We have some important new developments relating to I-9s, E-Verify and travelling under U. S. Visit.  You may wish to forward the U.S. Visit information to your foreign national employees.  Please enjoy a happy beginning to a new year.

New I-9 Employment Authorization Verification Form Required

• The Department of Homeland Security has issued a new rule and form for Employment Eligibility Verification (Form I-9), which employers will be required to use as of February 2, 2009.  In typical government fashion, the form has not yet become available.  Please watch our website as we will post a link to it immediately when the government releases it.  Also, the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the new Form I–9 have changed slightly: naturalization certificates are no longer considered an acceptable I-9 document and the rule also adds to “List A” foreign passports containing specially –marked machine-readable visas and documentation for certain citizens of the Federated States of Micronesia (FSM) and the Republic of Marshall Islands (RMI).  Finally, when re-verifying an old I-9, the new Form I-9 must be used.
  

The Department of State issued its November visa bulletin, which shows some forward movement in the Employment-Based Second and Third preference categories. 

• All countries of chargeability, including China, India, Mexico and the Philippines, remain current in the Employment-Based First preference category.

• In the Employment-Based Second preference category, priority dates for Chinese and Indian nationals have each advanced two months, to June 1, 2004 and June 1, 2003, respectively.  Mexico, the Philippines and all other areas of chargeability remain current.

• The Third preference category shows advancement across the board.  The “all other areas of chargeability” category progressed four months to May 1, 2005; China advanced to February 1, 2002; and India moved forward by three months to October 1, 2001.  Mexico and the Philippines advanced to September 1, 2002 and May 1, 2005, respectively.

The November bulletin also reports that the United States Citizenship & Immigration Services has a significant amount of cases with priority dates earlier than the established cut off dates.  This backlog will likely result in slow forward movement of cut off dates during the next few months.

E-Verify Extended Through March 6, 2009
• On September 30, 2008 the President signed into law an appropriations bill that, among other items, provides additional funding for the E-Verify program until March 6, 2009.  This funding effectively extends the E-Verify program through that date. 

The Department of State released its October Visa Bulletin on September 11, 2008, with much worse news on priority date movement than expected.  This was particularly true for Chinese and Indian nationals.  

For the month of October, EB-2 Chinese nationals face priority date retrogression to April 1, 2004. [This is a 2 year differential from the August 1, 2006 cut off listed under the September Visa Bulletin.]   For EB-2 Indian nationals, priority dates retrogressed almost 3 years, from August 1, 2006 to April 1, 2003.  All other EB-2 foreign nationals are current for the month of October.   All EB-1 (PhD level) foreign nationals remain current.

For the EB-3 category, January 1, 2005 is the cut off priority date which is current for all nationalities except China,  now at October 1, 2001; India,  now at July 1, 2001, Mexico,  now at July 1, 2002 and the  Philippines, now at January 1, 2005. 

As we have previously related, visa retrogression will continue to be a problem until the government increases its current annual allotment of 140,000 employment-based permanent visas.