USCIS Introduces New U.S. Passport Photo Matching For E-Verify

On October 4, the U.S. Citizenship and Immigration Services ("USCIS") hosted a webinar for employers to introduce the latest improvement to the E-Verify system, the addition of U.S. Passports and Passport Cards (collectively, "Passports," and individually, a "Passport") to the photo-matching process.


Photo matching is a feature of E-Verify that allows an employer to compare a newly hired employee's Employer Authorization Document ("EAD") or Permanent Resident Card ("Green Card") to the image of the card stored in the database of the U.S. Department of Homeland Security ("DHS"). However, this feature may be used only after: (i) the employee has attested to being a lawful permanent resident and/or authorized to work in the United States; (ii) the employee presents a newer version of a Green Card or EAD at his or her own initiative; (iii) E-Verify has confirmed the employee's employment eligibility; and (iv) any Tentative Nonconfirmations ("TNC") from the Social Security Administration or USCIS have been resolved. The present photo-matching process does not currently have the capability to verify the authenticity of older green cards, older EAD cards, or any of the other identification documents that an employee may present when completing the I-9 process.


Although part of E-Verify's overall photo-matching process, the photo-matching process for Passports has some key differences compared to the photo-matching process used for Forms I-751 (Green Cards) and I-766 (EADs). For example, one difference involves when to display a TNC case result. With the photo-matching process for Passports, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves the TNC, E-Verify will require the employer to complete the photo-matching step before displaying a case result. In the photo-matching process for Green Cards or EADs, if the employee presenting a Passport receives a TNC before the photo-matching step and then resolves it, the employer must display the case result immediately before moving forward with the photo-matching step. Additionally, it is very possible that E-Verify may not be able to access the employee's photo during the photo-matching process. If this occurs during the Green Card or EAD photo-matching process, the system will simply bypass the photo-matching screen altogether. However, during the Passport photo-matching process, the system will provide a "No Photo on this Document" message and employers must proceed with the process.


Another interesting difference is that, when photo matching Green Cards or EADs, E-Verify will display a thumbnail photo when viewing the case details. This, however, is not the case for Passports because the USCIS is not able to store Passport photos. Yet, E-Verify will display a thumbnail photo that an employer may attach and submit when referring a photo mismatch TNC to DHS. E-Verify will display this thumbnail photo whether the document is a Green Card, an EAD, or a Passport.


As of April 3, 2009, for employment verification (Form I-9) purposes, employees must present an unexpired Passport. E-Verify will now enforce this rule by looking to determine if the "hire date" is on or after April 3, 2009. If the hire date is before April 3, 2009, the system will accept an expired Passport (good news for federal contractors needing to submit older I-9 forms showing valid passports at the time). If the hire date, however, is on or after April 3, 2009, an error message will appear and the case will be automatically discontinued. The employer's only option is to create a new E-Verify case.

Orlando's Lake Buena Vista & Spa Resort Designated First EB-5 "Regional Center" in Florida by USCIS

The EB-5 program was created by Congress as part of the Immigration and Nationality Act (“INA”) of 1990. Under section 203(b)(5) of the INA, 10,000 immigrant investor visas (green cards or EB-5 visas) per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas available annually, 5,000 are set aside for those who apply under a pilot program involving a designated “Regional Center.” There are more than 20 such designated EB-5 programs nationwide. “Regional Center” is an entity, organization or agency that has been approved as such by the U.S. Citizenship and Immigration Service (“USCIS”). “Regional Center” designation focuses on a specific geographic area within the United States and seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment. The Lake Buena Vista Resort Village & Spa Resort has become Florida’s first designated EB-5 Regional Center by USCIS. The designation, known as the “EB-5” immigrant investor program, allows foreign nationals to become lawful permanent residents (LPR or green card holders) of the United States by investing at least a $1 million in a project that creates at least 10 jobs. Lake Buena Vista & Spa Resort plans to build 1,300 condo-hotel units. The resort is planned for 1,875 furnished resort condo units ranging from 1,080-2,170 square feet, along with dining, a fitness center, spa-salon, aquatic center, and other amenities. The EB-5 program will help to finance the construction of a new 152-unit building at the resort.


On August 8, 2008, USCIS issued a statement informing the public that the new U.S. Passport Card may be used in the Employment Eligibility Verification form (I-9) process. USCIS also stated that "...last month, the Departments of State and Homeland Security announced that the new passport card was in full production. The new card provides a less expensive and more portable alternative to the traditional passport book, and will expedite document processing at United States land and sea ports-of-entry for U.S. citizens traveling to Canada, Mexico, the Caribbean, and Bermuda. While the new card is more limited in its uses for international travel (e.g., it may not be used for international air travel), it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I-9 process and can also be accepted by employers participating in the E-Verify program." USCIS states that the passport card is considered a “List A” document that may be presented by newly hired employees during the employment eligibility verification process to show work authorized status. “List A” documents are those used by employees to prove both identity and work authorization when completing the Form I-9.

AILA-USCIS Update on Two-Year EAD Processing

The American Immigration Lawyers Association ("AILA") recently stated that "USCIS had previously announced that they would begin to issue 2-year EAD cards for some adjustment applicants under 8 C.F.R. §274a.12(c)(9). USCIS has provided AILA liaison with additional clarifications regarding eligibility for the 2-year card: 1)USCIS will review the issue of visa retrogression at the time the I-765 application is filed. However, if the priority date is current as of the date of filing, but later retrogresses while the I-765 application is pending, USCIS has the discretion to review the case again and issue the 2-year EAD. If the priority date is backlogged as of the date of filing, but later becomes current while the I-765 is pending, USCIS also has the discretion to review the case again and issue a 1-year EAD, and  2) in order to be eligible for a 2-year EAD card on a concurrently-filed adjustment of status application, the I-140 petition must be approved. If the I-140 is still pending, USCIS will only issue a 1-year EAD card." More clarifications on this subject coming up.  I will keep you posted.

New Employment Verification I-9 Form

Today we received the new employment verification From I-9, edition date 06/16/08. Be aware that no previous edition of the same form will be accepted. Please, also note there are several important changes made to the Form I-9 process:

  • Five documents have been removed from List A of the List of Acceptable Documents: Certificate of U.S. Citizenship (Form N-560 or N-561), Certificate of Naturalization (Form N-550 or N-570), Alien Registration Receipt Card (I-151), Unexpired Reentry Permit (Form I-327), Unexpired Refugee Travel Document (Form I-571);
  • One document was added to List A of the List of Acceptable Documents: Unexpired Employment Authorization Document (I-766);
  • All Employment Authorization Documents with photographs have been consolidated as one item on List A: I-688, I-688A, I-688B, I-766;
  • Instructions regarding Section 1 of the Form I-9 now indicate that the employee is not obliged to provide his or her Social Security number in Section 1 of the Form I-9, unless he or she is employed by an employer who participates in E-Verify;
  • Employers may now sign and retain Forms I-9 electronically. See instructions on page 2 of the Form I-9.

All employers in Florida should switch to the new form ASAP and used moving forward regardless of any time line provided by the government.  This Will avoid any confusion later on.  The new Form I-9 can be downloaded by clicking here.

U.S. District Judge States Social Security Card Might Not Be Legal ID In Pilgrims Pride Immigration Case

On July 7, 2008, the Chattanooga Times/Free, reported that “a federal judge has suggested that when two men used false Social Security cards to gain employment at the local Pilgrim's Pride plant, they might not have technically broken the law.” Further, the Chattanooga Times/Free goes on to state that “U.S. District Judge Harry S. Mattice’s revelation that Social Security cards are not necessarily valid forms of identification, however, sent the defense back to the drawing board with no complaints from the federal government. Judge Mattice recalled a 2003 case in which the government prosecuted Tyson Foods for hiring illegal immigrants. In that case, U.S. District Judge R. Allan Edgar dismissed certain charges with regard to the use of a Social Security card, ruling that a certain section of U.S. immigration law does not list the document as a valid form of I.D. ‘This is an issue that will have to be decided by a higher court,’ Judge Mattice said. ‘I'm not sure you can base this charge on a false Social Security card.’ ” Although it is too early to tell, if Federal District Judge Mattice’s conclusions were to be upheld in the end by a higher court, this could impose a significant roadblock for I-9 enforcement.