Revised Guidance on FBI Name Checks, Arizona Employment Verification Law Challenge Dismissed by Federal Court, and REAL ID Final Rule Published

USCIS Issues Memorandum Revising Previous Guidance Regarding FBI Name Checks

On February 4, United States Citizenship and Immigration Services (USCIS) issued a memorandum modifying its existing policy regarding FBI name checks. The modification promises to relieve existing adjudication delays due to background checks. Upon receipt of an Application for Adjustment of Status (I-485), USCIS will continue to request an FBI name check. If the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the application will be approved. Before an application is approved, a definitive FBI fingerprint check and IBIS check must still be obtained and resolved. Please note this policy will also apply to the following applications: Application for Waiver of Ground of Inadmissibility (I-601), Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), and Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603) (I-698). The policy does not apply to naturalization (N-400) applications.

If any derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted. Subject to reporting requirements, the application or petition may be denied, dismissed, administratively closed, withdrawn, or referred to the Immigration Court at any time.

How This Affects You

Foreign nationals who have filed one of the above-mentioned applications will no longer be subjected to lengthy delays caused by FBI name checks if their application is otherwise approvable. However, USCIS will retain the right to take further action on the case if negative information is subsequently furnished by the FBI, including denial of the application or rescission of approval.

Arizona Employment Verification Law Challenge Dismissed by Federal Court

The most recent lawsuit challenging the Legal Arizona Workers Act (the Act) has been dismissed by a federal judge, though an appeal is expected. The Act took effect on January 1, 2008 and prohibits Arizona employers from intentionally or knowingly employing an unauthorized alien. The penalties are as follows:

1. For a first violation of an employer knowingly hiring an unauthorized alien, the employer faces mandatory suspension of all licenses for a maximum of 10 days and three years’ probation.
2. For a first violation of an employer intentionally hiring an unauthorized alien, the employer faces mandatory suspension of all licenses for a minimum of 10 days and five years’ probation.
3. For a second violation committed during a period of probation, the employer faces permanent revocation of their licenses.

In addition, the Act requires all employers to verify the employment eligibility of all new hires through E-Verify. Proof of verification of an employee’s employment authorization through the E-Verify program will create a rebuttable presumption that an employer did not violate the new state law. For further information regarding the Act, please see our prior Immigration Alert at http://www.morganlewis.com/pubs/ImmigrationAlert_ArizonaImmigLaw_17dec07.pdf.

What Is E-Verify?

E-Verify is a web-based program operated by USCIS in partnership with the Social Security Administration. E-Verify aids employers in determining the employment eligibility of new hires by comparing information provided by the new employee on Form I-9 with database records.

How This Affects You

Participation in E-Verify is mandatory for all employers in the state of Arizona. In addition, employers who knowingly or intentionally hire an unauthorized worker face stiff penalties, including suspension and revocation of the employer’s license(s).

REAL ID Act Final Rule Published by DHS

The Real ID Act, which is effective March 31, 2008, establishes the minimum standards for state-issued driver’s licenses and identification cards that federal agencies will accept starting May 11, 2008. The standards focus on the information and security features that must be incorporated into each card, the application information used to establish the identity and immigration status of an applicant, and the physical security standards for facilities where the cards are produced.

Beginning May 11, 2008, unless a state has requested and obtained an extension of the compliance date from the Department of Homeland Security (DHS), federal agencies will not accept driver’s licenses or identification cards for official purposes from any state that is not in compliance with the REAL ID Act. Should a state choose not to comply, or should it fail to request and obtain an extension, its residents would be unable to use a driver’s license or identification card issued by the state to, among other things, enter a federal government building or board a commercial airplane. The deadline for a state to request an extension is March 31, 2008. Any initial extension will terminate on December 31, 2009 unless the state submits a request to DHS for a second extension through May 11, 2011 and certifies that the state has met certain benchmarks. The deadline for the second extension request is October 11, 2009.

Individuals in states that choose to comply with the REAL ID Act must replace their licenses and/or identification cards with the more secure cards by December 1, 2014 if born on or after December 1, 1964 and by December 1, 2017 if born before December 1, 1964.

Foreign nationals will receive a temporary driver’s license or identification card that is only valid through the duration of their authorized period of stay. Foreign nationals without a set expiration date for their authorized period of stay, including those in F-1 status, will only be eligible to receive a driver’s license or identification card that is valid for a maximum of one year.

By December 31, 2009, states will be required to verify that the applicant is lawfully present in the United States and confirm with the Social Security Administration that the Social Security Number presented is registered to that person.

Finally, the maximum period of validity of a driver’s license or identification card for a permanent resident or U.S. citizen will be eight years.

How This Affects You

Any individual who is a resident of a state that either chooses not to comply with the REAL ID Act or fails to request and obtain an extension from DHS will not be able to use a driver’s license or identification card issued by that state to enter a federal government building or board a commercial airplane.

Foreign nationals will only be eligible to receive a temporary driver’s license or identification card that will be valid for the duration of their authorized period of stay. F-1 students and other foreign nationals with no set expiration date will only receive cards valid for a maximum period of one year. Renewals will be granted based on evidence of the extension of the authorized stay. It will therefore be critical that extensions of stay are requested as far in advance as possible to limit the possibility that a foreign national would be unable to drive.

Morgan Lewis will continue to monitor developments and will update you with any new information. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Lance Nagel
415.442.1345
lnagel@morganlewis.com
 
Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

Eric S. Bord
202.739.6040
ebord@morganlewis.com

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