done and no longer recognize the country that did it." New York Times Editorial, June 3, 2008.
RECAPTURING UNUSED GREEN CARDS
More Employment-Based Green Cards on the Horizon?
Soon, hundreds of thousands of additional employment-based visas may become available for foreign nationals waiting in line for a green card.  Representatives Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI) have introduced bipartisan bill H.R. 5882 to "recapture" both family-based and employment-based green cards that have been authorized for use in the past, but that have gone unused because of government processing delays.  Read »
THINK TWICE BEFORE POSTING YOUR PROFILE
CIS to Use "Facebook" to Gather Information
Embarrassing photos, financial woes, personal conversations?  Unsure of what may be lurking on the internet about your life?  Your so-called private life may not be so private anymore.  U.S. Citizenship and Immigration Services (CIS) has recently indicated that it will slowly be decreasing requests for information from companies and foreign nationals and begin collecting information from public or commercial sources, such as credit report agencies and Facebook.  Read »

NEW I-9 FORM
Don't Get Caught Using the Wrong Form I-9 
Effective immediately, employers completing Form I-9 for Employment Eligibility Verification must use the recently amended June 5, 2007 version.  Be sure to pay attention to the removed documents!  Read »

GET WITH THE PROGRAM
New Twist for Visa Waiver Program Travelers
The Visa Waiver Program (VWP) allows nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa.  However, starting January 12, 2009, the Department of Homeland Security (DHS) is implementing an Electronic System for Travel Authorization (ESTA), which will be mandatory for all nationals or citizens of VWP countries.  Sign up begins August 1, 2008.  Read »
OPERATION JUMP START
National Guard Border Troops Moving On
Two years, 6,000 troops and $1 billion later, Operation Jump Start came to an end on July 15, 2008.  Read »
CAN MY PARTNER JOIN ME IN THE U.S.?
Visas for Cohabitating Partners of Foreign Temporary Workers
When entering the U.S. in a nonimmigrant classification a frequent concern is whether loved ones can join them in the U.S.  While a Marriage Certificate and Birth Certificate of children, in most cases, qualify family members for derivative status, unmarried, same-sex and opposite-sex partners face a more rigorous challenge.  Read »
Bi-Partisan Bill Aims To Increase Number of Available
Employment-Based Green Cards
 
In a welcomed move, Representatives Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI) have introduced bi-partisan bill House Resolution (H.R.) 5882 to "recapture" both family-based and employment-based Permanent Resident Cards ("green cards") that have been authorized for use in the past, but have gone unused because of government processing delays. This would significantly decrease waiting time for applicants for permanent residency, some of whom face delays of up to 10 years before green cards become available to them.
 
In 1990, Congress set an annual quota of 140,000 employment-based green cards per year.  That number includes the workers themselves as well as any immediate family members accompanying them.  Some estimates suggest that this system allows for only 50,000 - 60,000 green cards per year to go to workers sponsored by U.S. companies.
 
Of the limited number of green cards available, many go unused because of backlogs in processing applications by government agencies.  The law does not currently provide for a "rollover" of those extra green cards. 
 
If H.R. 5882 passes, it is estimated that approximately 400,000 to 450,000 additional green cards will be made available by the end of this year, with more to follow in the future. 
 
The bill is more likely to pass because of Representative Sensenbrenner's decision to co-sponsor.  A staunch opponent of illegal immigration, Sensenbrenner supports the full enforcement of existing immigration laws, including making the full number of approved green cards available to those seeking legal permanent resident status.  Attorney Jerry Grzeca has been the American Immigration Lawyers Association's Liaison to Representative Sensenbrenner's office for the past eight years and applauds his support of the bill. 
 
CIS to Use "Facebook" to Gather Information
 
At the American Immigration Lawyers Association's Annual Conference in Vancouver, a speaker representing U.S. Citizenship and Immigration Services (CIS) indicated that it will slowly be decreasing requests for "public" information from sources such as Police records and company annual reports. Instead, it will be collecting information from public or commercial sources, such as credit report agencies and Facebook.  This is in response to many saying that the agency's request for information is often over burdensome for applicants. CIS argued that if an applicant presents information to the public, it can use it to check the foreign national's information to speed-up the application process.  Facebook, an online social networking site created by a Harvard drop-out in 2004, has millions of users and more than thirty billion page views each month, according to Fastcompany.com. 
 
Facebook users can post information about themselves on a "profile" page, which can display information from the user's birthdate, address, phone number, place of employment and even pictures. Other users can access the profiles of other users and leave comments on their "Wall" and "tag" them in photos, which are then viewable to any user.  Now, any individual with a valid e-mail address can register and access user profiles. 
 
Though Facebook is one of the most widely used websites in the United States, users should be cautious in what material gets posted to their profile.  Facebook allows the user to set their own privacy settings, which can allow only users they deem acceptable to view their profile.  Foreign nationals with pending applications who use social networking sites should be mindful of the information they and others post to their profile pages.  
Use of Amended Form I-9 Required Immediately

Effective immediately, the newly amended June 5, 2007 edition of Form I-9 must be used by employers for employment eligibility verification.  It must also be used for re-verification of individuals who are re-hired within three years of their original hire date and those who are foreign nationals with expiring non-immigrant work authorization.  The amended I-9 form along with the verification information should be kept with the original I-9.

Section 3 of the I-9 is used for Updating and Re-verification for these two groups of individuals.  However, employers may not use an outdated edition of the I-9 for these purposes.  When re-verifying the employment eligibility of a former employee who is re-hired within three years of the date the I-9 was originally completed, the employer should print the individual's name in Section 1 of the new version of the I-9, then complete Section 3 of the I-9 according to the Form's Instructions.

The amended version of the I-9 should also be used for re-verification of the work authorization of foreign nationals whose temporary classification is expiring, no later than the expiration date, following the instructions. 

There is an exception which allows H-1B and L-1 non-immigrants to continue their employment for up to 240 days after their current expiration date, if an extension petition has been filed before the expiration date.  In these cases, the employer should print the employee's name in Section 1 of the I-9, then complete Section 3 with the information on the Receipt Notice for the H-1B or L-1 extension petition, unless the employee presents some other document to show continuing work authorization.

The amended Form I-9 can be found by going to the U.S. Citizenship and Immigration Services website at http://uscis.gov/portal/site/uscis and clicking on Immigration Forms, then on I-9 (found after I-881). The revision date of June 5, 2007 can be found in the lower right-hand corner of the form. 

If you have any questions on I-9 compliance or would like to have us review your I-9 policies and procedures or conduct an audit of your records, please do not hesitate to contact us.


Prior Authorization for Visa Waiver Program Travelers
The Visa Waiver Program (VWP) allows nationals of certain countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa.  However, starting January 12, 2009, the Department of Homeland Security (DHS) is implementing an Electronic System for Travel Authorization (ESTA), which will be mandatory for all nationals or citizens of the twenty-seven VWP countries, ranging from Andorra to the United Kingdom.  These travelers will have to obtain ESTA approval before boarding a carrier that is going to the United States.

The ESTA program was developed by a law written as a result of the 9/11 Commission's recommendations.  The law requires the DHS to develop and implement an automated system to determine, in advance of travel, the eligibility of visitors to travel to the United States and whether their travel poses a law enforcement or security risk.  In addition to biographical information, applicants will be required to answer questions regarding communicable diseases, arrests and convictions for certain crimes, and a past history of visa revocation or deportation.

ESTA will only authorize a traveler to board a carrier for travel to the United States under the VWP and the authorization will be valid for two years.  Caution: this authorization is not a guarantee of admissibility to the United States at a port of entry.  In addition, individuals traveling on valid visas will not be required to apply for ESTA authorization.

The ESTA system will be available in English for voluntary applications beginning on August 1, 2008. Other languages will be available for voluntary applications by October 15, 2008.  The web-based system will be available at https://esta.cbp.dhs.gov.  There is currently no fee for the application.  The DHS is recommending that ESTA applications be submitted no less than 72 hours prior to travel. Eligibility should be determined almost immediately after application, and approvals are valid for two years or until the traveler's passport expiration date, whichever is sooner.  Anyone who is denied ESTA authorization would have to apply for a visa to enter the United States.

For assistance with the ESTA system, or to determine whether ESTA authorization is needed for your upcoming travel, please contact our office.


Two years, 6,000 troops, and $1 billion later, Operation Jump Start (OJS) came to an end on July 15, 2008.

OJS began when the four governors from the border states of California, Arizona, New Mexico and Texas signed a Memorandum of Agreement with the Department of Defense. Subsequently, 6,000 National Guard Troops were to be deployed to the U.S-Mexico border to assist the Border Patrol with surveillance operations, the construction of fences and barriers, and to support in border security for two years.

OJS was a short-term effort by the National Guard to support the U.S. Border Patrol while they attempted to double its size to 18,000 agents by the end of the operation.  Currently, less than half of the agents have been placed.

According to research conducted by Dr. Wayne Cornelius, Director of the Center for Comparative Immigration Studies at the University of California - San Diego, fewer than half of the undocumented immigrants who currently cross the border are apprehended even one time by the Border Patrol.  Dr. Cornelius' research also found that between ninety-two to ninety-eight percent of those attempting to cross the border, eventually get through.


A frequent concern upon qualifying for a non-immigrant employment-based classification is the possibility of having one's family or loved one's join them in the U.S.  While a Marriage Certificate and Birth Certificates of children, in most cases, qualify the family members for a derivative status, unmarried same-sex and opposite-sex partners face a more rigorous standard to be viewed as "dependents."

Opposite-sex partners may still qualify for a derivative status by establishing to U.S. Citizenship and Immigration Services (CIS) that they have entered into a "common law marriage" with their partner.  A common law marriage is considered to be a "valid marriage" by the CIS, if the local laws of the place of residence recognize the marriage as being the equivalent in every respect to a traditional legal marriage (including all of the same legal rights and duties).  Although the decision of whether or not the opposite-sex common-law partner will be eligible for a derivative status will be up to the discretion of the reviewing officer, evidence of common law marriage may circumvent the requirement of an official Marriage Certificate in some cases.

The same is not true for same-sex cohabitating partners.   Although similar evidence of a long-term relationship and life together is accepted to establish the partnership, same-sex partners may only be classified as B-2 visitors, provided they are otherwise qualified for a B-2 classification.  The "visitor" visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), for pleasure or medical treatment (B-2), or combination of both (B-1/B-2) purposes.  The B-2 "cohabitating partner" visa is available to partners of foreign nationals who hold visas in the following categories: A; G; NATO; F; J; M; E; H; I; and L.

Even though this is the only area of immigration law where same-sex partnerships are recognized, same-sex couples are not afforded the same benefits as their opposite-sex counterparts.  In particular, derivative status of some classifications, such as an L-1, allow the dependents to obtain employment authorization in the U.S., while a B-2 status only allows the same-sex partner to come to the U.S. for "pleasure," but not to work.
 
Grzeca Law Group, S.C. is an AV-rated law firm dedicated to providing superior professional service to the international business community by advising corporate clients on all aspects of employment-related immigration law.

Immigration Update has been prepared by Grzeca Law Group, S.C. for informational purposes and does not constitute legal advice.  This information is not intended to create, and receipt of it does not consitute, lawyer-client relationship.  Readers should not act upon this information without seeking advice from professional advisors.