USW July 2008 Newsletter

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ESTA is a web-based program in which all nationals or citizens of VWP countries, including children, regardless of age, will be required to receive an electronic travel authorization prior to boarding a U.S. bound carrier. ESTA approval only authorizes a VWP traveler to board the carrier; U.S. Customs and Border Protection (CBP) officers will still make admissibility determinations at the time of entry to the U.S. Additionally, the ESTA is not a visa and individuals traveling on valid visas will not be required to apply for an ESTA.

DHS suggests ESTA applications be submitted no less than 72 hours prior to travel. Applications will be submitted online at www.esta.cbp.dhs.gov. Specific travel plans are not required to complete the ESTA but the VWP traveler must be prepared to provide biographical data including name, birth date, and passport information as well as answer eligibility questions regarding arrests, convictions, communicable diseases, past history of visa revocation, deportation, etc.

In most cases, ESTA will provide an almost immediate response of “Authorization Approved”, “Authorization Pending”, or “Authorization Denied”. Applications that are approved will be valid for a period of 2 years or until the applicant’s passport expires, whichever comes first. Pending applications will receive a final response within 72 hours. Those whose applications are denied will be referred to the U.S. Department of State to apply for a visa at a U.S. Consulate in order to travel to the U.S. Once ESTA becomes mandatory, travelers that have not received ESTA approval may be denied boarding, experience processing delays or be denied admission to the U.S.

Additional information about the new ESTA program is available through an FAQ or for more information on the official ESTA Fact Sheet.

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Among other things, the supplemental Q&A notes that on April 18, 2008, USCIS announced an e-mail notification process allowing a petitioner whose pending H-1B petition on behalf of an F-1 student was randomly selected to receive an H-1B visa number for fiscal year (FY) 2009 to request change of status in lieu of consular processing, as originally indicated on the petition. Because some FY 2009 H-1B petitions for these students already may have been approved for consular processing when USCIS published this e-mail notification process, the Q&A asks: Can the petitioner still request change of status? The answer is yes. The Q&A states that the petitioner should send an e-mail to the USCIS service center that issued the approval, using the designated e-mail address (below). Such requests must include the H-1B receipt number, as well as the petitioner’s and the beneficiary’s names.

If the H-1B petition and change of status application are pending, the change of status request should be submitted to the center within 30 days of the receipt notice. In addition to including the receipt number and the name of the petitioner and beneficiary, the Q&A notes, the request also should include the beneficiary’s date of birth, I-94 (Arrival/Departure Record) number, and Student and Exchange Visitor Information System (SEVIS) number.
Separate e-mail addresses have been established for premium and non-premium processing cases:

Vermont Service Center
Premium processing cases: VSCPPCAPGAP.Vscppcapgap@dhs.gov
Non-premium cases: VSCNONPPCAPGAP.Vscnonppcapgap@dhs.gov

California Service Center
Premium processing cases: CSC.ppcapgap@dhs.gov
Non-premium cases: CSC.nonppcapgap@dhs.gov

The second supplemental Q&A is available here. The first supplemental Q&A is available as a PDF here.

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U.S. Citizenship and Immigration Services (USCIS) claims that 99.5 percent of all work-authorized employees queried through E-Verify were verified without receiving a mismatch notice (Tentative Non-Confirmation (TNC)) or having to take any type of corrective action. This statistic is at odds with the view of many immigration advocates. Angela Kelley, director of the Immigration Policy Center, has noted that “[a]lmost 10 percent of naturalized citizens have received notifications about some error in their data since many of them, after their naturalization, don’t notify the Social Security [Administration] of their new citizenship status.” The New York Times said in an editorial on May 12 that “the Social Security database is rotten with errors” and the system “could force millions of Americans to battle a computerized bureaucracy that tells them, unjustly, that they cannot work.” The editorial also cites “evidence of employers abusing E-Verify” by “forcing workers who are tentatively flagged as unauthorized to take pay cuts or work longer hours until they can clear their names.”

USCIS says that employees whose work authorization cannot be instantly verified may work with SSA or USCIS, as appropriate, to confirm their work authorization. USCIS estimates that one percent of all queried employees choose to contest an initial, tentative result from E-Verify, and only half of those who contest that result are ultimately found to be authorized.
A series of enhancements, intended to improve the accuracy of the system’s automatic confirmation processes, was recently announced. USCIS said the E-Verify system will begin to include naturalization data, noting that naturalized citizens who have not yet updated their records with the SSA are the largest category of work-authorized persons who initially face an SSA mismatch in E-Verify. A naturalized citizen who receives a citizenship mismatch with SSA may call USCIS to resolve the issue, in addition to the option of resolving the mismatch in person at any SSA field office.

E-Verify also will now include real-time arrival data from the Integrated Border Inspection System. This additional data source is expected to reduce the number of immigration status-related mismatches for newly arriving workers.

USCIS also plans to initiate citizenship status records information-sharing with SSA to further prevent mismatches from occurring. E-Verify also plans to use checks against Department of State passport records in the near future.
More than 64,000 employers nationally participate in E-Verify, with approximately 1,000 new enrollments weekly. E-Verify evolved from the Basic Pilot/Employment Eligibility Verification Program originally developed in 1997 and made available to employers as a Web-based system in 2004. USCIS operates the program in partnership with SSA.
Related notices are available here and here. Information on E-Verify and work authorization is available here.

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The proposed rule would further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

Canadian and Mexican citizens seeking temporary entry to the U.S. as professionals may come into the country as TN nonimmigrants under the North American Free Trade Agreement (NAFTA). TN status is available to Canadian and Mexican citizens with a minimum of a bachelor’s degree, or appropriate professional credentials, who work in professions listed in Appendix 1603.D.1 to Annex 1603 of the NAFTA and under DHS regulations at 8 CFR 214.6(c). Eligible TN professions include, but are not limited to, accountants, engineers, attorneys, pharmacists, scientists, and teachers.
USCIS said the rule is intended to ease administrative burdens and costs on TN nonimmigrants and will benefit U.S. employers. The proposed changes also would apply to spouses and unmarried, minor children of TN nonimmigrants in their corresponding nonimmigrant classifications as NAFTA dependents.

Alliance of Business Immigration Lawyers members have observed that the rule would lessen the burden on TNs who are in the permanent residence process who may fear difficulties in extending their TN status, which must be temporary, ending “at a predictable time.” This was not a problem when TN employers could time the filing of the immigrant petition to coincide with the foreign worker’s permanent residence application. This is no longer possible: immigrant petitions must now be filed within 180 days of approval of the labor certification under the Department of Labor’s “Anti-Fraud” rule. The additional two years allowable as a TN under this proposed rule will allow more “elbow room” to file all critical phases of the process without the needing to extend the TN stay, ABIL notes. However, the benefits could be undermined by the halt of concurrent I-140 and I-485 filing because this will add to the time required for permanent residence processing.
The NPRM is available at http://edocket.access.gpo.gov/2008/pdf/E8-10343.pdf. Persons wishing to comment may access the Federal e-Rulemaking Portal and follow the instructions for submitting comments. USCIS will accept public comments until June 9, 2008.

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