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Department of State published information on the 2009 Diversity Visa (DV) lottery

The Department of State has announced the 2009 Diversity Visa (DV). This program provides up to 55,000 immigrant visas to individuals and their family members from selected countries that are underrepresented in the United States.  Among other requirements, applicants must satisfy minimum educational or employment criteria and follow the strict application procedures. Eligible applicants will be randomly selected. Click here for more information on this program. [Top]

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Department of Homeland Security's new "no-match" rule is indefinitely suspended

A federal judge suspended the Department of Homeland Security's new "no-match" rule, which was to have gone into effect September 14, 2007. Therefore, employers should conduct business as usual for now and contact our office for a consultation if questions about recordkeeping or other immigration matters arise. [Top]

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Department of Homeland Security issues new regulation on the no-match letter and “constructive knowledge” but Federal court enjoins implementation

The Department of Homeland Security recently issued a final regulation outlining the employer’s “safe harbor” for I-9 investigations. It was set to go into effect on September 14, 2007. However, the Federal District Court of Northern California issued a restraining order preventing the government from implementing the rule. Therefore, the rule is not yet in effect.

We still would like our clients to be aware of the potential new regulation and to be prepared for it. Below is an explanation of the regulation, what it means to employers, and how employers can start planning policies and procedures that conform with the regulation and prevent discriminatory practices, in the event the rule is implemented.

In short, the rule states the employer that takes certain steps upon receipt of a no-match letter from the Social Security Administration (SSA) or Department of Homeland Security (DHS) is protected from having “constructive knowledge” that an employee is unauthorized to work. Please consult with our staff attorneys for more detailed information.

Note: This information only applies when the employer receives notice from the government, not when the employee receives such notice.

I. New Rule

The new regulation provides the employer with a safe harbor upon receipt of a government notice concerning SSN discrepancies. This safe harbor allows the employer to continue employing the worker in question (barring other employment authorization issues); no sanctions will be brought against the employer if timely steps are taken to correct the discrepancy. These steps are outlined below. Be sure to keep detailed records of any notices received and any actions taken. And be sure to contact this office immediately to assist you with such notices.

Letter from the Social Security Administration

If an employer receives a no-match letter from the SSA for one or more of its employees, the following progressive steps will help to facilitate safe harbor under the new regulations:

• Look for minor administrative error. Check employer records for the discrepancy. If the problem is caused by a typo or other minor administrative error, correct and notify SSA. Employer must also VERIFY with SSA that the name/number are correct. This must be done within 30 days of the notice.

• Confirm with employee. If the discrepancy is not merely a typo, request employee to confirm name/number. If employee says the name or number is incorrect, employer must correct, inform, verify and make a record. If employee says the information is correct, however, employer must promptly request employee to resolve discrepancy. Employer must resolve within 90 days of the written notice from SSA.

• Perform re-verification. If issue is not resolved within 90 days, perform re-verification within 3 days after 90 th day. See New I-9 procedure below.

• Terminate employee. If the three above steps are closely followed and the employer is unable to verify work authorization, the employee must be terminated. To do otherwise will put the employer at risk of sanctions based on constructive knowledge (see “Constructive Knowledge” section below).

Letter from the Department of Homeland Security (DHS)

If an employer receives a notice from the DHS indicating an employment authorization discrepancy of an employee, the following progressive steps will help facilitate safe harbor under the new regulations:

• Contact DHS. Employer should contact the local DHS office per the instructions in the letter. This must be done within 30 days of the notice.

• Resolve as directed. If not resolved in initial telephone inquiry, DHS will provide direction as to how to resolve the discrepancy. Employer should closely follow those instructions and must resolve the issue within 90 days of the written notice from DHS.

• Perform re-verification. If the discrepancy is not resolved within 90 days, employer must perform re-verification within 3 days after 90 th day (see New I-9 reverification procedure below).

• Terminate employee. If the three above steps are closely followed and the employer is unable to verify work authorization, the employee must be terminated. To do otherwise will put the employer at risk of sanctions based on constructive knowledge (see “Constructive Knowledge” section below).

II. New I-9 Procedure

When performing a re-verification after receipt of one of the above-mentioned notices, the following procedure must now be followed:

• Employee completes section I and employer completes section II within 93 days of receipt of the written notice.

• Employer cannot accept identification documents referenced in the written notice or any document that contains a disputed SSN.

• Employee must present an identification document listed on the backside of the I-9 form that contains a photograph to establish identity.

• Employer must retain the new I-9 form with old I-9 form.

III. Constructive Knowledge

The employer will be deemed by the immigration service to have constructive knowledge that an employee is unauthorized to work for any of the following reasons:

• I-9 improperly completed.

• Reckless or wanton disregard for the consequence of permitting another individual to introduce an illegal worker to the workplace. Be sure that anyone involved in supplying or contract labor complies with the I-9 requirements.

• Fails to take reasonable steps after receiving information from either the employee or the government that the individual is not authorized to work. This might be, for example, an employee’s request to file for labor certification, a notice from the SSA of a no-match, or a notice from DHS that I-9 documents belongs to another person.

IV. Discrimination

As a reminder, employers must take care not to discriminate when dealing with employment authorization. Employers cannot infer someone is unauthorized based on appearance or accent. Also, employers cannot request more or different identification documents than those required by INA § 274A(b) or refuse to honor documents that appear to be genuine. However, a questionable document referenced in any written notice cannot be accepted.

Receipt of a no-match letter does not necessarily indicate the employee is not authorized to work. Therefore, the employer should keep detailed records of notices received and steps taken when this issue arises. Further, the employer should include information about this new regulation in its policies and procedures documentation. Preparation and documentation for handling government issues of potential employment authorization discrepancies should be part of the employer’s routine practice much like I-9 compliance has been for years. It need not be feared, but must be handled properly. Having a good policy in place based on the information we provided you will help ensure I-9 compliance under the new regulation. [Top]

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Employment-based visa numbers available until August 17, 2007

The Department of State, in concert with USCIS, has retracted its statement regarding unavailability of employment-based visas.  Visas are now available until August 17, 2007.  Eligible parties are urged to file for adjustment of status.

For more information, Click here.

For information on filing your Adjument of Status application, Click here. [Top]

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Rep. Lofgren Applauds Resolution of Visa Bulletin Debacle

July 17, 2007, Washington, D.C.: "Representative Zoe Lofgren (D-San Jose) issued the following statement in response to Secretary of Homeland Security Michael Chertoff’s planned announcement on adjustment of status applications: "The Secretary of Homeland Security in a phone call today informed me that a solution to the Visa Bulletin fiasco has been found. The Department of State will issue an August Visa Bulletin that permits the filing of adjustment of status applications through August 17, 2007, at the current fee level, which will be accepted through that date by the Department of Homeland Security. I’m pleased that a reasonable solution has been reached. I will continue to monitor the situation to ensure that both the Departments of State and Homeland Security follow through properly with this plan."" [Top]

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USCIS Reaches Fiscal Year 2008 H-1B Cap

In an Update issued by the U.S. Citizenship and Immigration Services (USCIS), the fiscal year 2008 H-1B cap was met on April 2, 2007, the first day for submitting petitions for H-1B classification. USCIS received approximately 150,000 H-1B petitions subject to the 65,000 cap. Therefore, USCIS regulations mandate random selection of petitions for adjudication in this scenario. The selection process will include all H-1B cap-subject petitions received on April 2, 2007 and April 3, 2007. Out of the 150,000+ H-1B cap-subject petitions, approximately 65,000 will be selected for processing, minus “carve outs” reserved for special cases. Any petition not selected will be returned with all filing fees.

All petitions must first be receipted before the random selection can take place. As such, USCIS indicates it will be several weeks before the selection process will go into effect. We will continue to closely monitor this situation and advise clients appropriately.

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January 2007 - Business TN Magazine

Once again, for the fourth year in a row Linda Rose is named among the top Lawyers in the State of Tennessee. Business TN magazine surveys lawyers every year to indentify the top lawyers in the state. Linda Rose is named one of the top lawyers in the state for her work in the field of immigration law. Click here to view the story. [Top]

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Western Hemisphere Travel Initiative

The Departments of State and Homeland Security recently announced and submitted for public comment the air and sea phase of the Western Hemisphere Travel Initiative to secure and expedite travel. The Western Hemisphere Travel Initiative will require all U.S. citizens, Canadian citizens, citizens of the British Overseas Territory of Bermuda, and Mexican citizens, to have a passport or other designated secure document to enter or re-enter the United States at airports and seaports by January 8, 2007.

Therefore, your U.S. citizen employees who travel regularly to Canada will now need a passport. U.S. passport applications can be obtained from the United States Department of State website, found at: www.travel.state.gov/passport.
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H-1B Shortage

Due to the unreasonable H-1B numerical limit set by Congress, there are no H-1B visas available until October 1, 2007, except for university positions. This year, the H-1B limit was first reached on May 26, 2006, 16 months before the end of the next fiscal year. The American Immigration Lawyers Association is organizing U.S. companies to “sign on” to a letter that will be sent to each member of Congress urging an increase in the H-1B quota. If your company would lend its name to the letter to Congress, chances of raising the H cap back to a more realistic level would improve. [Top]

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July 2006 - Linda Rose published news article in The Tennessean

Click here to view the article written by Linda Rose published in the July 13, 2006 edition of The Tennessean newspaper. [Top]

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July 2006 - Linda Rose published article in the Tennessean

The following article written by Linda Rose was published in the July 13, 2006 edition of The Tennessean Newspaper.

So-Called “Path to Citizenship” is a Rocky Road

by Linda Rose, Esq.

Rose Immigration Law Firm, PLC

Of course I’m for comprehensive immigration reform – including a temporary worker program and earned adjustment (permanent residence) for long-term undocumented foreigners. I’m an immigration attorney. My work, my passion, is helping these individuals and their employers negotiate the labyrinth of immigration rules and procedures.

There’s a lot of opposition to comprehensive immigration reform. And admittedly there are two sides to the issue. But what bothers me is the way the media have coined the phrase “path to citizenship.” Call it that and just about anybody would be against it. Why should we give away our coveted U.S. citizenship to long-term illegals?

Well, the truth is we’re not giving it away and it’s no pathway indeed. Citizenship is a rough, rocky, difficult process reserved only for the most deserving. True, we encourage foreigners to eventually become citizens of this country – we want them to become citizens. But it’s not a freebie. It comes with time, study, and a good, clean record. Here’s how it works.

Only Lawful Permanent Residents (green card holders) can apply to become a citizen. A foreigner becomes a lawful permanent resident basically through one of three methods: a qualifying family relationship (example: spouse of a U.S. citizen), a job offer from a qualified U.S. employer (after the labor market has been tested for the unavailability of U.S. workers), and special laws. Special laws is where comprehensive immigration reform comes in. Congress is proposing a special law that would give certain long-term undocumented foreigners lawful status. The special law would probably only apply to persons who have been in this country in an undocumented status for more than five years, who have worked and contributed to the community for at least three years, who have paid all back income taxes, who have a clean criminal record, and who have learned to speak our language. If they meet these criteria, they will qualify to become green card holders. This means they can live and work in the U.S. legally and permanently. They can’t vote, they can’t travel outside the U.S. for extensive periods of time, they can’t hold certain government jobs. But they can live here legally, continue to pay taxes, drive cars, get married, go to school, and function as law-abiding residents. The process of becoming a resident can cost thousands of dollars.

After they have been here for five years as Legal Permanent Residents, they then have the right to apply for citizenship. This, too, has a hefty government processing fee of several hundred dollars and the standards are high. Applicants for citizenship have to demonstrate they have the ability to read, speak, and write in English. They have to demonstrate a basic understanding of our history and government (QUICK: Name the 13 original colonies! Can’t? Then you don’t qualify for U.S. citizenship.). And they have to prove a scrupulous record of good moral character for at least (at least) the past five years (the government can delve as far back as it wants, however). Then, there’s the waiting . . . and waiting . . . and waiting . . . . I’ve had clients pass the interview and then wait years for an appointment to be sworn in as a U.S. citizen.

And if you’d like to have a feel-good cry sometime, go to the Federal Courthouse and observe a naturalization swearing-in ceremony. You can call the U.S. Clerk of Court for the schedule. The ceremonies are very touching; the words of the Federal judge always meaningful; the sight of a hundred or so people from around the world – surrounded by friends and family -- swearing their allegiance to this country will touch your heart.

So the next time you read an article about comprehensive immigration reform and the proposed law is couched in terms of “path to citizenship,” read between the lines. Comprehensive immigration reform does not place undocumented individuals on the path to citizenship. It gives them the same opportunity any other lawful permanent resident gets – a chance to be considered for U.S. citizenship, if they can endure the challenge and pass the test. [Top]

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Comprehensive Immigration Reform Passes Senate

On May 25, 2006, a bipartisan coalition of Senators voted 62 to 36 to pass a compromise version of comprehensive immigration reform. “This historic action by the Senate creates the possibility that our 20th century immigration laws may finally be reformed to meet the needs of a 21st century America,” stated Deborah Notkin, president of the Association. S. 2611, the Comprehensive Immigration Reform Act of 2006, contains many positive and very important provisions, such as a path to permanent legal status for most of the current undocumented population; a new temporary worker program with labor protections and a path to permanent status; family- and employment-based visa backlog relief; important reforms to the agricultural worker program; significant reforms to the high-skilled immigration programs; and relief for undocumented high school graduates seeking higher education (DREAM Act). [Top]

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April 2003 - Professors sue INS over Citizenship

• Rose Immigration Law Firm leads the way in naturalization cases. Here is an article from the Nashville City Paper. [Top]

Dowload Article [PDF]

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October 2002 - Embrace new Americans in our immigrant community

• An opinion editorial by Linda Rose in the Tennessean newspaper. [Top]

Dowload Article [PDF]