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Immigration News: Important Updates on USCIS, DHS and a New Executive Order

June 11, 2008

By The Immigration Practice Group

* USCIS to Offer Premium Processing for Certain I-140 Immigrant Petitions Beginning June 16, 2008
* DHS Secretary Chertoff Announces 2-Year EADs for Adjustment Applicants
* Executive Order Limiting Federal Government Contracts to E - Verify Employers 
* USCIS Publishes Q&As Regarding the Extension of Optional Practical Training for Qualified Students

USCIS to Offer Premium Processing for Certain I-140 Immigrant Petitions Beginning June 16, 2008

Beginning June 16, 2008, USCIS will accept requests for premium processing of I-140 petitions filed on behalf of individuals: (1) whose sixth year of H-1B eligibility will end within 60 days; (2) who are eligible for a further extension of H-1B status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (i.e. those individuals eligible for an extension because they have an approved I-140 petition but are unable to file for adjustment of status because their priority date is not current); and (3) who are ineligible to extend their H-1B status under section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (because the labor certification application or I-140 petition was not filed 365 days prior to the filing of the H-1B extension petition). For a non-refundable filing fee of $1,000 paid to USCIS, premium processing service will result in adjudication of the eligible I-140 petition within 15 calendar days. This is a significant development because the beneficiary of such an approved I-140 petition may file an H-1B petition to extend status for a three-year period, which will provide much needed relief for those individuals who would otherwise be unable to extend their H-1B status beyond the six year time limit.

DHS Secretary Chertoff Announces 2-Year EADs for Adjustment Applicants

DHS Secretary Chertoff announced this week that USCIS will begin issuing Employment Authorization Documents ("EADs") with a validity period of two years to applicants with pending adjustment of status applications. EADs for adjustment applicants are currently issued with a validity period of one year, and must be renewed annually. USCIS is expected to begin issuing the new two-year EADs on or around July 1, 2008.

Executive Order Limiting Federal Government Contracts to E-Verify Employers

On Friday, June 6, 2008 President Bush issued an Executive Order which restricts federal government contracts to only those employers that are registered with the E-Verify system.
E-VERIFY SYSTEM

As previously reported through our Client Alerts, the E-Verify system is an electronic verification system introduced by Department of Homeland Security (DHS). The E-Verify System is an internet-based employment verification system operated by the United States Citizenship & Immigration Services and Social Security Administration. The systems purpose is to provide employers with the ability to verify electronically employment eligibility for new hires as well as to confirm validity of their social security numbers. Basic access to the E-Verify system is free to employers and is available in all 50 states. Today, DHS designated E-Verify as the electronic eligibility verification system that all federal contractors must use as required by this Executive Order issued by President Bush.

EXECUTIVE ORDER

In issuing the Order, President Bush states that the intention of the Order is to promote economy and efficiencies within the Federal Governments procurement process with its contractors. In this regard, the President notes that contractors used by the Federal Government who employ undocumented workers are not able to rely on the continuing availability and service of those workers.  These contractors face the possibility of enforcement actions that would severely disrupt their workforce population. As a result, these contractors are not able to guarantee a stable, uninterrupted provision of goods and/or services to the Federal Government due to the uncertainty of their workforce.
President Bush acknowledges that those contractors who adopt rigorous employment eligibility confirmation policies are less likely to face a workforce disruption as the result of any enforcement action. These contractors are thus able to provide the Federal Government with a more stable, dependable workforce that promotes economic efficiencies for the Federal Government. To ensure these continued efficiencies for the Federal Government, the Executive Order mandates that Executive department and agencies that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security to verify the employment eligibility of: (i) all persons hired during the contract term by the contractor to perform employment duties within the United States; and (ii) all persons assigned by the contractor to perform work within the United States on the Federal contract.

The major practical effect of this Order is that a far greater number of companies will now have no choice but to enroll in the E-Verify system. Prior to the issuance of this Order, the level of pressure to enroll in E-Verify very much depended on the laws and regulations of the particular state or states in which the company operated, as a growing number of states have implemented rules that in some way encourage or require employers to use E-Verify. With this Order, however, any company that wishes to secure a federal government contract will be required to use the E-Verify system.
Another important practical effect is that the Executive Order appears to indicate that federal contractors will in the future be required to use E-Verify to check the employment eligibility of certain current employees. The program historically has prohibited the verification of current employees through the automated system. Employers using E-Verify today should not begin using the E-Verify system to check eligibility of current employees until further guidance is issued by the government.

It is our understanding that in the very near future the Government will be proposing amendments to the Federal Acquisition Regulation to implement the Executive Order. Those regulations should provide additional information regarding compliance with the Executive Orders requirements. Paul Hastings will provide an additional update once those regulations are issued.

USCIS Publishes Q&As Regarding the Extension of Optional Practical Training (OPT) for Qualified Students

As discussed during the April 2008 Global Personnel Alliance ("GPA") conference call, the Department of Homeland Security released an interim final rule on April 4, 2008 that (1) extended the period of Optional Practical Training ("OPT") from 12 to 29 months for qualified F-1 students (those with STEM degrees employed by an E-Verify enrolled employer), and (2) provided "cap gap" relief by automatically extending the period of stay and employment authorization for all F-1 students with pending H-1B change of status petitions.

USCIS recently published supplemental questions and answers regarding the interim final rule. These Q&As clarified the following:

TRAVEL

  • F-1 students benefiting from the cap gap provision may not travel in F-1 status during the cap gap extension period. Only those F-1 students with a valid F-1 visa, properly endorsed I-20, and unexpired EAD may travel outside of the U.S. during the cap gap extension period and return in F-1 status.

ELIGIBILITY FOR EXTENDED OPT

  • An F-1 student may apply for a STEM 17-month OPT extension during the cap gap extension period. However, the application may not be made once the cap gap extension period is terminated and the student enters the 60-day F-1 grace period.

  • An F-1 student who received an undergraduate STEM degree, but whose graduate degree is in a non-STEM field and whose current OPT is based on the graduate degree is not eligible for the STEM 17-month OPT extension.

  • If an F-1 student has a dual major, and one of the fields is identified on the STEM Designated Degree Program List, and the practical training position is directly related to the F-1 student's STEM degree, the student is eligible to apply for the STEM 17-month OPT extension. (A student may not apply for the STEM 17-month OPT extension based on the student's minor.)

LIMITS ON UNEMPLOYMENT

  • F-1 students on OPT (including those who have OPT extended due to the cap gap provision) may have up to 90 days of unemployment. F-1 students who receive the STEM 17-month OPT extension may have an additional 30 days of unemployment. (The limits on unemployment do not apply to unemployment prior to April 8,  2008.)

  • Each day during the period when OPT authorization begins and ends that a student does not have qualifying employment counts as a day of unemployment.  The one exception is that a period of up to 10 days between the end of one job and the beginning of another will not count as time spent unemployed.

  • If an F-1 student with OPT travels outside of the U.S. while unemployed, the time spent outside of the U.S. counts as unemployment against the 90/120-day limits. If an F-1 student with OPT travels while employed, the time spent outside of the U.S. does not count as unemployment.

  • F-1 students who receive a STEM 17-month OPT extension must work at least 20 hours per week for an E-Verify enrolled employer in a position directly related to the student's STEM degree.

E-VERIFY

  • The hiring site where the F-1 student will be employed must be enrolled in and using E-Verify in order for the student to qualify for a STEM 17-month OPT extension. 

  • If an F-1 student currently works for two different employers and wishes to continue with both employers during a STEM 17-month OPT extension, both employers must be enrolled in E-Verify and each job must relate to the student's STEM degree.

I-9 COMPLIANCE

  • When completing an I-9 form for an F-1 student who has applied for a STEM 17-month OPT extension (awaiting adjudication) an employer may accept (1) the student's expired Form I-766 EAD (issued under category (c)(3)(i)(B)), (2) the USCIS receipt notice (Form I-797, Notice of Action) showing the timely filing of the STEM OPT extension application, and (3) an I-20 updated to show the Designated School Official has recommended the STEM OPT extension for a work authorization period beginning on the date after the expiration of the EAD.  This is the equivalent of an unexpired Employment Authorization Document under List A, #4 on the I-9 form.  This combination of documents satisfies the I-9 requirements for 180 days while the student's STEM OPT extension application is being adjudicated. 

  • When completing an I-9 form for an F-1 student with automatic employment authorization under the rule's cap-gap provision, an employer may accept (1) the student's expired Form I-766 EAD (issued under category (c)(3)(i)(B), or (c)(3)(i)(C)), (2) a cap-gap Form I-20, endorsed to show that the student's employment authorization is still valid, and (3) the USCIS receipt notice (Form I-797, Notice of Action) showing receipt of the H-1B petition.  This is the equivalent of an unexpired Employment Authorization Document under List A, #4 of the I-9 form.  This combination of documents satisfies the I-9 requirements until September 30, or on the date of rejection, denial, or revocation of the petition. 

  • For an F-1 student who is eligible for an automatic extension of employment authorization under the rule's cap-gap provision, the student's Designated School Official will issue a cap-gap I-20 which will indicate on page 3 that the student's employment authorization has been extended and the effective dates of the extension.