USW January 2009 Newsletter

Federal contractors and subcontractors will be required to begin using U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system starting January 15, 2009, to verify their employees’ eligibility to work legally in the United States. In a final rule, the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council amended the Federal Acquisition Regulation (FAR) to reflect this change.

The new rule implements Executive Order 12989, as amended by President George W. Bush on June 6, 2008, directing federal agencies to require that federal contractors agree to electronically verify the employment eligibility of their employees. The amended Executive Order reinforces the policy, first announced in 1996, that the federal government does business only with companies that have a workforce that is authorized to work in the U.S. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S.

Federal contracts awarded and solicitations issued after January 15, 2009, will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They also will need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to work in the U.S.

The final rule reflects some changes from the proposed rule. The changes are intended to lighten the burden on small businesses that decide to accept federal contracts, and to provide contractors with flexible means of complying with the basic requirement that all persons working on federal contracts be electronically verified.

More than 92,000 employers currently use E-Verify, an Internet-based system operated by the DHS in partnership with the Social Security Administration that allows participating employers to verify the employment eligibility of their employees electronically. During fiscal year 2008, more than 6.6 million employment verification queries were run through the system, representing one out of every eight people hired in the U.S. Approximately 96.1 percent of all cases queried through E-Verify are found to be employment-authorized, and individuals who are not immediately cleared are given the opportunity to correct their records, USCIS said.

Related USCIS announcement
http://www.uscis.gov/files/article/FAR_13Nov08.pdf

USCIS “frequently asked questions” sheet
http://www.uscis.gov/files/article/FAR_FAQ_13nov08.pdf

Jason Kenney, Canada’s Minister of Citizenship, Immigration and Multiculturalism, announced on November 28, 2008, that retroactive to February 27, 2008, the “Action Plan for Faster Immigration” includes issuing instructions to visa officers reviewing new federal skilled worker applications to process those from candidates who:

• include an offer of arranged employment; or
• are from a foreign national living legally in Canada for one year as a temporary foreign worker or international student; or
• are from a skilled worker who has at least one year of experience under one or more of the 38 occupations listed at http://www.cic.gc.ca/eligible.

The list of 38 occupations was developed after consultations with the provinces and territories, business, labor, and other stakeholders. New federal skilled worker applications that do not meet the eligibility criteria outlined above will not be processed, and the application fee will be refunded. Citizenship and Immigration Canada (CIC) said in a statement that this effort, along with funds set aside in the 2008 budget to improve the immigration system, “will stop the backlog from growing and will start to draw it down.”
“The eligibility criteria apply only to new federal skilled worker applicants and will not affect Canada’s family reunification or refugee protection goals,” Minister Kenney said. He noted that applicants who are not eligible for the federal skilled worker category may qualify under another category, such as the Provincial Nominee Program, or as temporary foreign workers, which could then put them on a path to permanent residence through the new Canadian Experience Class.

U.S. Citizenship and Immigration Services (USCIS) announced that it has revised significantly the special immigrant and nonimmigrant (R-1) religious worker visa classification regulations. USCIS said the final rule “will ensure the integrity of the religious worker program by establishing a requirement that employers submit a formal petition for temporary religious workers, and by providing for increased inspections, evaluations, verifications, and compliance reviews of religious organizations.” The rule “also fulfills the recent Congressional mandate to issue final regulations to eliminate or reduce fraud in the religious worker program.”

Effective November 17, 2008, the Department of Homeland Security has added the Czech Republic, Estonia, Hungary, Latvia, Lithuania, the Republic of Korea, and the Slovak Republic to the list of countries authorized to participate in the Visa Waiver Program (VWP).

Citizens and eligible nationals of VWP countries may apply for admission at a U.S. port of entry as nonimmigrants for up to 90 days for business or pleasure without obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. The designated countries in the VWP include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom (defined for VWP purposes as England, Scotland, Wales, Northern Ireland, the Channel Islands and the Isle of Man).

U.S. Customs and Border Protection (CBP) also announced on November 13, 2008, that beginning January 12, 2009, all VWP nonimmigrants traveling to the U.S. must obtain an approved travel authorization from the Department’s Electronic System for Travel Authorization (Site: ESTA). To comply with ESTA, VWP travelers must provide electronically to CBP the information currently collected on the I-94W Nonimmigrant Alien Arrival/Departure (Form I-94W) through the CBP ESTA Web site and receive authorization to travel before embarking on travel to the U.S.

The final rule adding the VWP countries is available as a PDF. The CBP notice about obtaining travel authorization is available here.

U.S. Citizenship and Immigration Services (USCIS) has announced (PDF) an extension to the re-registration period for nationals of Nicaragua and Honduras who have been granted temporary protected status (TPS) and are now eligible to re-register and maintain their status an additional 18 months. Initially, the 60-day re-registration period for nationals of Honduras and Nicaragua began October 1, 2008, and ended on December 1, 2008. The re-registration period is being extended through December 30, 2008, because of tropical storm activity in the region.

Additionally, USCIS has automatically extended the validity of employment authorization documents (EADs) for eligible Honduran and Nicaraguan TPS beneficiaries for 6 months, through July 5, 2009. USCIS said this is intended to allow sufficient time for eligible TPS beneficiaries to re-register and receive an EAD without any lapse in employment authorization.

The Department of Homeland Security (DHS) announced in October 2008 that the TPS designations of Honduras and Nicaragua were extended through July 5, 2010. The extension will make those who have already been granted TPS eligible to re-register and maintain their status for an additional 18 months.
Nicaraguan and Honduran TPS beneficiaries are strongly encouraged to apply as soon as possible within the registration period that now ends December 30, 2008.
There are approximately 3,500 nationals of Nicaragua and 70,000 nationals of Honduras (and people having no nationality who last habitually resided in Honduras and Nicaragua) eligible for TPS re-registration. TPS does not apply to Nicaraguan or Honduran nationals who entered the U.S. after Dec. 30, 1998.

TPS beneficiaries must submit an Application for Temporary Protected Status, Form I-821, without the application fee and the Application for Employment Authorization, Form I-765, to re-register for TPS. A separate biometric service fee, or a fee waiver request, must be submitted by re-registrants 14-years of age and older. If the applicant is only seeking to re-register for TPS and is not seeking an extension of employment authorization, he or she must submit the I-765 for data-gathering purposes only and is not required to submit the I-765 filing fee. All applicants seeking an extension of employment authorization through July 5, 2010, must submit the required application filing fee with the I-765 or a fee waiver request with proper documentation.

USCIS published a related notice in the Federal Register on November 24, 2008, available on Honduras (PDF) and on Nicaragua (PDF).