However, USCIS recently announced that effective May 19, 2013, the online payment of the USCIS Immigrant Fee has been transferred to its Electronic Immigration System (USCIS ELIS). Customers must now pay the $165 USCIS Immigrant Fee using USCIS ELIS once they receive their immigrant visa package from the Department of State but before they depart for the United States.

USCIS ELIS is an online account-based system through which, customers can file and track the status of their benefit applications, receive electronic notification of decisions, and receive real-time case status updates. On May 22, 2012, USCIS launched the foundational release of this new system as part of an initiative to move from a paper-based model to a secure, online environment.  The system currently allows for electronic filing of select categories of Form, I-539, Application to Extend or Change Nonimmigrant Status. USCIS plans to gradually expand USCIS ELIS to include more features, functions, and form types.

Visit the USCIS Immigrant Fee page for more information about using USCIS ELIS to pay the USCIS Immigrant Fee.

Sample I-94A Form Courtesy of USCIS

Today, U.S. Customs and Border Protection (CBP) began implementation of the automated version of Form I-94, Arrival/Departure Record, at air and sea ports of entry, which by week’s end will include Charlotte Douglas International Airport in North Carolina, Miami and Orlando International Airports in Florida, McCarran International Airport in Las Vegas, Chicago O’Hare International Airport, and George Bush Intercontinental Airport in Houston. The rollout will continue across the nation through May 21, and will include air and sea ports of entry that support international arrivals.

What is a Form I-94?

Form I-94 is the Arrival/Departure Record issued by CBP to foreign nationals who are, among other things:

• admitted to the U.S.;
• extending, changing or adjusting their status while in the U.S.; or,
• granted parole into the United States.

A CBP officer generally attaches the I-94 to the non-immigrant visitor’s passport upon U.S. entry.

What will change with automation of Form I-94?

With the new automated process,foreign travelers admitted into the United States will no longer be issued Form I‑94 on paper. Instead a CBP officer will stamp the travel document of each arriving non-immigrant traveler. The admission stamp will show the date of admission, class of admission, and the date that the traveler is admitted until. The traveler will also be provided with an instruction sheet on how to access their electronic Form I-94 at www.cbp.gov/I94. From this website, they will be able print out their Form I-94 in paper format. Foreign visitors will continue to receive the paper Form I-94 until the automated process arrives at their port of entry.

Foreign travelers may need their Form I-94 when requesting certain U.S. Citizenship and Immigration Services (USCIS) benefits, or when applying for public benefits from other government agencies (e.g. Driver’s License). Accordingly, in an effort to avoid disruption in the adjudication of benefit requests as a result of Form I-94 automation, USCIS has begun the process of amending certain forms so as to request:

• The admission number from Form I-94; and/or
• Passport information, including passport number, country of issuance and expiration date; and
• Travel Document information, including Travel Document number, country of issuance and expiration date.

USCIS will accept a printout of the electronic Form I-94 obtained from CBP’s website (www.cbp.gov/I94) as evidence of lawful admission in support of a benefit request. In lieu of submitting the electronic Form I-94 in paper format, USCIS will also accept photocopies of the passport pages that contain the individual’s biographical information, visa and admission stamp.

Will travelers need to do anything differently when exiting the U.S.?

Travelers issued a paper Form I-94 should continue surrender it to the commercial carrier or CBP upon departure. The departure will thus be recorded electronically with manifest information provided by the carrier or by CBP. For travelers that do not receive a paper Form I-94 due to I-94 automation, CBP will record their departure by using manifest information obtained from the carrier and the electronically created record.

FY 2014 starts on October 1, 2014, and therefore all petitions subject to the cap must indicate a start date of between October 1, 2014 and September 31, 2015. However, pursuant to DHS regulations, petitions for H-1B workers cannot be filed earlier than six months prior to the employment start date. Accordingly, petitions filed on April 1, 2014 must indicate an employment start dateof October 1, 2014.

The cap for FY 2014 will be approximately 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000. USCIS will monitor the number of petitions received and notify the public of the date on which the numerical limit of the H‑1B cap has been met. This date is known as the final receipt date. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted, and not the date that the petition is postmarked.

If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit, and will reject those petitions that are not selected, as well as petitions received after the final receipt date. The lottery system was last used in April 2008. However, USCIS has indicated it anticipates receiving petitions in excess of the FY 2014 H-1B cap between April 1, 2013 and April 5, 2013.

An important consideration for employers is that the H-1B petition must include a certified Department of Labor (DOL) Form ETA 9035, Labor Condition Attestation (LCA) at the time of filing the petition. Preparation of this form takes planning and if it has not already been done, it must be done immediately if an employer plans to file an H-1B petition on April 1, 2013.

USCIS has also indicated that due to the historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first 5 business days of the filing season;it has temporarily adjusted its current premium processing practice to facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will delay premium processing for H-1B cap cases until April 15, 2013.

Cap-Exempt Petitions

Some H-1B petitions for H-1B employment are exempt from the annual cap. These include:

• Petitions for work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations;
• Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until Dec. 31, 2014;
• Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. These include petitions to:
  • Extend the amount of time a current H-1B worker may remain in the United States.
  • Change the terms of employment for current H-1B workers.
  • Allow current H-1B workers to change employers.
  • Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, in order to avoid delays in processing and possible requests for evidence. For assistance you may contact our immigration attorneys at (239) 344-1177.

The search tool only includes those employers and federal contractors that are currently enrolled in E‑Verify and who have self-reported that their company has five or more employees. It is current as of December 15, 2012, and will be updated on a quarterly basis. Employers that terminate their E-Verify accounts will be subsequently removed from the search tool.

The search tool contains the following information:

• Business name: the name used during registration with E-Verify, which can be the legal name of the business or individual, a trade name, or abbreviation);
• Whether it has a Federal Contractor Identifier;
• Type of Federal Contractor Employee verification: whether all new hires or entire workforce;
• Employer city, state and ZIP code used at registration; and
• Workforce size:  only those employers who have five or more employees.

The search tool also includes the capability to filter the results, sort the ascending or descending order of the records displayed, and export the results to a comma -separated value (CSV) file. Filtering can be done by Employer Name, Federal Contractors, City, State or Zip Code.

The search tool does have its limitations. For one, since employers enrolled in E-Verify only provide a contact address and the address where the employer conducts E-Verify cases (regardless of how may company locations participate in E-Verify), not all business locations of an employer enrolled in E-Verify will necessarily be listed in the search tool results.

Additionally, since there are no required naming conventions when an employer enrolls in E-Verify, an employer may use its legal name,a trade name for public business purposes (e.g. fictitious name), or an abbreviation or a company name based on his or her location within the company. As a result, employers may not be found unless searched specifically by the name it used to enroll in E-Verify.

Furthermore, given that E-Verify does not currently collect any information on federal contracts (e.g. DUNS number, contract number, number of contracts held by a company or location, period of performance of a contract, and/or number of personnel on a contract, and whether they’re a subcontractor), even when a company is in the search tool database, it’s not possible to determine how many of its employees should be verified or which locations should be covered by that company.

For more Search Tool information check out the User Guide or the Questions and Answers.

USCIS processes approximately 36,000 immigrant visa packages each month. The new fee purportedly will allow USCIS to recover its costs of processing immigrant visas after immigrants arrive in the United States. Despite its establishment in 2010, USCIS has not previously collected the fee from immigrant visa holders applying for admission to the United States, because only recently have implementing procedures — in conjunction with DOS —been developed.

Immigrant visa holders, or other third parties on their behalf,will pay the new fee online (after they receive their visa package from DOS, but before they depart for the United States) by completing the USCIS intake page on Pay.gov and providing their U.S. checking account,debit or credit card information. DOS will provide applicants during their consular interview with specific information on how to submit payment. The implementation of this new fee is further detailed in a Federal Register notice scheduled for publication tomorrow.

Failure to pay the USCIS Immigrant Fee will not directly result in denial of admission to the United States as an immigrant or the loss of status as an alien lawfully admitted for permanent residence. However, USCIS will not issue a Permanent Resident Card (Form I-551) to an individual who is subject to the USCIS Immigrant Fee until the individual has paid the fee. A Permanent Resident Card serves as an immigrant’s proof of status and compliance with the alien registration requirements of the Immigration and Nationality Act. It is also evidence of the immigrant’s employment authorization in the United States, and is required in order to gain admission to the United States after temporary foreign travel.

Exempted from this new fee will be prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes for international adoptions. However, USCIS has indicated it will consider the cost of processing immigrant visas issued by the DOS for the Orphan and Hague process the next time there is an adjustment to the fee schedule.

For more information visit the USCIS Immigrant Fee webpage.

For RIDE participating states, the E-Verify system collects driver’s license information of employees who present a state-issued driver’s license as a “List B” document, verifies the data and advises the E‑Verify user of whether the submitted information matches with the MVA data or not. Where the system cannot match the data to DMV records it will issue a tentative nonconfirmation (TNC).

As with any E-Verify TNC, the employer is required to share the result with the employee, who has the option whether or not to contest the TNC. If the employee chooses to contest, the employer prints a referral letter, which provides directions to the employee on how to contest the TNC. This letter instructs the employee that he has eight days to contact E-Verify status verifiers to resolve the discrepancy. In the case of a TNC generated because of a RIDE mismatch, employees are instructed to call a USCIS status verifier and fax a copy of the driver’s license or state id provided to establish identity on Form I-9. The status verifier will then review the faxed copy of the document against the information in the MVA’s database. If the status verifier is unable to match the document, the case is placed in continuance and while MVA is contacted to determine whether it is a true mismatch or an error in the MVA database. Once the status verifier has researched the document, he/she enters a response which triggers an update to the case in E-Verify.

The RIDE program is intended to improve the accuracy and strengthen the integrity of the E-Verify system by enabling itto compare driver’s license data against state records when determining employees’ eligibility to work in the United States. Thus, RIDE enables E-Verify to confirm the authenticity of an additional identity document. Without RIDE, if an employee presented a driver’s license as proof of identity and a social security card as proof of employment authorization, E-Verify is only been able to confirm the validity of the social security card. With RIDE E-Verify employers are able to confirm the validity of both documents.

Photo matching is not currently part of the RIDE program, but may be added in the future.  Currently photo matching is available only for Form I-551 Permanent Resident Card, Form I-766 Employment Authorization Document and U.S. passports or passport cards.

On October 5, 2012, at the 26th Annual AILA Central Florida Fall Conference, Attorneys Tulio Suarez and Jennifer Deines spoke on “Balancing Immigration Employment Compliance Against Citizenship/National Origin Discrimination.”

Mr. Suarez began by noting that the current Administration and Congress have paid particular attention to immigration enforcement as a key national interest issue, and that as a result, this new enforcement environment has had far-reaching effects on employers and their hiring practices.

This increased tension in the enforcement of the IRCA has led to employers being fined for their unlawful hirings in an effort to bring them to compliance and make a public example of employers who are non-compliant. The Immigration Reform and Control Act of 1986 is enforced now by U.S Immigration and Customs Enforcement (ICE).Mr. Suarez explained that in setting the proposed fine, these federal agencies consider these five statutory factors:

1. Employer size
2. Employer good faith
3. Seriousness of the violation, taking into account whether the forms simply contained errors; whether important sections or attestations were incomplete; and, whether the requisite form and documents were retained at all
4. History of previous violations
5. Actual involvement of unauthorized aliens

In addition to civil fines, Mr. Suarez spoke about some of the criminal implications of immigration employment compliance. He indicated that ICE enforcement strategies include criminal investigations, particularly focused on employers involved in human trafficking, smuggling, and harboring of illegal aliens. These criminal behaviors have resulted in a significant increase in the number of criminal arrests in recent years. Statistics show that from 2004-2008 alone, there has been a dramatic increase from 176 arrests to 1,363.

In an effort for employers to protect themselves from civil or criminal issues, Mr. Suarez suggests that they establish an I-9 compliance plan that provides accurate, reliable and easy to implement guidance about documenting, supplementing and updating employee eligibility in a nondiscriminatory manner.

Guest Speaker, Attorney Jennifer Deines

As a trial attorney with the Office of Special Counsel for Immigration Related Unfair Employment Practices, Ms. Deines offered a practical overview of the prohibited conducts under the INA’s Anti-Discrimination Provision, and the possible outcomes and remedies of a charge. Pursuant to 8 U.S.C 1324b, these prohibited conducts are:

The enforcement of these prohibited conducts is based on either a charge-based investigation or a self-initiated one. A charge-based investigation is one in which the OSC investigates charges of discrimination filed by injured parties or their representative. A self-initiated investigation is one in which the OSC has authority to open an investigation based on reasonable belief that an employer has committed a violation. The following are the possible outcomes of a charge:

The remedies discussed by Ms. Deines were to hire or rehire, back pay, injunctive relief, and civil penalties.

E-Verify, a web-based service of the Department of Homeland Security and Social Security Administration, allows employers to electronically verify the employment authorization of new hires and avoid non-compliance. This system, along with the proposed I-9 Compliance Plan by Mr. Suarez, and the multiple resources available from the OSC to employers and potential employees are necessary considerations for employers in ensuring compliance and non-discriminatory hiring practices in immigration employment. For further information contact Mr. Suarez or the OSC office.

Mayorkas’s announcement is presented as an effort by his agency to improve the administration of the EB-5 Immigrant Investor program established by Congress in 1990. Mayorka acknowledges that the EB-5 program has grown exponentially in recent years as domestic project developers increasingly look to foreign investor capital to fund their projects, resulting in the injection of billions of dollars into the U.S. economy and the creation of tens of thousands of new U.S. jobs.

In recent years, USCIS has increasingly dedicated additional resources to the augment the size of the EB-5 adjudications team and has hired expert economists for the EB-5 program in an effort to ensure an appropriate level of staff and expertise to handle cases expeditiously.

Mayorkas’s announcement also heralds the future addition of two full-time attorneys with substantial transactional experience to the USCIS EB-5 program team, as well as the establishment of a special Review Board – consisting of two Supervisory Immigration Services Officers and one economist – which will review every recommended denial and will conduct in-person hearings where applicants will have the opportunity to discuss their cases prior to the rendering of any final adverse decision.

Mayorkas’s announcement is one of a number of initiatives the agency has announced in recent months to ameliorate the obstacles our current immigration system imposes on our country’s ability to attract foreign talent and investment. As was recently documented by a Cato Institute journal article, a bureaucratic process, high fees, frequent government audits, and low visa quotas have created substantial obstacles for highly educated foreign nationals to immigrate to the United States. The EB-5 program is thus often the only way for certain highly-skilled individuals to contribute their talents to the United States. Case in point, recently the Chicago Tribune reported on an Iranian Kurd who immigrated to Illinois using the EB-5 visa program to invest in investing in elderly care center in Aurora, Illinois.

The legislation, which was sponsored by U.S. Representative Howard Berman (D-Calif.), amends the existing treaty to allow for E-2 investor visas, which would allow Israeli investors to live and work in the United States  in order to be closer to their investments. The legislation, H.R. 3992, was passed by the House Judiciary Committee on March 19, 2012, and thereafter by a unanimous vote in the Senate on May 24, 2012.

The existing treaty between the United States and Israel, in place since 1954, has been limited to owners and certain employees of firms engaging in “substantial” (+50%) trade between the U.S. and Israel, commonly known as E-1 treaty traders. The new visa category will expand investment opportunities in the United States for Israelis as eligibility for same is based on the amount of the investment as opposed to the amount of trade the firm engages in. Thus, it will be an option for smaller investors whose investment does not meet the eligibility threshold under the EB-5 immigrant visa category, albeit not directly leading to lawful permanent residence in the United States.

The goal of the measure is to foster foreign investment into the United States economy and create new jobs for American workers while greatly enhancing the flow of Israeli innovation and technology to the United States. According to Rep. Berman, “the E-2 investor visa program will strengthen the vital United States-Israel relationship, boost the American middle class, and help grow the economies of both countries.”

Implementation of this visa category will not be effective until the terms and conditions of the final agreement are determined between the two countries. One of these conditions is reciprocity, to wit, enactment of an ordinance in Israel enabling Americans to receive work permits in exchange for investments that would lead to creation of jobs in Israel.