ICE, OSC and the Online I-9:

While Immigration and Customs Enforcement ("ICE") has shown signs that it may be willing to reconsider its earlier stance that pre-filling Section 1 of the Form I-9 with data that an employee has already provided to their employer is impermissible, the Office of Special Counsel ("OSC") has provided its  opinion that, from the perspective of the anti-discrimination provision, pre-filling of the Form I-9 is to be discouraged. While it seems this is the result of two government agencies contradicting each other, that's not exactly the case. The provisions of the Form I-9 that concern ICE are not necessarily the same as those which concern the OSC and when the provisions of the Form I-9 were created, inter-connected online systems had not been contemplated.   So, while ICE is going to be concerned with the mechanics of form compliance, and whether the integrity of the data from integrated systems feeding the Form I-9 can be maintained with adequate audit trails and the ability to confirm if the data provided was in fact specifically provided by the employee, OSC is going to focus on ensuring that the employee was included in the process in a non-discriminatory fashion and was provided with the appropriate opportunity to review the data so that any errors or omissions do not result in a negative action by the employer. What this demonstrates is that complying with the provisions of the Form I-9 using online systems still includes risks along with the obvious benefits these systems provide. As the government continues to encourage employers to use E-Verify as well as implement their own online processes for immigration-related tasks, it is likely that we will see more succinct guidance for compliance with online I-9 tools in the future. Until then, clients should review plans for use of these systems with their Maggio + Kattar attorney.

Top two mistakes we are seeing in friendly audits of the new form

We have looked at more newly-completed I-9s than you could possibly imagine and have seen a couple of consistent errors that seem to crop up regardless of the client:

Section 1:

Just because the employee is the only one who completes page 1 doesn't mean the employer isn't responsible for checking it.  

Employers, you aren't off the hook just because you don't have to complete anything on page 1. Employers are still responsible for ensuring that the employee completed Section 1 correctly. We are seeing an increase in employees who use their birthdate in the field for form completion date (a common enough occurrence),  forgot to check a status or do not provide their birthdate, and these oversights are not caught by employers! Also, E-Verify employers - don't forget that if the employee provides an e-mail address, you MUST enter that into E-Verify!

Section 2:

Don't forget to put the employee's name at the top of the form!

Now that the Form is two pages long, you need to keep the employee's name at the top of the Section 2 page. There is no other place for the employee name, so you could easily mix up forms or lose it altogether. Many employers are forgetting this critical step!

U.S. Citizenship and Immigration Services' (USCIS) Public Engagement division is warning USCIS applicants and petitioners of a new telephone scam. According to USCIS, scammers are using a technique called "Caller ID spoofing" to display a misleading or inaccurate phone number in a recipient's Caller ID. The scammer poses as a USCIS official and requests personal information (such as Social Security number, passport number, or A-number), identifies supposed issues in the recipient's immigration records, and asks for payment to correct these records.  

USCIS encourages any individuals who receive these calls to say "No, thank you" and hang up immediately. According to USCIS, it never asks for any form of payment or personal information over the phone.

If you believe you may have been targeted by this scam, you can report it to the Federal Trade Commission at  https://www.ftccomplaintassistant.gov/ .  If you receive a call from USCIS for a case you are working on with Maggio + Kattar, please refer them to your attorney for further information and send us the name of the officer, date and time of call, and the nature of the inquiry.

Proponents and opponents of comprehensive immigration reform both emphasize the presence of an estimated 11 million undocumented aliens in the United States to support their respective positions. Opponents in particular call for stricter land border controls as the best way to reduce or eliminate the undocumented population. However, this emphasis ignores the fact that a significant portion of undocumented aliens in the United States enter legally, either with valid visas or under the visa waiver program, rather than illegally across our land borders.   Quantifying this population and developing strategies to deter overstays are as important to border security as increasing border control agents and building fences, yet finding the means to do so has long eluded federal officials.   

Since 1996, with the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), federal law has required the implementation of an integrated arrival and departure data system for all foreign nationals entering and departing the United States. However, legacy Immigration & Nationality Service (INS) and Department of Homeland Security (DHS) have struggled ever since to identify and implement workable systems to carry out this mandate.   While significant technological advances over the past two decades have vastly improved DHS' ability to monitor air arrivals, it has proven much more challenging to come up with a workable system for monitoring air departures, while a workable system for monitoring land arrivals and departures is years away from implementation. As a result, DHS has a difficult time identifying just exactly how many overstays are present in the country.   

Last July, the Government Accounting Office (GAO) submitted a report to Congress entitled "Overstay Enforcement-Additional Actions needed to Assess DHS's Data and Improve Planning for a Biometric Air Exit Program". The report is the latest assessment by GAO of the DHS's efforts to carry out the IIRIRA Mandate and conveys recommendations that DHS further assess and document the reliability of its current data on overstays and establish time frames and milestones for the implementation of a biometric air exit evaluation framework. In the report, the GAO acknowledges that implementing a workable biometric exit capability has been a "long-standing challenge" for DHS-certainly an accurate description of a more than 17-year long quest to fulfill the IIRIRA mandate. Faced with a series of obstacles, from funding shortfalls, lack of compatibility of databases, and strong resistance from airport officials, DHS has repeatedly pushed back its own timeline for developing this capability. In 2012, DHS reported on its recommendations for implementing biometric data exit collection at airports.  It has made little progress, however, in coming up with workable proposals for the same capability at land crossings, where the costs of installing such capability would be steep, and the likely disruption to local commerce and cross border traffic has engendered strong objection from local officials. Rather than provide an update on DHS' broad based efforts to carry out the 1996 mandate, the July 2013 GAO report focuses on the more narrow issue of how to ensure that DHS's overstay data is reliable.  

DHS has made considerable progress improving the ability of its current databases to identify and track overstays, but as the report highlights, it has also had difficulties ensuring the reliability of its data-a crucial failing that impacts not only its ability to define the size of the overstay population, but also the credibility of the data used to determine eligibility for participation in the Visa Waiver Program (VWP). The VWP is not available to countries whose nationals are denied visas or overstay above a certain percentage rate set by Congress. The lack of accurate exit departure data makes the task of determining compliance with the terms of the VWP extremely difficult. As the report notes, in 2012, DHS reported that it had more than 1.2 million arrival records that it could not match with a departure record. The inability to determine easily whether these individual arrivals have departed or remain in legal status makes it all but impossible to measure VWP compliance.  

The U.S. Department of State (DOS) recently released a cable to its Consular Officers and some Frequently Asked Questions (FAQs)

The cable notes that the Visa Office has specifically deleted the provision in the Foreign Affairs Manual that defined "marriage" for immigration purposes to mean "only a legal union between one man and one woman as husband and wife," and the word "spouse" to mean only "a person of the opposite sex who is a husband or a wife." A same-sex marriage is now valid for immigration purposes "as long as the marriage is recognized in the 'place of celebration,'" the cable states. Such marriages are valid for immigration purposes "even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. Same-sex marriages are valid "even if the applicant is applying in a country in which same-sex marriage is illegal."

DOS is asking its respective consular sections to identify what types of marriages are available for same-sex couples in-country and to properly update the visa reciprocity tables to reflect this information.

Additionally, the cable notes that beginning "immediately," same-sex spouses and their children are equally eligible for nonimmigrant derivative visas. Same-sex spouses and their children ("stepchildren of the primary applicant when the marriage takes place before the child turns 18") can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild without being named on a petition (or if a petition is not required). This includes Diplomat (A), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN - Trade National) visa categories, among others. If an applicant is otherwise qualified, the cable states, "he/she may be issued a derivative visa starting now."

Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fianc�(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fianc�(e) visas, the cable notes. To learn more about options available to LGBT couples, join M+K Shareholder Jim Alexander at the DC Bar on October 3, 2013.

The U.S. Department of State (DOS) has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants (visitors for pleasure), changing the available validity from 6 months to 60 months. The visa reciprocity schedule governs the total amount of time a visa applicant may receive on a visa to enter the U.S.  

This change does not impact an individual's duration of stay in the U.S. which is still governed by the I-94 admission duration. Individuals may be admitted for periods of up to 6 months.

Traveling to Nigeria on business?

A business visa is a document or stamp placed in a passport or travel document that authorizes a foreign national to apply for admission to Nigeria. In some cases, a treaty or special agreement authorizes citizens of certain countries to enter Nigeria without obtaining a visa.

With regard to length of stay, the business visa guarantees an individual unrestricted leave to remain for a period of no more than 90 days at a time. It is however important to state that a Business Visa can be extended in country should the need arise.

What can you do in Nigeria on a business visa? Some permissible activities include visiting local offices or subsidiaries of multinational organizations; attending business meetings, lectures, programmes and roundtable discussions; attending seminars or administrative trainings; attending information gathering sessions for corporate decision-making accomplished outside of Nigeria; participating in exhibitions, shows, concerts; at the invitation of the government, ministry or any agency of government for meetings and consultations.  

Business visas for Nigeria are typically issued for multiple entries; a business visitor may receive authorization to visit Nigeria for up to 90 days. Business visitor status may be extended in-country for an additional 90 days. Business visa holders are not allowed to work in Nigeria, importantly, business visas cannot be converted to a work visa in Nigeria after arrival.

The processing time to secure a Business visa varies from one consulate to another, but typically takes seven to ten business days.  

Investing in Nigeria?

The new policy allows the issuance of a visa at entry point, removing the barriers that currently prevent business people, tourists, and government delegations from visiting the country at short notice. The features of the policy include:

• Visitors who are in Nigeria for investment purposes are eligible to be issued 10 year visas when they can demonstrate enumerated criteria.
• Foreign investors with as much as $10,000,000.00 (Ten Million U.S Dollars) investment may be given up to a 25% employment quota without sacrificing employment opportunities for Nigerians.
• The Federal Ministry of Information in conjunction with the Federal Ministry of Labour, will grant an investment or skill transfer visa to foreigners who possess skills deemed valuable and not available locally.

Under the new visa regime, there are an additional five categories of visas, namely:

1. Visa at Points of Entry
2. Short Visit Visa
3. Temporary Resident Visa
4. Employment Based Visa
5. Scarce Skills Transfer Visa

The visa policy has since taken effect and businessmen and foreign investors are the greatest beneficiaries. For more details on these programs or Nigerian immigration, please contact the Global Immigration team member that you work with at Maggio + Kattar.  

*We thank Adekunle Obebe and Dayo Adu at our global immigration partners, Bloomfield Advocates & Solicitors, for providing us with this update on immigration law in Nigeria.

Whether your organization operates in one country, or in locations around the world, the marketplace for talent is global.  However, moving talent across borders has become increasingly competitive and complex. The obstacles of government regulations and bureaucracy, as well as the conflicting objectives of your own employees, can get in the way of meeting your organization's goals.

Understanding how to develop and leverage an organization's immigration programs, to attract the best talent, and then move talent where it is needed, when its needed and maintain compliance with recordkeeping, posting and notification rules, is no small task.

Our educational seminar will include what you need to know to effectively manage your immigration program from temporary, non-immigrant visas to the green card process.  From the basic to the sophisticated, we will provide you with tools to meet the on-going challenges of managing your organization's immigration program.  

Please join us on September 30, 2013 from 1:00 to 4:30 at our offices with cocktails immediately following the program at Hotel Dupont.

To RSVP or to inquire about CEU, please email us at events@maggio-kattar.com or by phone at 202-483-0053 by September 25.

Maggio + Kattar is pleased to invite you to join us for our final quarterly Immigration Community Forum for 2013  which will be held on Wednesday, October 23, 2013 from 9 - 11 a.m.  

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 mental health professionals when working with mentally ill clients.  

Our panelists will provide important guidance on the following:

• Competency issues
• Case Law and regulations governing competency and proceedings
• How to obtain a finding of no competency and 
• Burden of proof

• Challenges in obtaining certain forms of relief available to mentally ill non-citizens include:
• asylum and 
• cancellation of removal

• Working with mentally ill non-citizens and
• Advocacy efforts on behalf of mentally ill non-citizens 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.    

Jim Alexander lectured at Penn State University on Thursday, September 12, 2013 entitled "The Death of DOMA and Immigration" where he discussed the impact of Windsor v. U.S. on immigration law and policy and the unique challenges faced by LGBT immigrants.

M+K Shareholder Anna Gallagher , along with colleagues from Arent Fox and Catholic Charities will present at an all-day training seminar entitled: Immigration Court and Removal Defense. Other speakers at the seminar include the Honorable Judge John Gossart, Michelle Mendez and Debbie Sanders (Catholic Charities), Debbie Smith (CLINIC) and Peggy Gleason (USCIS Office of the Ombudsman). The training will focus on the practical aspects of representing noncitizens in immigration proceedings. It will provide information on collecting the appropriate supporting documentation and preparing and submitting relevant applications. At the conclusion of the training, there will be a moot court opportunity presided over by Judge Gossart.  

Join M+K Shareholder, Jim Alexander for Immigration Options for LGBT Clients in a Post-DOMA World on October 2, 2013 from 6:00 to 8:15 p.m. at the District of Columbia Bar Association's Continuing Legal Education program. The recent U.S. Supreme Court decision in Windsor dramatically changed the legal landscape of immigration options available to LGBT clients. From non-immigrant visas to green cards to waiver applications, there are many new options and new challenges that have surfaced in representing clients. Learn from our expert faculty about new opportunities and potential pitfalls. Find out how to navigate cases where marriage has not yet occurred, how clients will need to document their relationship, and where on-going advocacy is needed.

For more information or to register, click here.