United States: Important Recent Developments In Business Immigration Law

Consulates Now Requesting Social Media Information From Visa Applicants

A new State Department policy requires all U.S. visa applicants to submit information about social media accounts (such as Facebook, Twitter or Instagram) they have used within the past five years. The policy requires visa applicants to identify which platforms they use and to provide their username for each. Providing this account information gives the State Department access to photos, locations, dates of milestones and other personal data commonly shared on such social media platforms. Additionally, under the new policy, all visa applicants must list any previous email addresses and phone numbers used in the previous five years (if applicable), in addition to their current email address and phone number.

While the State Department has used social media information in visa adjudications since mid-2017, until now foreign nationals were not required to provide their use history unless they were deemed by a U.S. consulate to pose a heightened security concern.

In order to avoid processing delays, please advise any employees applying for visas to gather social media and past contact information before starting a DS-160 nonimmigrant visa application. Moreover, you may wish to advise your employees to be careful what they post.

Social Security No-Match Letters Are Back

The Social Security Administration (SSA) has confirmed it has resumed issuing “No-Match Letters.” Officially called Employer Correction Requests, No-Match Letters are being sent to businesses that are identified as having an employee with a name and Social Security number (SSN) combination submitted on a Form W-2 that does not match SSA records. (Employers may recall receiving these notices for several years through 2012, when the Obama administration suspended these communications.)

Employers should not assume that a No-Match Letter is proof of an employee’s unauthorized status. In fact, taking adverse employment action based solely on receipt of a No-Match Letter may violate state and federal laws prohibiting discrimination based on national origin, citizenship or another protected class. However, employers receiving No-Match letters must take proper steps to address the SSA’s request. Upon receipt of a No-Match Letter, an employer should check the reported no-match information against its personnel records. If the discrepancy cannot be resolved upon review of the records, the employer should inform the employee of the letter and ask the employee to confirm his or her name and SSN. If the discrepancy still exists, you should advise the employee, in writing, to contact the SSA to correct and/or update his or her SSA records, and give the employee a reasonable period of time to resolve the issue. You should then submit the corrections to the SSA. If the employee does not respond or act to resolve the issue, please contact us to discuss next steps.

An employer’s failure to address a No-Match Letter or failure to follow up with an employee and their progress toward resolving the no-match could lead to a finding by Immigration and Customs Enforcement (ICE) of an employer’s constructive knowledge of employing unauthorized workers — a finding which could lead to significant penalties. Therefore, if you receive a No-Match Letter, please be sure to address the issue as quickly as possible.

Please contact us if you have any questions about No-Match Letters or if you wish to discuss appropriate No-Match Letter or Form I-9 compliance procedures.

Significant Visa Processing Delays for Chinese Nationals

Chinese nationals applying for H-1B visas (and other types of visas) at U.S. consulates abroad are reporting significant delays in processing times. In particular, Chinese nationals with educational and/or experiential backgrounds in technology are having their visa applications placed in “administrative processing” — meaning that they are being held for closer review, including enhanced security checks. These applicants are also being asked to submit additional information, including copies of resumes and lists of any published research (even if their job doesn’t include the published research). Following submission of the additional requested information, it can take the consulate several weeks or longer to complete their review, issue the visa and return the applicant’s passport.

Given these delays in visa processing, you may wish to advise your Chinese national employees with technology backgrounds who are in H-1B status, and who would need to apply for an H-1B visa on their next trip abroad, to delay any upcoming international travel unless it’s absolutely necessary. If international travel does become necessary, they should be prepared to submit additional evidence (such as copies of resumes and lists of publications) if asked to do so, and should also be prepared to wait several weeks or longer following their interview for issuance of their visas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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