The new I-9 form requires that  employees include new and additional information when completing the I-9 form which verifies U.S. employment eligibility.  Of note are two new "optional" fields for employees to complete in Section 1 for phone number and e-mail address.   

On July 1, USCIS announced their newest E-Verify enhancement: Tentative Non Confirmation (TNC) e-mails that will be sent directly to employees (based on the e-mail address provided by employees in Section 1 of the Form I-9). This e-mail advises the employee that, based on the information the employer entered into the E-Verify system, there is an issue with the data and that their employer should have provided them with a printed copy of that notification. The e-mail also encourages employees to report any non-compliance.  

To help ensure that a TNC is not generated due to data entry errors, the E-Verify system does have a "Check Data" step whereby the employer is advised to confirm that they have entered information properly as it did not immediately match SSA or DHS record. From experience, we know that a number of TNCs are generated by data entry errors (or illegible forms, so the end user is entering what it appears the form says based on their best guess). No pressure employers, but data entry and process errors are now going to become glaringly obvious. The timing of the TNC will also undoubtedly cause misunderstandings and confusion unless employees are contacted immediately.  

Additionally, this new functionality creates a new requirement for E-Verify employers: If the employee enters an e-mail address on the Form I-9, the employer MUST now enter it into E-Verify.

So what should employers participating in E-Verify do?

1. Be certain that you are complying with your MOU.  
2. Never use E-Verify to screen candidates, or in a discriminatory manner.  
3. Ensure that any person who is entering cases on your organization's behalf is trained on E-Verify and the Form I-9 at least annually.  
4. Let your new employees know what to expect IN WRITING. We realize that the Form I-9 already comes with six lengthy pages of instruction, but there is little mention of what happens with the "optional" phone and e-mail fields. When employees complete the Form I-9, be clear that if they include an e-mail in Section 1 that you will be REQUIRED to enter this data into E-Verify and they would be contacted directly by the government in the event that there is any issue with matching records to the DHS and SSA databases.

Note that this new feature does not relieve employers of the obligation to provide employees with a printed version of the Notice of Tentative Non Confirmation. E-Verify employers would be wise to review their current processes as well as employee communications with regard to the Employment Eligibility Verification process and ensure they are doing all they can to reduce the occurrence of procedural errors, and employee concerns or confusion.  

The State Department has announced the closure of U.S. Embassies and Consulates this week in 20 different countries throughout Africa, the Middle East and Asia in response what it has called "credible terrorist threats."  The locations of the closures range from the African island nations of Madagascar and Mauritius to Bangladesh and all posts on the Arabian peninsula.   These Embassies and Consulates will remain closed through Friday, August 10th. 

At present, the House Judiciary Committee has passed separate pieces of legislation that would overhaul different facets of the immigration system, while the House Homeland Security Committee has passed an unrelated border-security bill.   Although Congressman Ryan reportedly has said that he expects at least one immigration reform bill will be taken up by the House that includes an option for legalization of undocumented workers, he noted that any bill would likely require undocumented immigrants to wait fifteen years to become U.S. citizens.  In addition, Ryan has stated that he anticipates separate votes on border security and interior enforcement.

In May 2013, before the Senate finalized its bill for Comprehensive Immigration Reform, the House Homeland Security Committee unanimously passed a border security bill introduced by Texas Republican Congressman Michael McCaul.  One key difference between the House bill and the related border enforcement mechanisms in the Senate's bill is that the House bill relies on the expertise and guidance of the Department of Homeland Security (DHS) rather than arbitrary numbers mandated by Congress for border staffing and patrol perimeters.  In the House bill, DHS would act under the review of the Government Accountability Office (GAO) to ensure appropriate staffing and compliance.   

In June 2013, with a wide majority of Senators approving a comprehensive immigration reform bill, many advocates hoped that we might have movement before the summer break.  After years of fits and starts on a viable and comprehensive immigration bill that would fix the current broken system, employers, immigrants and non-profits joined with a sense of hope and optimism that there might finally be light at the end of the tunnel.   Given the comprehensive and fair nature of the Senate bill, many believed that we actually would see a grand bargain that would solve many of these decades-long problems.  However, early July saw not only scorching temperatures in the nation's capitol, but also tempers on Capitol Hill that left many wondering if House Republicans were looking to take the comprehensive and reform out of "Comprehensive Immigration Reform" and only pass legislation improving border security.    

Long-time supporters of reform have hoped that if a grand bargain cannot be struck that at least some of the most problematic issues could be fixed, including providing status for the growing number of undocumented persons in the United States - most with U.S. citizen family members - and increasing the availability of work visas to continue would allow the U.S. to attract the best and the brightest to our shores.  While not perfect for any one group, the Senate bill provides solutions to a broad base - companies, non-profits and individual stakeholders - and promises to ease the tensions of the long standing status quo.   

Taken together, the individual bills currently in the House make a large step forward in addressing the pervasive, systemic issues in our nation's immigration system.  The question is whether the House will be able to pass each of these bills individually or, once agreement is reached on a border security plan, will House members simply push off any legislation aimed at immigration benefits until after the Fall elections.   

We need a bill that addresses important issues like border security and ensuring a legal, strong and smart workforce.  However, any proposed reform must include and insist on achievable goals such as eliminating long waiting lines for visas, increasing the number of H-1B visas and providing a pathway to citizenship for the undocumented workers already in the United States.   We hope that as Congress returns to meet with their constituents,  they will take a closer look and a broader view of the goals and ideals of Comprehensive Immigration Reform and remember that we are a nation of immigrants. 

In late June, the Supreme Court issued a 5-4 decision in the case of United States v. Windsor, finding that § 3 of the 1996 Defense of Marriage Act (DOMA) is unconstitutional. DOMA provided that the word "marriage" in any federal law meant only a union of a man and a woman, leading to the denial of countless federal benefits to legally married same-sex couples, including immigration benefits. For years, bi-national couples were unable to receive the same immigration benefits available to heterosexual couples, often leading to the forced separation of families. However, now that DOMA has been found unconstitutional, the decision allows for immediate recognition by the federal immigration agencies of same-sex marriages that were valid in the jurisdictions where they were performed.

On July 2, 2013, U.S. Citizenship and Immigration Services issued guidance stating that U.S. citizens and lawful permanent residents can now file I-130 petitions on behalf of their same-sex spouses and will not be automatically denied as a result of the same-sex nature of the marriage. USCIS also confirmed that generally, it will look to the law of the place where the marriage took place when determining if it is valid for immigration law purposes. This means that individuals married in U.S. states recognizing same-sex marriage, but living in states that do not, will still benefit from the Supreme Court's decision in Windsor. In addition, USCIS Director Mayorkas indicated during public engagements, that since February 2011, USCIS has kept a list of all I-130 petitions filed by same-sex couples that were denied, and was prepared to act accordingly to issue approvals when appropriate.

On July 17, 2013, the Board of Immigration Appeals issued a precedent decision in Matter of Zeleniak, holding that Section 3 of the Defense of Marriage Act is no longer an impediment to the recognition of lawful same-sex marriages and spouses under the Immigration and Nationality Act if the marriage is valid under the laws of the State where it was celebrated. The BIA's decision is binding on USCIS and the nation's immigration judges.  

The immigration agencies' commitment to swift implementation of the Windsor decision is admirable. Bi-national, same-sex couples should consult with experienced immigration counsel to understand how this decision impacts the foreign national's eligibility for permanent resident status or other immigration benefits.

Since the transition from paper to electronic I-94 cards began this Spring, more and more issues have come to light on the accuracy of the information contained and the ability of foreign nationals to easily access their data. This has resulted in a variety of errors creating challenges for travelers, employees and companies alike.

What is an I-94 and why is it important?

I-94 cards are issued by CBP as evidence of a foreign nationals' U.S. admission, U.S. visa classification and expiration dates. In order to apply for other U.S. immigration benefits, an individual must be able to show lawful non-immigrant status in the U.S. Also, I-94 data is required for an individual to receive a Social Security Number, to complete a Form I-9 for employment and to show evidence of their lawful U.S. status. If CBP's system is unable to locate an individual's I-94 record, proving lawful status in the U.S. becomes significantly more complicated.

What types of issues have we seen with the electronic I-94?

A variety of issues have now come to light, from individuals not being able to successfully locate their electronic I-94, to the data on the I-94 not being correctly recorded. It was also quickly discovered that the CBP's online system will not allow the entry of foreign passport numbers that contain over 10 digits. Unfortunately, there are foreign passports with numbers listed as the "Passport Number" on the top right hand corner of the biographic page which contain too many digits for CBP's online system. For example, older Mexican passports contain numbers listed as "Passport Number" with 11 digits that start with the year of issuance. Even if one was to enter just the first 10 digits of the 11 listed under "Passport Number", the I-94 will not be located.

This issue occurs because CBP's online system requirements mirror the standards established for Machine Readable Travel Documents. These standards make it easy for automated systems to scan a travel document, however what is easy for a machine to scan is not as easily discerned by the human eye, and confusion can be compounded when what is labeled "Passport Number" is not actual the "Passport Number" used when scanning of the same document.

While foreign nationals with passport numbers of 9 digits or less should have no issue simply entering the number labeled as "passport number" on their passport to retrieve their I-94, use of the first 10 characters in the second line of data in the machine readable section (omitting any special characters like >) should work for them as well.

Other potential problems include the name not being recorded as it is noted on the passport. If the individual has several names, we recommend trying to enter the names in different areas if the I-94 is not being located. For example, if the individual has two last names, Jose Bonilla Gonzales but no middle names, if the I-94 is not being located, try to enter Jose Bonilla under the first name and Gonzales as the last name. If this does not work, check all immigration related documents for name variations or potential typographical errors. We recommend comparing the DS-160, the passport, the visa stamp and the I-94 to determine any alternate options for spelling.  

How do I ensure my I-94 information is correct?

Previously, with paper I-94 cards, foreign national travelers were able to immediately review the card and recorded information. If that information was found to be incorrect, the traveler was able to request review and correction prior to leaving the U.S. port of entry. Now, the individual may not discover an error until after their arrival and admission to the U.S. when they are able to access a computer. Make sure you print your admission document as soon as possible after arriving it in the U.S. and consider carrying it with you while in the U.S. to ensure that you always have evidence of your status. If you are unable to successfully locate your electronic I-94 or it contains errors, please contact the attorney you work with at Maggio + Kattar immediately.  

Perhaps the most significant information to be gleaned from this year's report is the striking increase in the overall number of nonimmigrant visa issuances over the past few years. In FY 2009 (October 1, 2008-September 30, 2009), during the worst of the Great Recession, only 5,804,182 nonimmigrant visas were issued worldwide by U.S. consular officers. By FY 2012, the total number of nonimmigrant visas issued had risen to almost 9 million (8,927,090) an increase of 35% in just three years. The increase is even more impressive when compared to the issuance totals from FY 2003 (4,881,634).  

During this period, visa issuances were up at almost all U.S. embassies and visa-issuing consulates.   In Brazil, for example, total issuances at each of the four visa issuing posts in country (Brasilia, Recife, Rio de Janeiro, and Sao Paulo) have more than doubled since 2009, and compared to 2003 the numbers are over ten times greater for Sao Paolo (62,928 in '03 versus 526,634 in '12) and a staggering fifteen times greater for Brasilia (8,345 versus 123,520). It's a similar story in China, where the total numbers of visa issued soared from 455,279 in FY 2009 to 1,205,095 in FY 2012.  

Increases in visa issuances in the Western Hemisphere and East Asia/Pacific make up well over half of the total increase since FY 2009, with smaller but still significant increases observed in Europe, the Middle East, and Africa. The statistics also point to some intriguing changes in issuance patterns. In East Asia, the increased numbers came about despite the impact of South Korea's designation as a visa waiver country in 2008, which by eliminating the tourist/business visitor's visa applications for short term travel to the U.S. only reduced the total numbers of NIV's processed in Seoul from 430,809 in FY 2008 to only 89,612 in FY 2013. Interestingly, visa issuance in India has only increased slightly since 2009 (399,510 in '12 versus 347,267 in '09) and was actually down from 2007, when a total of 437,035 were issued. In fact, total issuances for all of South and Central Asia are down from a peak of 649,380 in 2007 to 606,872 in 2012.  

Visa issuance numbers in Russia also tell a very interesting story. In 2012, 227,918 NIVs were issued in Russia, considerably more than in any other country in the region, compared to 155,938 in 2009 and only 89,004 is 2003. In fact, U.S. Consular officers in Russia processed almost as many NIVs in 2012 as their counterparts in the United Kingdom, Germany, and France combined.  

In DOS' statistics on B-1/B-2 (business and tourism visitor) visa category,  denials or refusals, by nationality over the same period show that these rates for many nationalities has also dropped significantly. Specifically, the adjusted refusal rate for Brazilian B visa applicants decreased from 7% in FY 2009 to only 3.2% in fiscal year 2012, while during the same period the refusal rate for B applicants from China dropped from 15.6% to 8.5%. Similarly, while 35.9% of B visa applicants from the Philippines were refused in FY 2009, only 23.8% were denied in FY 2012. By contrast, B visa denial rates for Russians increased over the same period from 4.9% to 9.6%, although this may be a statistically insignificant increase.

The real decline in nonimmigrant visa denial rates for these and many other nationalities challenges the lingering and increasingly inaccurate perception in many countries that it is difficult to qualify for a U.S. visa, and can be very useful in preparing nervous clients for their visa interviews. At the same time, the relentless increase in total non-immigrant visa workloads means that busy consular sections will be hard-pressed to keep appointment scheduling delays under control, especially during the busy summer travel season. Regular monitoring of the wait times for individual consular sections will be essential in order to make certain your clients are able to obtain timely appointments and receive their visas in time to meet their obligations in the U.S.

The U.S. Citizenship and Immigration Services Ombudsman's Office recently issued its 2013 Annual Report to Congress, focusing on four key areas of study: humanitarian; families and children; employment; and U.S. Citizenship and Immigration Services' (USCIS) customer service. The USCIS Office of the Ombudsman is an independent office within the Department of Homeland Security (DHS) that assists with cases on an individual basis; proposes solutions to problems to USCIS; and works with other DHS components, the Department of State, and the Department of Justice.  

In the humanitarian sector, USCIS has created trainings on topics such as obtaining certifications from law enforcement officials and has agreed to adopt almost all of the Ombudsman's recommendations concerning unaccompanied children. Specifically, the Ombudsman recommended that USCIS accept jurisdiction of unaccompanied children referred by the Executive Office of Immigration Review or of children in custody under Health and Human Services. The Ombudsman also recommended that USCIS enlist clinical experts who have been trained to interview vulnerable children and limit headquarters review to thirty days. USCIS has agreed to implement these recommendations. However, persistent problems remain for Special Immigrant Juvenile Status applicants and family-based petitions that were automatically revoked following the death of a petitioner or beneficiary. Regarding families and children, the Ombudsman's Office has made a formal recommendation to USCIS for improving the process for removal of conditions on residence for spouses and children and particularly to train USCIS officers and other staff on the updated field manual. The Ombudsman's Office also supports USCIS's adjudication of provisional waivers for immediate relatives who have accrued unlawful presence and who must leave the U.S. to go a consular interview abroad. The Ombudsman will continue to monitor this initiative to ensure it addresses the extended separation of families while USCIS decides inadmissibility issues.  

The greatest issues currently facing employment-based immigration include the overwhelming number of Requests for Evidence, difficulty in obtaining H-1B and L-1 visas for start-up companies, and delayed processing times in the EB-5 category. The USCIS Office of the Ombudsman recognizes that each year USCIS continues to improve the quality of its customer service. This year, USCIS created the Customer Service and Public Engagement Directorate in order to provide information to USCIS applicants and continue its efforts in public discourse. The Administrative Appeals Office has dramatically reduced its processing times, from thirty-six months to "current." Finally, fee waiver requests have been adjudicated inconsistently and the Ombudsman is working to rectify this problem. This year's annual report describes the efforts of the Ombudsman to improve the services provided by USCIS.  Overall on-going communication of Stakeholders with USCIS and the Office of the Ombudsman on individual and systemic problems will undoubtedly continue help to improve the immigration experience for all.

We encourage employers to revisit their personnel policies with respect to misrepresentations that may have been made in connection with the employment process. Specifically, many companies have policies in place that do not allow for individuals who have provided false or misleading information in connection with obtaining employment to remain at the company.   This begs the question - if it is OK to lie to your employer about who you are in order to obtain employment, what else is it OK to lie about? If it is OK to obtain false documentation to work illegally, what other illegal activities are OK? If you agree to overlook certain information for one employee, must you overlook it for other employees? Where do you draw the line?

This has already been a very tangible issue for many employers. Last summer, certain immigrants who came to the United States as children without valid immigration status, became eligible to apply for U.S. work authorization under the Deferred Action for Childhood Arrivals (DACA).   Some of these individuals may have already been employed in the U.S. using false or fraudulent documentation or by representing themselves as legally authorized.  However, after applying for and being granted a valid work permit under the DACA program, these employees may have approached their employer to "update" their information. Providing new documentation with different information - new names, or birthdates or pictures, puts both employers and employees in a difficult spot. Alerting the employer to the existence of the previously false documentation may put the employee at risk of termination. Employers who choose to take action, or not take action, once they are aware that the employee provided false documentation, risk taking action that is inconsistent with their policies and therefore diminishing the integrity of those policies when violations, unrelated to immigration, occur in the future.

At first blush, it would seem that employers, seeking to maintain the integrity of their corporate policies require adherence to all applicable laws, as well as personal integrity and truthfulness, have no choice but to terminate the employment of individuals who reveal that earlier documentation provided to satisfy the Form I-9 was invalid. Many employers enact "zero tolerance" policies for dishonesty and violations of policy and/or law. This "zero tolerance" allows for consistent response to policy violations and reduces an employer's risk of employee claims of unfair treatment.

Employers may wish to think forward about possible changes in their workforce if Comprehensive Immigration Reform (or a substantial change in law that allows for previously undocumented immigrants to obtain U.S. work authorization) and address these policy issues in anticipation of these changes. Some employers, with a small portion of their workforce impacted by such a policy, could take the position that a loss of employment is the risk the foreign national took when they knowingly worked illegally in the US.  However, in a climate where a change in U.S. immigration laws allow an individual who was undocumented to apply for a so-called amnesty provision -- and even goes so far as to provide guidance for employers on how to complete the Form I-9 when information in Section 1 (name, birthdate and status) have changed - can and should U.S. employers follow suit and provide amnesty as well in support of the government's actions?  

The repercussions of employer actions that are contrary to the efforts of the government could have damaging effects on an already fragile economy. Employers should be thinking about this now when they have time to consider the potential impact holistically. This is not a decision to be left solely in the hands of one department as it impacts all of an organization's operations and culture. The future of immigration policy in the US is still uncertain, but employers should prepare now for how they will respond to change considering both the impact to policy and liabilities as well as culture, operations and their impact on the communities in which they operate.

A new immigration law took effect in in Kazakhstan in late May 2013 that reorganized the country's visa classification system.The new rules serve a dual purpose. First, they aim to create favorable conditions for foreign nationals, including tourists, private persons, and business visitors, who travel to Kazakhstan. Second, the rules serve to reduce the number of foreign nationals engaged in impermissible activity in Kazakhstan such as illegal entrepreneurial, labor, and other remunerated work.

In determining whether to issue a visa, the Kazakhstan immigration authority will consider the political and migration situation in the visa applicant's country of nationality or permanent residence.

Types and Categories of Visas

There are now two general categories of visas: nonimmigrant visas for diplomatic, service, investor, business, missionary, tourist, and transit activities; and immigrant visas for work, permanent residence, family reunion, education, work and humanitarian stays.

Each of these visa categories, with the exception of tourist and transit visas, is further divided into sub categories. The most notable subcategories are the investor, business and performance of labor activity visas.

Investor Visas

These visas are issued to foreign nationals who are engaged in investment activity in Kazakhstan as a single entry visa for up to 90 days or multiple entry visas for up to 3 years.

Business Visas

The new law has imposed new restrictions for business visitors. Business visas are issued to foreign nationals who enter Kazakhstan for the purpose of participating in conferences, forums, exhibitions, cultural, scientific and other events, and also for delivering lectures and teaching at educational establishments. Business visas are now divided into subcategories based on the specific types of activities a visitor intends to perform, with each visa subcategory now having its own maximum allowable stay per entry.

Business visitors are not allowed to extend the validity of the visas, which are issued according to the time requested in the invitation letters submitted in support of their visa application. Visitors in all of the new business visa subcategories must also limit their cumulative stay in Kazakhstan to 60 days per six month period. The annual maximum cumulative period of stay for business visitors remains 120 days.

• D1 Business Visa: participation in conferences, symposiums or similar events and lecturing or teaching at academic institutions. Visitors in this subcategory must limit each stay to 30 days per entry.
• D2 Business Visa: business trips, assembling or maintaining equipment, negotiating or signing contracts, or consulting and auditing services. Visitors in this subcategory must limit each stay to 60 days. 
• D3 Business Visa: providing humanitarian aid, conducting negotiations, executing contracts, rendering consulting and auditor's services Visitors in this subcategory must limit each stay to 30 days.

Work Visas

Generally, work visas are divided into five subcategories:

• The M1 Visa is renewable visa issued to foreign nationals on the basis of a work permit or permission for independent employment and is valid for up to one year or for the effective term of allowed employment.
• The M2 Visa is for Dependents of M1 Visa Holders.
• The M3 Visa is issued to foreign nationals who are submitting documents to the local executive bodies for employment permission and is valid for a period of up to 30 days per entry.
• The M4 Visa is issued to business immigrants who come to Kazakhstan for the purpose of conducting entrepreneurial activity for period of up to one year.
• The M5 Visa is issued to seasonal employees.

Simplified Procedures for the Issuance of Visas and Registration of Passports

The new rules retain the simplified procedure for obtaining visas for Kazakhstan for nationals of 48 developed countries including the United States, Canada, Great Britain, Japan, Israel, Denmark, Australia, Bulgaria, Norway, Poland, Singapore, France, Spain, Germany, Korea, among others. Nationals of these countries can obtain short-term visas for Kazakhstan without formal invitation letters. Additionally, registration of passports of foreign nationals from the 48 enumerated "developed" countries takes place at the Kazakhstan state border checkpoints when passing a passport-border control. The visa is issued at that time and there is no need to submit an application prior to the entry.

* Maggio + Kattar extends its sincere thanks for this update on immigration processes in Kazakhstan to Ms. Yuliya Chumachenko and Mr. Alexander Chumachenko from the Aequitas Law Firm.  

Nationwide advocacy efforts have resulted in legal representation for mentally ill noncitizens in immigration proceedings, including the appointment of guardians. Government attorneys and the private bar alike recognized and advocated for guidance on how to deal with mentally ill noncitizens.

The forum will provide an opportunity for participants to learn about changes to the law and procedures, to hear about advocacy efforts being carried out by organizations and how to effectively collaborate with psychologists when working with mentally ill clients.  

Our panelists will provide important guidance on the following:

• Competency issues
  • Regulations governing competency and proceedings
  • How to obtain a finding of no competency
  • Burden of proof
• Forms of relief available to mentally ill noncitizens
  • Asylum
  • Cancellation of removal
• Working with mentally ill noncitizens
• Advocacy efforts on behalf of mentally ill noncitizens in the immigration context

Please join us in our 5th Floor Conference Room for a continental breakfast at 9 a.m., immediately followed by the panel.   RSVP to:  events@maggio-kattar.com. Maggio + Kattar, 11 Dupont Circle, NW, Suite 775, Washington, DC 20036.

M+K Attorney Elizabeth Carlson has been selected Vice Chair of the American Immigration Lawyers Association's (AILA) District of Columbia Chapter's Executive Office of Immigration Review (EOIR) Committee. The position will involve working with Washington EOIR and AILA members on issues of concern regarding the immigration court and its practices and procedures.