MAY 2013
Khaas Baat : A Publication for Indian Americans in Florida

Immigration

New Form I-9, Employment Eligibility Verification, Must Be Used Starting May 7

Dilip Patel

By DILIP PATEL

U.S. Citizenship and Immigration Services (USCIS) has revised its Form I-9, Employment Eligibility Verification, the form that all employers are required to complete for each employee hired in the United States. While the new form can be used now, it must be used as of May 7 — and employers can be fined for failing to use it.

The new form is two pages instead of one, includes new fields, and has been reformatted. Changes to the I-9 are geared toward clarifying and providing additional guidance to employers and employees about the I-9 process. USCIS hopes that clearer instructions will help employees and employers avoid making inadvertent errors that can be serious.

Employers who have previously completed an I-9 for current employees should not complete a new Form I-9, but the new form should be used for revalidation. (Unnecessary re-verification can violate the applicable anti-discrimination provisions of the immigration laws.)

USCIS also announced changes to the associated M-274, “Handbook for Employers, Guidance for Completing the Form I-9.” It includes information about the new I-9 and explains how to complete the new form. The new I-9 form and M-274 handbook are available at www.uscis.gov/i-9

Employers would be wise to commence using the new form now.

More Fingerprinting and Photographs for Foreign Nationals Seeking Benefits at USCIS Field Offices

USCIS announced that commencing on May 6, foreign nationals will be required to submit fingerprints and photographs when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. This new biometrics requirement is called Customer Identity Verification (CIV). Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center (ASC) to provide biometric data. This requirement will not change. Instead, USCIS will add another round of fingerprinting and photographing. For CIV, an individual appearing at a USCIS field office for an interview or to be issued evidence of an immigration benefit will have his or her identity biometrically re-verified. Examples of evidence include temporary travel documents, parole authorizations, temporary extensions of Form I-90, and temporary I-551 stamps on passports or on Forms I-94 to evidence lawful permanent resident status.

An individual coming to USCIS for an InfoPass appointment or as the guest of an applicant or petitioner will not be required to submit biometric data.

The individual’s experience under this new process will be similar to that of an ASC appointment. USCIS will take two fingerprints and a photograph of the individual and input this information into the US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) Secondary Inspections Tool (SIT), a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents. In instances where biometrics don’t produce a verification, other steps will be taken, which may include reprocessing at an ASC or even further questioning if an identity is suspicious.  

Why is this second round of biometrics being implemented? USCIS says to protect against identity fraud and defend against threats to national security.

Frequent Travel Abroad and Abandonment of Lawful Permanent Resident Status
 
Maintaining lawful permanent resident status and avoiding abandonment of it by long absences abroad can be tricky. There is a common misunderstanding that simply returning to the United States once every six months will preclude a finding that one has abandoned his or her lawful permanent residency. Whether an LPR has abandoned permanent residency, however, is not based solely upon the length of time spent outside of the U.S., but, rather, on a totality of circumstances and a number of various factors.

The CBP Inspector’s Field Manual (IFM) explains that the length of time spent abroad is not the sole indicator of abandonment. The IFM notes that other indicators of possible abandonment are “employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are nonresidents with return passage, lack of a fixed address in the U.S., or frequent prolonged absences from the U.S.” In questionable cases, the IFM advises officers “to ask for other documentation to substantiate residence, such as a driver’s license and employer identification cards.”

CBP representatives in Baltimore, for example, have said that its officers are focused less on the length of time abroad and more on where the person actually lives. They also look at how many years the person has lived in the U.S., whether the person is employed in the U.S. or abroad, where family members live, and whether U.S. taxes have been paid. For CBP representatives at Washington (Dulles), domicile is the major issue.

Foreign nationals who expect to be absent from the United States for prolonged periods of time are advised to discuss their circumstances with an immigration lawyer who can thoroughly review all the facts of the situation and provide guidance on how best to avoid abandonment. Filing an application for a Re-entry Permit may be one of several solutions to amassing indicia of one’s permanent intent to remain a U.S. resident.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com

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