A congressional immigration reform proposal passed its first test and was approved by the Senate Judiciary Committee on May 21, 2013.  Action on the bill had been expected before the Memorial Day break, but not so much sooner than the self-imposed deadline. 

The Committee reached a key compromise related to H-1B specialty occupation workers, with the following provisions: 

  • H-1B numbers would increase, from 65,000 per year to a range of between 110,000 and 180,000.
  • Filing fees for H-1B petitions would increase substantially.
  • Employers must recruit U.S. workers but need not offer jobs to all U.S. workers who are qualified.
  • H-1B workers may not be paid less than U.S. workers with the same position, and employers dependent on the foreign workers must pay higher than Level 1 wages to the H-1B workers.
  • Outsourcing through job shops who employ H-1B workers is restricted.

The legislation would treat foreign graduates with U.S. science, technology, engineering or math (STEM) degrees more favorably than those with other degrees, allowing them to skip the H-1B process and apply directly for permanent residence and a green card.

The bill contains widescale changes to immigration law going well beyond H-1B employment.  The next step will be debate of all the provisions by the full Senate   The House has just begun to start releasing its immigration reform bills.

Employers must begin using the new version of Form I-9 on May 7, 2013.  U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS) announced publication of the revised Form I-9 for Employment Eligibility Verification on March 8, 2013.  Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of employees. 

Changes to the Form

Employers should familiarize themselves with the Form.  It contains several changes, including the following:

The form now has two pages to complete; page one is for the employee to complete, while fields for information about documents reviewed and for the employer certification are on page two.   A warning on the bottom of page 1 — “STOP.  Employer Completes Next Page” – is designed to ensure that the employer does not overlook the second page.

  • Fields for additional data have been added:
    • “Other Names Used” (The “maiden name” field is gone.)
    • Boxes to fill for the Social Security number, instead of an open text field. (The instructions clarify that providing a Social Security Number is optional, unless the employer uses E-Verify, in which case the number must be added to the I-9.)
    • Employee e-mail address and telephone number (The instructions clarify that this information is optional, but that if it is provided, DHS may contact the employee in the event of a mismatch with Social Security records.)
    • “USCIS Number” (Though listed as an alternative to the “Alien Registration Number,” it is the same number.)
    • “Form I-94 Admission Number,” issued by Customs and Border Protection (CBP) on entry to the U.S. – required only if it appears on a work authorization document
    • Foreign passport information
    • On page 2, a field for employee name from Section 1
    • A third set of fields for “List A” identity and employment authorization document information
    • In the “Certification” section, specification that the employee representative is attesting to the following:
      • I have examined the document(s) presented by the above-named employee;
      • The above-listed document(s) appear [sic] to be genuine and to relate to the employee named, an
      • To the best of my knowledge the employee is authorized to work in the United States.
    • Boxes for 3-D Barcode – the purpose of these fields are not described.

The revised form clarifies the timeframe for completion, indicating that “Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.” 

Applicability

As indicated on the instructions, the Form is required for newly hired employees.  When rehiring an employee within three years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3 of the previously completed form. 

Document Retention

Regarding document retention, the form instructions indicate that employers may, but are not required to, photocopy documents employees present for completion of the Form I-9, but that photocopies must be retained and presented with Form I-9 in case of an inspection by DHS or other federal government agency.

The I-9 is available on the USCIS website.

Following are some highlights for the comprehensive bipartisan immigration reform bill introduced in the Senate on April 17, 2013.

H-1B Cap Raised, but New Restrictions on Temporary H-1B Workers.  In an effort promote market-based limits, the annual H-1B cap would be raised from 65,000 to 110,000, and would be adjustable upwards to as high as 180,000 per year if employer requests for H-1B workers rises.  The 20,000 additional H-1B slots currently available for U.S. Master’s degree graduates would be increased to 25,000, but would be limited to U.S. Master’s graduates in science, technology, engineering and math (STEM) fields only. 

However, the bill would also impose onerous new obligations and restrictions on U.S. employers hiring H-1B workers, reportedly including the following:

  • Higher wage obligations
  • Mandatory recruitment of U.S. workers and online posting for H-1B positions
  • Increased filing fees and limits on H-1B hiring for “ H-1B dependent employers” (more than 30 % of a company’s workforce are H-1B or L-1 employees)

Entrepreneur Start-up Visa.  The proposal offers up to 10,000 new temporary visas to entrepreneurs who create at least three jobs, raise at least $100,000 from angel investors, venture capitalists or other investment groups, and generate at least $200,000 in revenue.

Retirees and Snowbirds.  There is a “retiree visa” for purchasers for residences with $500,000 cash or more and also a provision for Canadian snowbird homeowners and renters. 

New Employment Eligibility Verification Obligations for U.S. Employers.  Within five years after the bill’s passage, all U.S. employers would be required to enroll in the E-Verify system.  Large employers would be required to enroll sooner, and mandatory enrollment would be phased in later for small businesses and certain industries (e.g. agriculture).  The bill would also incorporate “photo matching” into E-Verify screening for new hires, requiring employers to certify that the photograph on the identity document presented by the new hire exactly matches an identical photograph in the E-Verify system.

Merit-Based Point System.  A new merit-based option would make green cards available based on education, employment, length of residence, and other considerations.

Re-Allocation of Immigrant Visa Quotas to Clear Backlog.  The bill proposes various reforms to the current employment- and family-based immigrant visa quota system designed to reduce and eliminate visa processing backlogs.  Significant changes include, but are not limited to, the following:

  • Derivative spouses and children of principal immigrants in both employment- and family-based categories would be classified as “immediate relatives,” and no longer be counted toward numerical limits.
  • Many employment-based immigrants would no longer be counted toward annual numerical limits, including all EB-1 categories (extraordinary ability, outstanding professors/researchers, and multinational executives/managers), doctoral degree holders in any field, and some physicians.
  • EB-2 classification would be expanded to include a new sub-category for foreign nationals who earned U.S. Master’s or higher degrees in STEM fields during the past five years, and have an offer of employment in a STEM field.
  • Per-year numerical limits on EB-2 and EB-3 visas would be increased.

W Visa for Lower-Skilled Workers.  The bill proposes a new nonimmigrant, temporary worker category, a W visa for workers to perform services or labor.  It will require registration and certification:

  • The employer must register.
  • The position must be registered.
  • The worker must request and receive certification for W status. 

Employers will need to recruit for U.S. workers for 30 days.  20,000 W visas would be available starting in 2015, with the number increasing to 75,000 in 2019.

 “Blue Card” for Agricultural Workers.  Agricultural workers would be eligible for a new type of legal status work authorization card: a blue card.  Ag workers would not be tied to a single employer.  Wages would be set by the Department of Agriculture, instead of the Department of Labor.  The ag workers must have done the following:

  • Worked in the U.S. ag industry for at least 100 days in the two years prior to December 31, 2012
  • Pay a $400 fee
  • Paid their taxes
  • Have no criminal record

The bill caps the blue cards at about 112,000 for the first five years.  Blue card holders could be eligible for permanent legal residency in five years.

Registered Prospective Immigrant (RPI).  Current undocumented noncitizens could apply for “registered prospective immigrant” (RPI) status with valid work authorization under the following circumstances:

  • Presence in the U.S. since December 31, 2011
  • Passing a background check
  • Paying a $500 penalty fee
  • Paying taxes

RPI status would be available for six years and could be renewed for another $500.  Permanent resident status would be available after payment of an additional $1,000 fee and the following:

  • The border is sufficiently secure.
  • All individuals who are waiting for green cards when the bill is enacted have been processed, that is, those in the country without authorization to the “back of the line.”
  • The RPI possessed the status for 10 years.
  • Tax payments are up-to-date.
  • The RPI demonstrates knowledge of US civics and English.

Path to Residency or Citizenship

The bill does not provide a direct route to U.S. citizenship for those adjusting from unlawful status, but it does not prohibit applying for citizenship.

 

Why is CBP eliminating paper I-94 cards? CBP believes that filling out and issuing paper I-94 cards is an unproductive use of time, for both government officers and travelers. As part of post-9/11 initiatives put in place nearly a decade ago, information about travelers’ identities, travel documents, and U.S. visas is already in the U.S. government’s possession prior to their arrival to the United States on an air or sea carrier. Arrivals and departures of foreign nationals by air and sea are already registered electronically by DHS through this system. Therefore, CBP’s issuance of paper cards upon admission, and its collection, review, and data entry of cards at admission and departure is no longer a necessary effort. Perhaps more significantly, the manpower necessary to manage the system built on paper cards represents a major cost which the government wishes to eliminate.I am a temporary worker or visitor to the United States. How will I-94 elimination change my admission process? If I won’t have a paper I-94 card, how can I prove my lawful admission? At the time of your entry, you will still have an interview with a CBP officer regarding your purpose of coming to the United States and the length of your stay. Your passport will be stamped, and the stamp will indicate the class of your admission (or parole) into the United States, and a date for expiration of your authorized stay. There will still be an “I-94” record created and attached to your identity, but it will be in electronic, not paper form. CBP has created a website (http://www.cbp.gov/I94), where you will be able to access all the data that used to be on the paper I-94 card hyperlink here. To safeguard against privacy concerns, CBP’s I-94 website will require inputting multiple data points to log in to view the electronic I-94, including the following:

  • first, middle, and last name,
  • passport number,
  • country of citizenship
  • place of entry to the United States
  • date of entry into the United States, and
  • possibly more information.

Reportedly, electronic I-94 admission data will be available online to travelers immediately following admission, and available to DHS stakeholders (e.g., State Departments of Motor Vehicles, Social Security Administration, colleges and universities, etc.) within approximately 24 hours. For travelers who still wish to receive a paper I-94 card, CBP will issue paper cards upon request.

I work at a U.S. company which hires foreign workers. How will I be impacted by I-94 elimination? The absence of paper I-94 cards will change the way workers can provide you with proof of maintenance of status when you are sponsoring them for work-authorized classification. U.S. Citizenship and Immigration Services will expect electronic I-94 printouts to be retrieved and printed from the Internet, and submitted along with immigration petitions, and you may have to assist your workers in accessing this information. Also, I-94 automation for air and sea travelers will change the documents you must accept when verifying a worker’s U.S. employment eligibility on Form I-9 or through the E-Verify system. In addition to paper I-94 cards—which will still be issued to some travelers—companies should be prepared to accept printouts of electronic I-94 data from CBP’s website. This I-94 data should be used to complete I-9 and E-Verify forms just like data from paper I-94 cards. Note that a passport stamp annotated with a work-authorized class of admission (e.g. H-1B) is not an acceptable document for I-9 purposes, and you must continue to fill out I-9 forms using I-94 data only.

I’m worried about errors on my record that will be undetectable until I’ve already completed the admissions process. Are there procedures for CBP to correct errors in electronic I-94 records? With paper I-94 cards, it is easy to spot obvious errors in the date or class of admission which correlate to errors in CBP internal databases, and it is relatively simple to request correction at the time of admission if an error is made. After I-94 automation, errors will likely not be detectable until after a traveler has completed the admissions process and left the CBP/international arrivals area of the airport or seaport. If you note that there is a clear error in your electronic I-94 record, or a discrepancy exists between the admission stamp in your passport and your I-94 record, you will have to appear at a CBP Deferred Inspection office to resolve these issues. We strongly recommend that all travelers with automated I-94s check their online records immediately upon admission to verify their accuracy.

If I don’t have a paper I-94 card, will I still be expected to turn in any documentation, or otherwise report my departure from the United States? According to CBP, in the advent of I-94 automation, you do not need to turn in any documentation at the time of departure, as long as you are departing the United States via air or sea. Departure manifests for air and sea carriers are automatically registered in DHS databases in a similar fashion to arrivals, so your departure from the country will close out your I-94 admission record in the same way your arrival created the record. However, if you depart the United States via a land border, your departure will not be automatically registered, so you will need to affirmatively report your departure. CBP has provided limited guidance regarding how to effectively do this, but we recommend that you print out a copy of your electronic I-94, and give it to CBP or the adjacent country’s border agency (e.g. Canadian Border Service Agency) as you undergo the arrival and inspection process there. Additionally, you might consider asking Canadian or Mexican border officials to date and stamp your passport to confirm your departure from the United States and entry to their country. If you fail to do either of these things, CBP will continue to allow foreign travelers to submit proof of departure from the United States according to these instructions.

I’m a Canadian citizen, so my passport isn’t usually stamped and I’m not usually issued a paper I-94 when I travel. This change won’t affect me, will it? Actually, it may. Canadian visitors traveling to the United States by air or sea will now have electronic I-94 records created and attached to their identity. As such, these individuals will go through the same process as all other foreign travelers, and will likely have their passports stamped and annotated with a visitor class of admission and, in most cases, a six-month period of authorized stay. Canadian visitors will also be able to access their electronic I-94 records online. Keep in mind, again, that I-94 automation will only be phased in at Pre-Clearance Operations at Canadian airports, and that procedures at the land borders will not change. Foreseeably, CBP officers stamping and annotating passports for all Canadian travelers could cause increased wait times for U.S. immigration inspection at Canadian airports. As I-94 automation is phased in for Pre-Clearance locations, we recommend you arrive extra early to the airport or book longer layovers if connecting to U.S.-bound flights.

What other issues should I be aware of?

  • Non-DHS agencies—federal, state and local—may not be fully aware or informed of the elimination of paper I-94 cards, and may still insist on presentation of paper I-94 cards to issue documents and benefits to foreign nationals. At least during the first few months of I-94 automation, we strongly recommend printing a copy of CBP’s public notice regarding the elimination of paper I-94 cards and carrying it with you to any appointment at a federal, state or local agency where you might need to present I-94 data.
  • Electronic I-94 data will only be available on CBP’s website for current, ongoing periods of admission. In other words, once a foreign national with an automated I-94 record departs the United States, his or her admission data will no longer be accessible online. Individuals who wish to maintain detailed information regarding their travel and admission should print and store I-94 records each time they enter the United States.
  • The name linked to each automated I-94 record will reportedly be the name from the individual’s latest U.S. visa. Individuals who have even a small discrepancy between the name listed on their passport and their U.S. visa may experience issues with Departments of Motor Vehicles or other state/local agencies, if they are required to present passport and I-94 documents on which their name is an exact match. (Note that there is no such requirement for employers completing I-9 forms – I-9s can be properly completed as long as passport and I-94 both reasonably appear to relate to the individual presenting the documents. Minor name discrepancies between documents are acceptable.)

 

 

 

U.S. Customs and Border Protection (CBP) has officially announced its intent to eliminate its use of paper I-94 arrival/departure cards, now given to temporary foreign visitors and workers at the time of their admission to the United States. Instead of giving paper I-94 admission cards to foreign travelers, an I-94 record of admission will automatically be created and electronically attached to each traveler’s identity.

CBP will still stamp foreign travelers’ passports at entry, and annotate the stamp with the class of admission and the period of authorized stay. I-94 admission data will also be accessible and printable through an Internet portal, which can be accessed by travelers at http://www.cbp.gov/I94.

CBP reports that the web portal for accessing electronic I-94 information will require multiple data points to log in and view admission data, including the following:

  • Traveler’s name as listed on their passport or U.S. visa;
  • Passport number;
  • Country of citizenship;
  • Date of birth;
  • Date of entry;
  • Place of entry.

Initially, to implement I-94 automation, CBP will begin to stop issuing paper I-94 cards in late April 2013 to travelers arriving by air and sea at certain Ports of Entry. The initiative will be rolled out in phases by region, with the following key provisions:

  • Week 1, beginning April 30, 2013, I-94 automation at airports will occur at Chicago O’Hare, Miami, Charlotte, Orlando and Las Vegas.
  • Week 2, beginning May 07, 2013, I-94 automation is expected at other major airports, including New York, Newark, Boston, Philadelphia, Baltimore/Washington, Detroit and Houston.
  • I-94 automation is expected to be phased into operations at West Coast airports and seaports—including Seattle, Portland, Los Angeles, San Francisco, Hawaii and Alaska— during the week of May 14, 2013.
  • At land border Ports of Entry in Canada and Mexico, temporary visitors and workers entering the United States, will continue to be issued paper I-94 cards until further notice.
  • Individuals in a few select categories of admission, such as asylees and refugees, will continue to be issued paper I-94 cards no matter where they enter the United States.

This change stands to have a wide-ranging impact on both foreign nationals and U.S. businesses. I-94 admissions records are critically important, as they prove foreign nationals’ authorized status and period of stay in the country, and are routinely relied on by federal, state and local government agencies to issue driver’s licenses, Social Security numbers and other documents needed for individuals to live and work in the United States. In turn, these U.S. identity documents are often necessary to facilitate U.S. employment.

I-94 admissions records in the post-paper era will present new challenges and problems as glitches in the new data integration systems are exposed. Accordingly, Human Resources professionals and foreign workers alike should become familiar with the I-94 elimination initiative to attempt to avoid common points of confusion. Lane Powell has published a set of Questions and Answers with more detailed information about I-94 automation and its impact on foreign nationals and U.S. businesses. CBP has also published a press release and a fact sheet regarding this policy change on its website.

 

 

 

 

 

Employers must begin using the new version of Form I-9.  On March 7, 2013, U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS) announced publication of a revised Form I-9 for Employment Eligibility Verification, effective March 8, 2013.  Employers are required to use the Form I-9 to verify the identity and employment authorization eligibility of employees. 

Changes to the Form

There now are six pages of instructions, and one page with acceptable “List A, B, and C” type documents that the employee may present.  The Form contains several changes, including the following:

The form now has two pages to complete; page one is for the employee to complete, while fields for information about documents reviewed and for the employer certification are on page two.   A warning on the bottom of page 1 — “STOP.  Employer Completes Next Page” – is designed to ensure that the employer does not overlook the second page.

  • Fields for additional data have been added:
    • “Other Names Used” (The “maiden name” field is gone.)
    • Boxes to fill for the Social Security number, instead of an open text field. (The instructions clarify that providing a Social Security Number is optional, unless the employer uses E-Verify, in which case the number must be added to the I-9.)
    • Employee e-mail address and telephone number (The instructions clarify that this information is optional, but that if it is provided, DHS may contact the employee in the event of a mismatch with Social Security records.)
    • “USCIS Number” (Though listed as an alternative to the “Alien Registration Number,” it is the same number.)
    • “Form I-94 Admission Number,” issued by Customs and Border Protection (CBP) on entry to the U.S. – required only if it appears on a work authorization document
    • Foreign passport information
    • On page 2, a field for employee name from Section 1
    • A third set of fields for “List A” identity and employment authorization document information
    • In the “Certification” section, specification that the employee representative is attesting to the following:
      • I have examined the document(s) presented by the above-named employee;
      • The above-listed document(s) appear [sic] to be genuine and to relate to the employee named, an
      • To the best of my knowledge the employee is authorized to work in the United States.
    • Boxes for 3-D Barcode – the purpose of these fields are not described.

The revised form clarifies the timeframe for completion, indicating that “Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, but not before accepting a job offer.” 

60-Day Grace Period

Employers are instructed to use the revised Form I-9 beginning March 8, 2013, as indicated by the designation on the bottom, “Form I-9 03/08/13 N.”  Prior versions of the form (Rev. 08/07/09) and (Rev. 02/02/2009) no longer are available on the USCIS website.  However, within the 60-day period after March 8, that is, to May 7, 2013, employers who use the prior version of the Form are not subject to penalties under the Immigration and Nationality Act, § 274A.

Applicability

As indicated on the instructions, the Form is required for newly hired employees.  When rehiring an employee within three years of the date Form I-9 was originally completed, employers have the option to complete a new Form I-9 or complete Section 3 of the previously completed form. 

Document Retention

Regarding document retention, the form instructions indicate that employers may, but are not required to, photocopy documents employees present for completion of the Form I-9, but that photocopies must be retained and presented with Form I-9 in case of an inspection by DHS or other federal government agency.

This week, both President Obama and the Senate announced frameworks for comprehensive immigration reform.  The following is a comparison of key elements in each of the plans.

Path to Citizenship

Similarities:  Neither plan permits a direct route to citizenship.  A foreign national must first become a permanent resident with a “green card,” and then wait, usually for three to five years more, before being eligible to apply for U.S. citizenship. 

Differences:  The Senate would create a commission of lawmakers and border-state leaders to assess when border-security measures have become effective.  Until then, the path would be closed.  However, before then, undocumented immigrants could remain in the United States lawfully by registering, passing background checks, being able to speak English, and paying back taxes and fines for their probationary legal status.

The Obama plan does not establish any border-assessment commission.  It offers provisional legal status and a green card under similar terms as the Senate:  registration, background checks, speaking English, and payment of fees and penalties.  Immigrants on provisional legal status would not be eligible for welfare or other federal benefits.  They would need to get in line for permanent residency and earned citizenship behind others already in the system.

Investors and Highly Skilled Immigrants

Similarities:  Both plans would award green cards to immigrants who obtain advance degrees in science, technology, engineering or math (STEM) from U.S. universities.

Differences:  The Obama plan would create a new category for highly skilled foreign workers in federal science and technology labs.  The Obama plan would create a start-up visa category for job-creating entrepreneurs, and it would expand visa opportunities for those who invest in the United States.

Agricultural Workers

Similarities:  Both plans would permit farm workers in the country without proper documentation to have a path to citizenship. 

Differences:  The Senate plan also would create an agricultural worker program and allow employers to hire immigrants if they can demonstrate that American workers aren’t available.

Same-Sex Couples

Differences:  The Obama plan would allow U.S. citizens and permanent residents to sponsor a same-sex partner for permanent resident status and temporary visas. 

Employment Verification

Similarities:  Both plans would mandate tha employers use electronic employment verification, such as E-Verify, for prospective workers – U.S. and foreign citizens alike – to demonstrate legal status and identity.

Differences:  The Obama plan would have exemptions for some small businesses.  It also would create a fraud-resistant social security card and non-forgeable documents for those without social security cards.

Under the North American Free Trade Agreement (NAFTA), Canadians with certain specified occupations may work in the United States under the Trade NAFTA (TN) classification.  Previously, all first-time, initial TN applications had to be submitted to Customs & Border Protection (CBP) immigration officers at the U.S.-Canada border or certain airports in Canada.  This resulted in unpredictability as to whether Canadian professionals would be granted TN status or turned away for legitimate or subjective reasons.  Advance adjudication was not an option.  Now, as of October 1, 2012, a new option adds predictability to the process.  U.S. employers seeking to hire Canadian professionals under NAFTA may mail the petitions in advance to a U.S. Citizenship & Immigration Services (USCIS) processing center in the United States for a decision.  CBP has indicated they will accept the USCIS TN approval notices without challenge, except in the case of fraud or changed circumstances.  This pre-adjudication option is not available for Canadian entities sending a Canadian employee to work at a U.S. entity which does not hire the Canadian directly.  Under such circumstances, the Canadian still must present himself or herself at the port of entry for CBP immigration officer adjudication.  This development is part of the Beyond the Border Action Plan under a joint U.S.-Canada initiative.

On Friday, June 15, 2012, Secretary of Homeland Security Janet Napolitano issued a Memorandum stating that DHS would shortly grant a temporary immigration status called “deferred action” to certain young people who were brought to the United States as children and “know only this country as home.” Some news articles about the new policy implied that these young people could enlist in the US Armed Forces. Enlistment in the military, however, is not currently a viable option for persons affected by the announcement–although military enlistment is allowed in the DREAM Act. Furthermore, Secretary Napolitano cannot authorize anyone to enlist in the US Armed Forces–except perhaps the Coast Guard, one of the five Armed Forces and the only Armed Force that is part of the Department of Homeland Security.  Thus, the Memorandum will not help those DREAM Act beneficiaries who have sought to join the US Armed Forces.

Unauthorized immigrants are not currently allowed to enlist in the US Armed Forces voluntarily (although they may be drafted, if there is a military draft). People with work permits or “deferred action” are likewise currently ineligible for voluntary enlistment. The announcement by DHS does not change the military enlistment law found at 10 United States Code § 504.  This law limits military enlistments to US citizens; US nationals; lawful permanent residents; certain lawfully present persons from Palau, Micronesia, and the Republic of the Marshall Islands; and certain other persons whose enlistment has been determined by a Service Secretary to be “vital to the national interest.” No Service Secretary has to date authorized the enlistment of people who have merely been granted “deferred action.”

While it is possible that a Service Secretary might someday authorize the enlistment of a person with “deferred action” and a work permit, that has not yet happened. The DHS Memorandum did not expand the categories of non-citizens who are eligible to enlist in the US Armed Forces (which include the Army, Navy, Marines, Air Force, and Coast Guard, and their associated Reserve Components, including the National Guard).

The DHS Memorandum does state that “honorably discharged veterans” who are “not above the age of 30” and who were “present in the United States” on June 15, 2012 are eligible for deferred action under the terms of the new DHS policy. Presumably, an “honorably discharged veteran” would be anyone who served honorably–including veterans who have honorable discharges, entry-level discharges characterized as honorable,  or general discharges under honorable conditions. Because most honorably discharged veterans who are not above age 30 and meet the Memorandum’s other requirements are eligible for naturalization under Immigration and Nationality Act § 329, however, few will likely need deferred action through the plan announced by Secretary Napolitano. Any honorably discharged veteran who has questions about his or her eligibility for naturalization should see a competent immigration attorney for details about the military naturalization process.

 

Immigration Law and the Military    Margaret Stock, Counsel to the Firm in the Anchorage, Alaska office, has published a new book, Immigration Law and the Military, which is available from the American Immigration Lawyers Association publications website.  The book describes the laws, regulations, and policies that apply to non-citizens serving in the United States military, as well as the foreign family members of US military personnel.  The book has chapters on the application of Selective Service laws to noncitizens, citizenship-related criteria for enlistment, military naturalization procedures, the immigration consequences of military disciplinary proceedings and courts-martial, and security clearance issues.  Readers will be interested in the section on the Military Accessions Vital to the National Interest (MAVNI) program, which allows certain legally-present noncitizens to join the US military and obtain US citizenship on an expedited basis.  A complete chapter is devoted to the process of applying for “parole in place” for non-citizen family members of US military members.

The book has an extensive index that provides updated materials on all these issues, including helpful checklists and copies of policy memoranda and other official materials that are difficult to find at a law library in online legal research services.