USCIS has provided an update on its recently announced policy regarding pending FBI background checks. Typically, no I-485 application for permanent residence can be approved until a definitive FBI fingerprint check, FBI name check, and Interagency Border Inspection Services (IBIS) name check have been completed and resolved favorably. In many instances, applications for permanent residence have been pending for years due to a pending FBI name check.

In response to this delay, USCIS will begin adjudicating all I-485 applications for permanent residence that are outside of normal processing times and are otherwise approvable, except that an FBI name check request has been pending for more than 180 days. USCIS is aware of approximately 47,000 applications for permanent residence that are otherwise approvable but have a name check pending. These cases will be subject to processing under the new policy and USCIS anticipates that all processing should be complete by mid-March 2008. Our office has already seen approvals on cases where the FBI name check has been pending for several years, so the policy does seem to be working. Applications will still not be approved until the FBI fingerprint check and IBIS name check have been resolved favorably. In some instances, applicants' fingerprints may have expired, so new biometrics appointments will be scheduled. In the event the Department of Homeland Security (DHS) receives adverse information from the FBI name check after the I-485 has been approved, DHS reserves the right to detain the applicant and initiate removal proceedings.

USCIS has asked that any persons possibly affected by this new policy wait until March 10, 2008, before inquiring about their cases. We continue to monitor I-485 cases affected by this policy and will take appropriate action to ensure that relevant pending cases are adjudicated in a timely manner. In the meantime, please feel free to contact us should you have questions or concerns about how the new FBI name check policy affects you or your foreign national employees with pending permanent residence applications.

New Employment Verification Bill Introduced

A new employment verification bill, the New Employee Verification Act (NEVA), was introduced by Representative Sam Johnson from Texas last week. Several organizations representing HR professionals support the bill, which aims to provide a mandatory federal electronic employment verification system by replacing the current paper-based method of verifying employment eligibility through use of the Form I-9.

NEVA would eliminate the Form I-9 and would require employers to use the new paperless Electronic Employment Verification System (EEVS). Employers would confirm eligibility by entering employee data through their state's "new hire" reporting program, an electronic portal already in place and used for child support enforcement. Under the EEVS, work authorization for U.S. citizens would be conducted through the Social Security Administration (SSA). Non-citizens would be verified through the Department of Homeland Security (DHS).

Use of the current electronic verification system, E-Verify, is mandatory in some states and optional in others. The E-Verify system relies on data contained in SSA and DHS databases and has been widely criticized for being fraught with database errors. EEVS would also rely on SSA and DHS databases, but NEVA would require that the databases be "cleaned up" to ensure that data in the systems is accurate and up to date. NEVA would also require consultation with a panel of public- and private-sector experts in designing the EEVS system and would require annual reporting on the system's performance.

Another provision of NEVA allows employers to use the Secure Electronic Employment Verification System (SEEVS) for the verification process. The SEEVS would be operated by government-certified, private-sector companies. The companies would provide identity authentication for newly hired employees through background screening verification techniques, safeguard their identity through biometric technology (such as a fingerprint or eye scan), and confirm work authorization through EEVS.

The bill provides some safe-harbor provisions for employers. It exempts employers who commit a violation of the law if it is the first violation and the employer properly used EEVS. In addition, reliance on a government approval of employment through either the EEVS or SEEVS system absolves the employer of liability if the government approval later turns out to be erroneous.

With authorization for the current E-Verify system set to expire in October 2008, it is expected that NEVA will be much-discussed in the coming months among both professionals and lawmakers.

We continue to monitor the status of employment eligibility verification requirements and will update you with the latest developments. In the meantime, please feel free to contact us with any questions you might have regarding current I-9 requirements, the E-Verify program or the I-9 process in general.