Copland and Brenner

Table of Contents

1. Important Forms Updates
2. In Brief: Recent Developments

1. Important Forms Updates

   Employment Authorization Application (Form I-765): U.S. Citizenship and Immigration Services (“USCIS”) has announced a new edition of Form I-765, which will be the only version accepted effective July 9, 2008. The new edition bears the following notation in the lower right hand corner of the form: Form I-765 (Rev. 05/27/08) N.” The “N” indicates that no other editions will be accepted. The update was necessary due to changes in F-1 optional practical training availability and applicable eligibility codes which track the regulatory scheme.

   This means that the April 8, 2008 and July 30, 2007 editions of Form I-765 will be accepted only if received by USCIS by July 8, 2008. As of July 9, only the May 27, 2008 edition will be accepted. The updated Form I-765 is available on the agency’s web site at www.uscis.gov.

   Report of Medical Examination and Vaccination Record (Form I-693): USCIS has updated, for the second time in approximately two months, Form I-693. The most recent edition bears the notation “Form I-693 (Rev. 06/05/08) N” in the lower right hand corner. The amended form reflects updates to the technical instructions for the tuberculosis (TB) component of the medical examination, which became effective May 1, 2008, as well as technical instructions for vaccinations which went into effect on July 1, 2008.

   Initial (as of June 10) online USCIS guidance regarding the updated I-693 stated that “[p]revious editions will be accepted only until 07/14/2008.” However, amended guidance (updated June 26) states instead that “ [p]revious editions will be accepted only for medical exams conducted before August 1, 2008. Medical exams conducted on or after August 1, 2008, require use of the 06/05/2008 edition. ” The new form is available online at www.uscis.gov.
   
   Employment Eligibility Authorization (Form I-9): In our December 2007 edition, we wrote about a USCIS Update of November 7, 2007, in which the agency advised that a revised Form I-9 was available for use. That edition of Form I-9 bore a revision date of June 5, 2007, printed as “(Rev. 06/05/07) N” on the lower right corner of the form. It also indicated, in the upper right hand corner, that it would expire on June 30, 2008. A subsequent notice, published in the Federal Register on November 27, 2007, provided employers with 30 days to transition to the new Form I-9.

   In an odd series of events, USCIS last month issued an updated Form I-9 with an edition date of June 18, 2008, which indicated it would expire on June 30, 2009. That version of the form, however, is not on the agency’s web site. Anyone accessing the online I-9 will see that the form continues to indicate an edition date of June 5, 2007. However, the expiration date on the form is now stated as June 30, 2009.

   The reason for the confusion, and the apparent withdrawal of any June 18, 2008 Form I-9, might involve the agency’s Handbook for Employers, Instructions for Completing the Form I-9 (publication M-274, bearing the edition “(Rev. 11/01/2007) N” in the lower right hand corner). The Handbook , available online at http://www.uscis.gov/files/nativedocuments/m-274.pdf, continues to include the June 5, 2007 version of the form reflecting an expiration date of June 30, 2008.

   Anyone completing Form I-9 on behalf of an employer should read and be familiar with the instructions and guidance contained in the Handbook . In light of the recent “update” to the June 5, 2007 edition of the form (i.e., changing the expiration date to June 30, 2009), we strongly recommend that this newer version be used by any employer completing a Form I-9 after June 30, 2008.

2. In Brief: Recent Developments

   Premium processing available for certain I-140 cases: Effective June 16, USCIS began accepting requests for premium processing involving certain employment-based immigrant visa petitions. In its Update of June 11 regarding this change, the agency advised that it “is limiting Premium Processing Service for Form I-140 petitions that are filed on behalf of aliens:

   - Who are currently in an H-1B nonimmigrant status;
   - Whose sixth year will end within 60 days;
   - Who are only eligible for a further extension of H-1B nonimmigrant status under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
   - Who are ineligible to extend their H-1B status under section 106(a) of AC21.”

   Section 104(c) of AC21 permits an extension of H-1B status for up to three years for an alien who is the beneficiary of an approved I-140 and is otherwise eligible for lawful permanent resident status, but an immigrant visa number in his or her preference category is unavailable due to backlogs resulting from the quota system. Section 106(a) authorizes one-year extensions of H-1B status where a labor certification application or I-140 was filed at least 365 days prior to the expiration of an alien’s sixth year in H-1B status. Under the new policy, I-140 premium processing will be available only for an alien currently within 60 days of completing his or her sixth year of H-1B status, and only if an immigrant visa number is not currently available in the applicable preference category. Additional information is available at www.uscis.gov, and clicking on the link to Press Room for June 2008.

   Two-year employment authorization document: On June 12, USCIS announced that it would begin issuing employment authorization documents valid for two years in certain circumstances, beginning June 30, 2008. The new two-year EAD is limited in availability to individuals who have applied to become a lawful permanent resident using a Form I-485 (Application to Register Permanent Residence or Adjust Status), and filed for employment authorization under Section 274.a.12(c)(9) of Title 8, Code of Federal Regulations (8 C.F.R.) but are unable to become an LPR because an immigrant visa number is not currently available. Additional information may be found on the USCIS web site, at http://www.uscis.gov/files/article/employ_auth_docs_061208.pdf.

   As noted in Frequently Asked Questions issued the same day, USCIS pointed out that an application for adjustment of status may be filed only when an immigrant visa number is available. This means the new policy is necessarily limited to cases involving renewal of employment authorization, where the priority date in the applicable preference category has retrogressed since filing of the I-485. See http://www.uscis.gov/files/article/2yrEAD_FAQ_061208.pdf.

   E-Verify required by all federal contractors: On June 6, 2008, President Bush issued Executive Order 13465, mandating that all executive departments and agencies “that enter into contracts shall require, as a condition of each contract, that the contractor agree to use an electronic employment eligibility verification system designated by the Secretary of Homeland Security.” The requirement extends to “all persons hired during the contract term by the contractor to perform employment duties,” and “all persons assigned by the contractor to perform work within the United States on the Federal contract. ” (emphasis added) Significantly, this would include not only new hires, but also any person already working for the contractor. The Department of Homeland Security published its designation of the E-Verify system as that to be used by federal contractors pursuant to the Executive Order.

   Online service for FOIA request status: In an Update issued June 30, USCIS advised that it has launched a Freedom of Information Act (“FOIA”) status check service online. To use the service, a requester must input the control number assigned to the request, which should appear on any notice from the agency. The online FOIA status service can be accessed at www.uscis.gov by clicking on the link to “About USCIS,” then the link for “Freedom of Information and Privacy Act Acts,” and finally to the related link for “FOIA Request Status Check.”

   EB3 category unavailable for balance of FY2008: According to the July 2008 Visa Bulletin , immigrant visa numbers in the employment-based third preference category for professionals, skilled workers and other workers are now unavailable. The State Department explained that “[d]emand for numbers, primarily by USCIS for adjustment of status cases, will bring the entire Employment Third preference category to the annual numerical limit by the end of June. As a result, this category will become ‘unavailable’ beginning in July and will remain so for the remainder of FY-2008. Such action will only be temporary, however, and Employment Third preference availability will return to the cut-off dates established for June in October, the first month of the new fiscal year.”

   Au pair regulations amended: By notice published in the Federal Register on June 19, 2008, the Department of State has revised au pair regulations to allow for repeat participation in certain circumstances. The basis of the change is that the State Department “has determined that an au pair who has previously participated is likely to be more familiar with the American culture (thereby quickly overcoming cultural challenges), is a proven successful caretaker, and will be able to build on the skills previously acquired.”

   Under the new rule, a “foreign national who enters the United States as an au pair Exchange Visitor Program participant and who has successfully completed his or her program is eligible to participate again as an au pair participant, provided that he or she has resided outside the United States for at least two years following completion of his or her initial au pair program. ” (emphasis added). The rule is an interim regulation, with requests for comment which are due by July 21, 2008 - the same date its provisions become effective.

   Removal order upheld against former Nazi SS guard: On June 18, the Department of Justice issued a press release advising that its Board of Immigration Appeals had “affirmed an order directing the removal of Josias Kumpf, 83, due to his participation in Nazi-sponsored crimes of persecution during World War I.” Kumpf was born in what is now Serbia, immigrated to the U.S.A. in 1956 and subsequently naturalized. It was the revocation of his U.S. citizenship, also called denaturalization, that led to removal proceedings against him.

   In its February 23, 2006 decision affirming the lower court’s denaturalization of Kumpf, the U.S. District Court of Appeals for the Seventh Circuit described his immigration history as involving a visa received on March 23, 1956 under the Refugee Relief Act, which allowed him to enter the U.S.A. about two months later as a permanent resident. The Court noted that “[h]is visa application states that he served in the ‘German Army’ in Germany, Poland, and France, omitting any reference to the SS.” He subsequently “filed an application for naturalization in February 1964. Again, the application omitted any reference to the SS; in response to a question regarding his memberships in military or other organizations, Kumpf asserted that he was in the “German Army.” He became a U.S. citizen on May 9, 1964.

   It would be years until wartime documents were discovered relating to his service in the SS, which led to the government seeking his denaturalization. The Justice Department’s press release states that Kumpf “served as an armed SS guard at the Sachsenhausen Concentration Camp in Germany and was later transferred to an SS-run labor camp in Poland, where he took part in a mass execution of prisoners.” It also states that “Kumpf admitted that he participated in a November 1943 Nazi operation that bore the code-name ‘Aktion Erntefest’ (‘Operation Harvest Festival’), in which approximately 42,000 Jewish men, women and children were murdered at three camps in eastern Poland in only two days. Kumpf stood guard as approximately 8,000 Jewish prisoners – including approximately 400 children – were shot and killed in pits at Trawniki. According to Kumpf, his assignment was to watch for victims who were still ‘halfway alive’ or convulsing.’ If any of the prisoners attempted to escape, he stated, his job was to ‘shoot them to kill.’”