Federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services’ (USCIS) E-Verify system starting Jan. 15, 2009, to verify their employees’ eligibility to legally work in the United States. This new rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the United States.

Federal contracts awarded and solicitations issued after Jan. 15, 2009 will include a clause committing government contractors to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction. Contracts exempt from this rule include those that are for less than $100,000 and those that are for commercially available off-the-shelf items. Companies awarded a contract with the federal government will be required to enroll in E-Verify within 30 days of the contract award date. They will also need to begin using the E-Verify system to confirm that all of their new hires and their employees directly working on federal contracts are authorized to legally work in the United States.

More than 92,000 employers currently use E-Verify, a free Internet-based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their employees.  To read the USCIS Frequently Asked Questions (FAQs) on this subject, please click here.

USCIS has informed the American Immigration Lawyers Association (AILA) that applicants may continue to use the N-400 Application or Naturalization form even though the prior edition expired on October 31, 2008.  A new edition of the form has not been posted to the USCIS web site.

The information on acceptability of the expired form has been added to the “Special Instructions” section of the N-400 page and is also referenced in the “Edition Date” section.

When a new edition becomes available, we will post it here at www.bashyamspiro.com.

The bilateral adoption agreement between the United States and Vietnam expired on Sept. 1, 2008.  Both nations have agreed to cease processing new adoption cases until the United States and Vietnam sign a new bilateral agreement. 

Question:   Now that Sept. 1 has passed, what is the status of adoptions from Vietnam?

According to the Vietnamese Ministry of Justice, prospective adoptive parents who received a formal referral (matched with a child) by Sept. 1 will be allowed to process their adoption to conclusion.  Dossiers that were not referred by Sept. 1 will be closed and returned to the adoption service provider.    

Question:  Should adoption service providers stop working on new adoptions from Vietnam?

The Department of State (DOS) and United States Citizenship and Immigration Services (USCIS) strongly urge adoption service providers to stop matching prospective adoptive parents with children from Vietnam, and we also strongly encourage prospective adoptive parents not to seek or accept post-Sept. 1 referrals from Vietnam at this time.  By stopping such activities, families will not be put in the extraordinarily difficult situation of being matched and bonding with a child that cannot come to the U.S. based on an adoption.  

Question:  Does this also apply to adoptions involving special medical needs, among others?

Because there are exceptions in Vietnamese law that allow certain cases to be processed even without a bilateral agreement, including some cases for children with medical issues and certain relative adoptions, agencies and adoptive parents have asked about processing such cases.  However, the definitions and procedures for such cases are not clearly defined.   At this time, USCIS and the Department of State will not process these types of cases.  The Vietnamese government is in agreement that such cases will not be processed without a new bilateral agreement in place. 

With the de-licensing of adoption service providers and the strong possibility that a post-Sept. 1 special needs system would be decentralized, it is likely that a post-Sept. 1, 2008 adoption system would have even less safeguards and protections for children than the pre-Sept. 1 system with which we had significant concerns.  Therefore, DOS and USCIS have determined that it would be difficult, if not impossible, to implement a transparent and reliable adoption program for the special needs and other excepted types of cases in Vietnam without new protections and safeguards.  USCIS and DOS have thus concluded that it is in the best interest of children and families not to resume processing any post-Sept. 1 adoption cases until a new bilateral agreement is reached that resolves these concerns. 

Question:  How do I know if my case is a pre-Sept. 1 case?

On Sept. 23, 2008, the Vietnamese Department of International Adoptions (DIA) has provided a list of 534 United States dossiers that received referrals before Sept. 1.  These cases will be processed to conclusion.  Prospective adoptive parents unclear about the status of their case may wish to verify via e-mail with the United States Embassy in Hanoi (hanoiadoptions@state.gov) to confirm if their case is on the DIA list. 

Question:  When will processing of adoption cases resume in Vietnam?

The processing of adoption cases for children from Vietnam will resume when the United States and Vietnam enter into a new bilateral agreement on adoptions or the Government of Vietnam accedes to the Hague Convention on Intercountry Adoptions and the adoption system in Vietnam is recognized by the United States as Hague compliant.

Both governments acknowledge the complexity of these issues and the importance of developing a transparent adoption system that protects the fundamental rights of all parties prior to resuming adoptions. The United States continues to strongly support the Vietnamese government’s efforts to establish a viable adoption system with sound safeguards and protections for children and families. Until then, USCIS and DOS have concluded it is in the best interest of children and families not to process any post-Sept. 1, 2008 adoption cases without the security of a new agreement. This action does not affect cases where the prospective adoptive parents were matched with a child before Sept. 1, 2008, the date the previous bilateral agreement expired. 

Question:  May I still file a Form I-600A?

Yes.  Persons may continue to file a Form I-600A, Application for Advance Processing of Orphan Petition.  However, if Vietnam is designated as the country from which the prospective adoptive parent intends to adopt, he or she should know that without a valid bilateral agreement in place, it will not be possible to finalize an adoption in Vietnam and immediately bring the child to the United States on the basis of that adoption. 

Question:  May I still file a Form I-600 for a child in Vietnam?

Yes.  If you received a referral prior to Sept. 1, 2008 that meets the criteria set forth above, including being on the list of dossiers forwarded by the Government of Vietnam, you may file Form I-600, Petition to Classify Orphan as an Immediate Relative, for that child and the petition will be processed.

If you did not receive a referral before Sept. 1, 2008, USCIS and DOS will be unable to process your case or issue a visa for the child.

As our economy enters a period of slow growth, and maybe even the ‘R’ word, employers may look to cut costs to ride out the economic downturn. These costs could include reductions in workforce, pay, or hours worked by company employees. If a company currently has foreign employees, the decision must look beyond basic company economics and consider possible violations of immigration laws as well. So what potential immigration laws could a company violate under these circumstances?

Under the H-1B and E-3 professional visa programs, employers are required to pay their foreign employees the higher of the actual wage or prevailing wage for the position. The prevailing wage is determined by the Department of Labor (DOL). These obligations are covered under the Labor Condition Application (LCA) that is filed by employers with the DOL prior to obtaining professional work status for foreign employees. The LCA governs what the employer must pay and the hours the employee must work under the H-1B and E-3 programs.

Employers should be mindful that reducing pay or work hours of foreign employees could result in a violation of the employer’s obligations under the LCA. Make sure that the salary does not fall below the actual wage stated in the LCA for the foreign employee. That will result in a violation of the LCA, and could lead to DOL penalties. Reducing an employee’s status from full-time to part-time is possible, but an employer must first do two things: 1) make sure that they are paying the higher of the actual or prevailing wage for that part-time position and 2) file an amended H-1B/E-3 application that contains a new LCA evidencing the part-time status of the employee. Furthermore, the DOL does not recognize ‘nonproductive work status’, also referred to as ‘benching’. Employers will be required to make pro-rata payment of required wages even if a foreign worker is put on nonproductive work status.

What happens if an employer terminates an H-1B or E-3 professional workers? An employer must pay for the reasonable costs of transportation for the employee back to his/her home country for H-1B workers. This means the cost of a plane ticket back home. The obligation covers the H-1B employee and not the employee’s family. The same legal obligation does not exist for workers holding E-3 status.

Some employers will be considered ‘H1B dependent’ if a certain percentage of their workforce consists of H-1B workers. If an employer is H-1B dependent, it must monitor layoffs within its workforce. After an LCA is certified for a position, an employer must make certain that it has not laid off a U.S. worker from an equivalent position within 90 days preceding and 90 days after the filing of an H-1B petition. Employers must be careful to monitor layoffs of U.S. workers under these conditions.

The PERM labor certification application is the first step of most employer-sponsored permanent residency applications filed on behalf of foreign employees. The purpose of PERM is to prevent the displacement of qualified U.S. workers for the foreign employee’s position. Layoffs of U.S. workers in positions similar to the foreign worker, if they occur within the six-month period preceding the filing of a PERM labor certification, will impact an employer’s recruitment obligations and their ability to file the labor certification application. In this situation, employers will be required to consider the U.S. workers who have been laid off for the position specified in the labor certification. Therefore, it is important that employers monitor layoffs not only in the context of workers in H-1B or E-3 status, but for workers who are going through the permanent residency process as well.

Is it a tough economy? Yes. Will tough decisions need to be made? Perhaps. But be careful not to violate immigration laws while implementing cost cutting measures.

The U.S. Citizenship and Immigration Service (USCIS) issued a Frequently Asked Questions (FAQs) on intercountry adoptions.  This FAQ is related to questions regarding the new Hague intercountry adoption process and the orphan adoption process since the implementation of the Hague Adoption Convention on April 1, 2008.  To read the new USCIS FAQ on intercountry adoptions, please visit THIS LINK.

Online registration for the Diversity Visa Lottery Program (DV 2010) has begun.  Applicants can register for the program on the State Department web site from October 2, 2008 until December 1, 2008.  To register for the DV Lottery, please go to THIS LINK.

The Congressionally mandated Diversity Immigrant Visa Program makes available 50,000 permanent resident visas annually, drawn from random selection among all entries to persons who meet strict eligibility requirements from countries with low rates of immigration to the United States. 

You can get additional information on the Diversity Visa program at THIS LINK.

The U.S. House and Senate passed a bill to extend the religious worker and Conrad 30 programs until March 6, 2009.  These programs were set to expire at the end of this month.  The bill now awaits the President’s signature. 

We will keep you posted as additional information becomes available.

A U.S. Appeals Court upheld an Arizona law that revokes an employers license to do business in that state if they hire illegal workers.  Hopefully this decision (being a bad one for our economy) will end up at the U.S. Supreme Court.

To read the entire article on this topic, go to THIS LINK.

U.S. Immigration and Customs Enforcement (ICE) executed federal criminal search warrants at two Chinese restaurants in Sacramento, California and two homes linked to the businesses’ owners as part of an ongoing ICE investigation into possible hiring and alien harboring violations.  Twenty one undocumented workers were arrested. 

Unless our government enacts comprehensive immigration reform, we are going to see ICE raid industries that are important to the well-being of our economy.  Comprehensive reform is something that both Presidential candidates support. To see which plan fits your views on immigration, please go to THIS LINK.  We link to both Senator McCain and Senator Obama's plans on our Immigration News Update blog.

To read the entire ICE press release on these recent arrests, go to THIS LINK.