Business Immigration Weekly for November 20, 2015

I-94 for Refugees Automated

The US Customs and Border Protection (CBP) announced last week that it has started automating the Form I-94 for refugees. Previously, refugees were issued a paper I-94 that indicated their lawful entry. Now refugees will have to retrieve their Form I-94 from the CBP website at: https://i94.cbp.dhs.gov/I94/consent.html similarly to nonimmigrants. In limited circumstances, a refugee may still receive a paper Form I-94. Employers that hire refugees should note that for Form I-9 purposes, a refugee that chooses to present a Form I-94, the company should accept it as a receipt that is valid for identity and employment authorization. Prior to the 90-day receipt period, the employer must re-verify the refugee's identity and employment authorization and ask that the refugee present a valid List A or a valid List B and List C document.

USCIS Undermines DOS Split of Visa Bulletin

The US Citizenship and Immigration Services (USCIS) has issued its own interpretation of the Visa Bulletin indicating that for the month of December 2015, employment-based immigrants should use the Final Action Date chart to determine when they can file their green card applications. Family-based immigrants can use the Dates for Filing chart.

Per a new USCIS policy, a week after the Department of State (DOS) issues its monthly Visa Bulletin indicating immigrant visa availability for the next month, the USCIS will make its own separate determination on green card availability. If green cards are available for a certain category, the USCIS will post its own notice on its website at: www.uscis.gov/visabulletininfo to alert immigrants applying in those categories with more availability, that they may use the Dates for Filing chart and not the Final Action Date chart. Thus immigrants may no longer rely on the DOS Visa Bulletin, but must wait one week after its publication and then look to the USCIS to see whether a green card is available to them. The USCIS' actions make a mockery of the whole purpose of revising the Visa Bulletin. Below is a summary of the events so far.

On September 9, 2015, the USCIS and the DOS issued statements about their efforts to revise the process of deciding when green cards are available to immigrants. The stated goal was to enhance the system by fostering communication between the agencies and allowing for better predictions about green card availability. These efforts were one of the many executive actions President Obama announced in November 2014 to improve the nation's immigration system. As a result, the Visa Bulletin would be revised and the traditional visa preference charts for employment and family categories would be split into two. The first chart, Final Action Dates, would indicate for whom a green card is immediately available and the second, Dates for Filing, would indicate which immigrants can submit their green card applications, although final action would not be taken on their cases. The Dates for Filing chart in the October 2015 Visa Bulletin generously advanced several categories allowing thousands of immigrants what they thought was the chance to file their green card applications in October. This meant thousands of immigrants worked furiously to begin processing applications for themselves and their dependents.

The excitement was short-lived. In an unexpected turn of events, the DOS quietly issued a revised Visa Bulletin at 3pm on Friday, September 25th, retrogressing the preference categories it had most generously advanced. This was in spite of the DOS comments weeks before indicating that the intention of initially changing the Visa Bulletin was to ensure no future drastic retrogressions. In effect, the DOS and the USCIS have only made matters worse. What was initially an ineffective and cumbersome process is now made even more so. Immigrants cannot rely on the DOS' Visa Bulletin, but must now wait an additional week to determine whether the USCIS will allow them to file their green cards. The way that this drama has played out shows that these agencies cannot work together and highlights the inherent problems of our outdated and inefficient immigration system.

RIDE Program Expands to Wisconsin

Wisconsin recently joined the U.S. Citizenship and Immigration Services' (USCIS) RIDE program (Records and Information from DMV's for E-Verify). RIDE is a USCIS initiative that links the E-Verify program with state driver's license databases for identification verification purposes. When an employee provides a driver's license or state identification to an E-Verify employer for Form I-9, Employment Eligibility Verification, purposes, the individual's information is verified against state driver's license databases. Other states that currently participate in the RIDE program include: North Dakota, Mississippi, Florida, Idaho, Iowa and Nebraska.