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DHS Rules, Programs Revealed Amid Immigration Reform Talks
 

By Roy Maurer  2/6/2013
 
 

While the framework for a comprehensive overhaul to the nation’s immigration laws has captured the attention of lawmakers, the media and the public, the federal agencies charged with administering the current immigration system are keeping busy in 2013 implementing employment-based regulations and programs.

Since the start of 2013, the Department of Homeland Security’s (DHS) immigration agencies— U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE)—have proceeded with regulatory plans and program initiatives, all the while enhancing immigration services and sharpening enforcement.

In the department’s regulatory agenda for 2013, USCIS proposed regulatory changes covering certain high-skilled foreign guest workers and immigrants as well as guest workers’ dependent spouses.

The agency has announced its intention to develop policy regarding precedential decisions, continue educating agency employees about startup businesses’ visa needs, and expand programs aimed at encouraging immigrants to invest in businesses in the United States.

Additionally, in an ongoing effort to bring USCIS closer to realizing its goal of complete web-based immigration services, the agency recently rolled out the first component of an electronic, centralized policy manual, an E-Verify search tool and new features of its electronic immigration benefits system (USCIS ELIS).

Not to be outdone by its sister agency, ICE announced a proposed rule that would clarify employers’ Form I-9 violations, a rule change extending student visa holders’ post-graduation employment, a campaign to effect greater employer participation in the public-private program established to foster compliance with employment eligibility verification requirements, and a continued focus on employer I-9 audits.

USCIS Proposed Changes

In a Jan. 15, 2013, teleconference, USCIS Director Alejandro Mayorkas said the agency may hold back on planned initiatives for 2013 because of the extra workload brought on by the Deferred Action for Childhood Arrivals process and in anticipation of comprehensive immigration reform.

But the agency is still working on new initiatives, including the unveiling of a new Regulatory Affairs Division with the goal of issuing more regulations more frequently.

In its regulatory agenda for 2013, the agency has proposed to amend its regulations to improve the programs serving E-3 guest workers from Australia, H-1B1 guest workers from Chile and Singapore, and the EB-1 immigrant classification for outstanding professors and researchers. “The regulatory changes to these categories would significantly improve procedures to more effectively encourage and facilitate the retention of these high-skilled workers in the United States,” the agency said.

The H-1B1 and E-3 portions of the proposed rule would extend the period of employment authorization permitted while requests for extension of these visas are pending.

The EB-1 portion, the DHS added, would permit petitioners to submit comparable evidence of achievements that are not currently listed in the regulatory criteria in order to prove that the EB-1 professor or researcher is recognized internationally as outstanding in his or her academic field.

USCIS will be issuing a proposed rule to grant work authorization to H-4 dependent spouses of H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission in the U.S.

“Allowing the eligible class of H-4 dependent spouses to work encourages professionals with high-demand skills to remain in the country and helps spur the innovation and growth of U.S. companies,” USCIS said.

USCIS announced changes to its Administrative Appeals Office (AAO) “intended to streamline the existing processes for filing motions and appeals and [to] reduce delays in the review and appellate process.”

In the Jan. 15 teleconference, Mayorkas said the agency intends to certify more AAO cases as precedential and publish precedent decisions to clarify adjudication issues. AAO issued only one precedential decision in 2012 and two such decisions in 2010. Prior to that, USCIS had gone 12 years without issuing a single binding AAO decision.

Focus on Entrepreneurs and Investors to Continue

The USCIS Entrepreneurs in Residence (EIR) initiative marked a milestone in late 2012 with the launch of its Entrepreneur Pathways online resource center aimed at helping foreign entrepreneurs who want to start a business in the United States navigate the immigration process. The agency also noted that, as part of the EIR program, it has developed and implemented training for USCIS adjudicators, modified its requests for evidence, and developed a plan to hold quarterly engagements with the entrepreneurial community.

Also in late 2012, USCIS announced the establishment of a central office in Washington, D.C., charged with administering the EB-5 immigrant investor visa program. The office is the most noteworthy aspect of a reallocation of resources to improve the efficiency of the EB-5 application process, which includes the assignment of a new chief of immigrant investor programs and dozens of staff members specially trained to adjudicate EB-5 applications.

Mayorkas expressed his hope that the processing times for applications will be reduced to three to four months from the current eight to 10 months.

The EB-5 program grants a green card to an immigrant who invests $1 million—or $500,000 in certain situations—in a U.S. commercial enterprise that creates at least 10 full-time jobs for U.S. workers. Immigrants also can invest in a regional center that collects investments from various sources for a project and under which jobs indirectly created by the immigrant’s investment are counted toward the requirements of the visa.

According to USCIS, the program has created at least 49,300 jobs and generated over $6.8 billion in investments since the program’s inception in 1990 through the end of fiscal year 2012. There currently are 213 regional centers in 45 states as well as the District of Columbia and Guam.

Migration to Web-Based Services

USCIS is proceeding with its migration from a paper-based, nonintegrated system to an electronic, centralized case management environment for benefits processing.

The agency began the transition toward an online, centralized manual of immigration policies by releasing the first volume of the new USCIS Policy Manual, covering citizenship and naturalization.

The complete USCIS Policy Manual will include several volumes, each pertaining to the different areas of immigration benefits the agency administers, such as guest worker visas, employment-based immigrants, employment authorization and identity documents. The new manual will ultimately replace USCIS’ current Adjudicators Field Manual (AFM) and the current USCIS Immigration Policy Memoranda website.

The aim of this transition to a centralized manual is to eliminate the confusion that has been created by the use of both the AFM and numerous memoranda issued by USCIS leaders on a range of issues.

“We commend USCIS for the launch of this important effort to streamline and modernize the U.S. immigration system,” said American Council on International Personnel (ACIP) Executive Director Lynn Shotwell. “One central repository for immigration policies should allow U.S. employers to spend less time deciphering complicated laws and regulations, and more time growing their businesses and driving job creation,” she said in a press release.

Mayorkas said the new policy manual was born in response to customer complaints that consistency and predictability were lacking in USCIS decision-making, which led to a “top-to-bottom review” of its policies.

“The manual will be one single, encyclopedic resource that will reflect what the agency’s policy position is,” he said, and USCIS will no longer rely on “a collection of different memoranda.”

“While the AFM and policy memos provide helpful guidance, it can be difficult for employers to know where to find the most current guidance or to know what guidance is controlling,” said ACIP’s Manager of Agency Liaison Justin Storch. “To that end, the streamlining planned in the policy manual is very important. Once the policy manual is fully implemented, we expect that it will be much easier for employers to know what the law is and how it is being interpreted at the time they plan to file their petitions,” he told SHRM Online.

USCIS also recently announced the launch of the E-Verify Employers Search Tool. This online, user-friendly interface allows individuals to search for and view profiles of employers currently enrolled in and actively using the E-Verify program.

It includes the capability to filter, sort and export employer results and replaces the lists of E-Verify employers and federal contractors that previously appeared on the E-Verify website.

Improving USCIS services and access to its customers and stakeholders is one important priority for 2013, Mayorkas said. To that end, the agency launched new features for its electronic immigration system, known as USCIS ELIS. Beginning on Jan. 14, 2013, new USCIS ELIS features include significant improvements to the way attorneys and accredited representatives electronically interact with clients, the agency said.

Future enhancements to the system will add form types and functions, gradually expanding to cover most USCIS immigration benefits, the agency said.

ICE Promises Guidance on I-9 Violations, E-Verify Participation

In the DHS regulatory agenda for 2013, ICE proposed to amend its regulations clarifying certain Form I-9 paperwork failures and violations. The proposed rule would define a substantive violation and a technical or procedural failure. The proposed rule further would revise the current regulations that delineate the circumstances in which an employer may be subject to penalties for substantive violations, or may not be subject to penalties for technical or procedural failures, due to good-faith compliance.

“The desire for ICE to rely on an updated I-9 regulatory framework that reflects current I-9 realities is commendable and welcomed,” said Ann Cun, immigration attorney and counsel for LawLogix Group, a provider of electronic I-9 compliance and immigration case management software.

“Employers have been eagerly awaiting clarification from DHS on I-9 regulations just as they have been eagerly waiting for the finalized Form I-9 to be published,” Cun told SHRM Online.

However, much of the discussion is still in its early drafting stages, she said. “We’ll have a better barometer from which to gauge employer reactions after DHS puts pen to paper.” 

DHS Secretary Janet Napolitano stressed before Congress in 2012 that worksite enforcement efforts will remain a primary DHS objective in 2013 through prosecutions of criminal employer violators, Form I-9 inspections, civil fines and debarment, as well as education and compliance tools.

Employer audits and the civil penalties imposed by ICE over the past few years have skyrocketed, reaching the highest numbers yet this past fiscal year.

Since January 2009, ICE has audited more than 8,079 employers suspected of knowingly hiring workers unauthorized to work in the United States, debarred 726 companies and individuals, and imposed more than $87.9 million in financial sanctions.

The agency announced it would continue to push the involvement of employers in the ICE Mutual Agreement between Government and Employers (IMAGE) program, under which employers voluntarily agree to enroll in E-Verify, conduct self-audits of their I-9s and submit to an I-9 inspection by ICE.

Roy Maurer is an online editor/manager for SHRM.

Follow him at @SHRMRoy

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