On 10/28/09, President Obama signed into law the FY10 Department of Homeland Security Appropriations bill (P.L.111-83).
The law extends the non-minister religious worker (section 568), the "Conrad 30" (section 568), the EB-5 visa (section 548), and the E-Verify (section 547) programs through September 30, 2012.
The law also includes statutory authority for USCIS to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).
The bill was previously approved by the House of Representatives on 10/15/09 by a 307-114 roll call vote, and by the Senate on 10/20/09 by a 79-19 vote."
AILA InfoNet Doc. No. 09102968 (posted Oct. 29, 2009)
Tuesday, November 3, 2009
From AILA Infonet: "Obama Signs FY10 DHS Spending Bill; Four Immigration-Related Programs Extended through 2012
Monday, October 19, 2009
No-Match Rescission Leaves Matter in Limbo
by Charles M. Miller
The Department of Homeland Security has rescinded its 2007 No-Match regulation (72 Fed. Reg. 45611•45624 (Aug. 15, 2007)), leaving U.S. employers wondering if the Social Security Administration has plans to resume no-match letters, and if so, what steps to take to protect their companies from DHS charges of constructive knowledge IRCA violations.
The no-match regulation had changed the legal obligations of an employer when receiving a no-match letter from the SSA or a notice of suspect documents letter from
ICE. The rule had amended the definition of constructive knowledge to include receipt by an employer of a no-match letter from Social Security Administration (SSA) or a notice from DHS, with a potential finding that the employer had constructive knowledge that it was employing an alien not authorized to work in the United States. The rule also described the three "safe harbor" steps that the Department of Homeland Security (DHS) considered to be a reasonable response by an employer to receipt of a no-match letter. Employers with knowledge that their employees are not authorized to work in the US are liable for both civil and criminal penalties under the Immigration Reform and Control Act of 1986 (IRCA).
Employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) with the employee’s name and social security number (SSN). The previous No-Match procedure was that if the W-2 information that the employer submitted did not match SSA records, the SSA sent an “Employer Correction Request” also referred to as a “code v” or “no-match” letter, informing the employer of the discrepancy. When the SSA was unable to match an employee’s name and Social Security Number (SSN) from the W-2 with its own records, the employee’s earnings were posted to SSA’s Earnings Suspense File until that employee’s data matched with SSA records.
A no-match situation occurred for a variety of causes including clerical error and name changes. One of the causes of a no-match situation is the submission of information for an alien who is not an authorized U.S. worker and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien. ICE may send a similar letter (Notice of Suspect Documents) during an I-9 audit if that agency is unsuccessful at confirming in DHS records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person.
No-match letters had become an issue in worksite enforcement actions and federal prosecutions. Employers who had received “no-match letters” that represented a high percentage of their total workforce, faced constructive knowledge criminal and civil penalties. The sheer numbers of the no-match letters sent out to employers caused the DHS to consider this rulemaking to enhance the responsibilities of the affected employers. SSA indicated that in 2004, 138,000 no-match letters were sent to employers. The large scale of the no-match situation can be measured by the SSA’s Earning Suspense File (ESF), an electronic fund constituted of earnings that cannot be matched to the accounts of workers. In 2006, the ESF had cumulatively grown to approximately $586 billion. Steve Schaeffer, Assistant Inspector General for the Office of Audit, Social Security Administration Office of the Inspector General, Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means, June 7, 2007; http://waysandmeans.house.gov/hearings.asp?formmode=view&id=6094.
In the AFL-CIO v Chertoff litigation concerning the DHS rulemaking, the District Court in the Northern District of California had issued a preliminary injunction to stay the effect of the DHS no-match safe-harbor final rule. In that preliminary injunction order decision, Judge Breyer indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for tax year 2007. SSA had indicated that it did not send out no-match letters for tax years 2005 and 2006.
The DHS notice leaves employers with uncertainty as to what actions they should take if, and when, SSA resumes issuing the No-Match letters.
An SSA resumption of the No-Match letters will see immigration counsel return to the advice we were giving prior to the 2007 rule that DHS rescinded. But that's for another post.
The Department of Homeland Security has rescinded its 2007 No-Match regulation (72 Fed. Reg. 45611•45624 (Aug. 15, 2007)), leaving U.S. employers wondering if the Social Security Administration has plans to resume no-match letters, and if so, what steps to take to protect their companies from DHS charges of constructive knowledge IRCA violations.
The no-match regulation had changed the legal obligations of an employer when receiving a no-match letter from the SSA or a notice of suspect documents letter from
ICE. The rule had amended the definition of constructive knowledge to include receipt by an employer of a no-match letter from Social Security Administration (SSA) or a notice from DHS, with a potential finding that the employer had constructive knowledge that it was employing an alien not authorized to work in the United States. The rule also described the three "safe harbor" steps that the Department of Homeland Security (DHS) considered to be a reasonable response by an employer to receipt of a no-match letter. Employers with knowledge that their employees are not authorized to work in the US are liable for both civil and criminal penalties under the Immigration Reform and Control Act of 1986 (IRCA).
Employers send the Social Security Administration (SSA) earnings reports (W-2 Forms) with the employee’s name and social security number (SSN). The previous No-Match procedure was that if the W-2 information that the employer submitted did not match SSA records, the SSA sent an “Employer Correction Request” also referred to as a “code v” or “no-match” letter, informing the employer of the discrepancy. When the SSA was unable to match an employee’s name and Social Security Number (SSN) from the W-2 with its own records, the employee’s earnings were posted to SSA’s Earnings Suspense File until that employee’s data matched with SSA records.
A no-match situation occurred for a variety of causes including clerical error and name changes. One of the causes of a no-match situation is the submission of information for an alien who is not an authorized U.S. worker and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien. ICE may send a similar letter (Notice of Suspect Documents) during an I-9 audit if that agency is unsuccessful at confirming in DHS records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person.
No-match letters had become an issue in worksite enforcement actions and federal prosecutions. Employers who had received “no-match letters” that represented a high percentage of their total workforce, faced constructive knowledge criminal and civil penalties. The sheer numbers of the no-match letters sent out to employers caused the DHS to consider this rulemaking to enhance the responsibilities of the affected employers. SSA indicated that in 2004, 138,000 no-match letters were sent to employers. The large scale of the no-match situation can be measured by the SSA’s Earning Suspense File (ESF), an electronic fund constituted of earnings that cannot be matched to the accounts of workers. In 2006, the ESF had cumulatively grown to approximately $586 billion. Steve Schaeffer, Assistant Inspector General for the Office of Audit, Social Security Administration Office of the Inspector General, Testimony Before the Subcommittee on Social Security of the House Committee on Ways and Means, June 7, 2007; http://waysandmeans.house.gov/hearings.asp?formmode=view&id=6094.
In the AFL-CIO v Chertoff litigation concerning the DHS rulemaking, the District Court in the Northern District of California had issued a preliminary injunction to stay the effect of the DHS no-match safe-harbor final rule. In that preliminary injunction order decision, Judge Breyer indicated that SSA had been prepared to send 140,000 letters concerning 8 million employees for tax year 2007. SSA had indicated that it did not send out no-match letters for tax years 2005 and 2006.
The DHS notice leaves employers with uncertainty as to what actions they should take if, and when, SSA resumes issuing the No-Match letters.
An SSA resumption of the No-Match letters will see immigration counsel return to the advice we were giving prior to the 2007 rule that DHS rescinded. But that's for another post.
Tuesday, September 29, 2009
EEOC Brings 4 National Origin Discrimination Cases
The EEOC has recently announced 4 new national origin-related lawsuits against employers:
EEOC Files Class National Origin Harassment Suit Against Hilton Hotel in Chicago Suburb (September 28, 2009)
The Redwoods in Yosemite Sued by EEOC for Unlawful Treatment of Hispanic Employees (September 25, 2009)
Immokalee Packing Companies Sued by EEOC for Discriminating Against Haitians (September 25, 2009)
Knouse Foods Sued by EEOC for Sexual and National Origin Harassment and Retaliation (September 22, 2009)
The EEOC is responsible for enforcing all federal equal employment opportunity and workplace discrimination. The EEOC protects U.S. workers from employment discrimination regardless of citizenship or work authorization status.
The Office of Special Counsel has jurisdiction over national origin discrimination involving employers of 4 to 14 employees, while the EEOC has jurisdiction over complaints concerning national origin employment discrimination concerning employers of 15 or more individuals under Title VII of the Civil Rights Act of 1964.
EEOC Files Class National Origin Harassment Suit Against Hilton Hotel in Chicago Suburb (September 28, 2009)
The Redwoods in Yosemite Sued by EEOC for Unlawful Treatment of Hispanic Employees (September 25, 2009)
Immokalee Packing Companies Sued by EEOC for Discriminating Against Haitians (September 25, 2009)
Knouse Foods Sued by EEOC for Sexual and National Origin Harassment and Retaliation (September 22, 2009)
The EEOC is responsible for enforcing all federal equal employment opportunity and workplace discrimination. The EEOC protects U.S. workers from employment discrimination regardless of citizenship or work authorization status.
The Office of Special Counsel has jurisdiction over national origin discrimination involving employers of 4 to 14 employees, while the EEOC has jurisdiction over complaints concerning national origin employment discrimination concerning employers of 15 or more individuals under Title VII of the Civil Rights Act of 1964.
Thursday, September 17, 2009
Federal Contractor E-Verify Requirement Goes Forward
by Charles M. Miller, co-author of Immigration Law in the Workplace
On September 9, 2009 the Fourth Circuit Court of Appeals denied the plaintiffs’ motion for a injunction that would have suspended the FAR E-Verify rule during the pendency of the appeal. Five days earlier the District Court in Maryland had denied a similar emergency motion.
On December 23, 2008, the United States Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the executive branches’ authority to change key provisions of the Immigration and Nationality Act. Chamber of Commerce of the United States of America, et al. v. Chertoff, et al.,08-cv-03444-AW (D.C. M.D. 2008).The District Court in Maryland ruled in favor of the Federal Government defendants, resulting in the appeal to the Fourth Circuit Court of Appeals.
The final rule requires the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract, a requirement which began September 8, 2009. The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). It covers subcontractors if the prime contract includes the clause.
The rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. It exempts those contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services; contracts of less than the simplified acquisition threshold ($100,000); contracts less than 120 days; and contracts where all work is performed outside the United States. Those employees who normally perform support work, such as indirect or overhead functions and do not perform any substantial duties applicable to the contract, are excluded from coverage.
The USCIS, the agency with primary authority over the E-Verify program has issued the E-Verify Supplemental Guidance for Federal Contractors which supplements the E-Verify Users Manual.
Congress will take up the funding and authorization extension of the E-Verify program, which is set to expire September 30, 2009. It is uncertain whether E-Verify will again be authorized for a limited number of years or be authorized as a permanent program.
On September 9, 2009 the Fourth Circuit Court of Appeals denied the plaintiffs’ motion for a injunction that would have suspended the FAR E-Verify rule during the pendency of the appeal. Five days earlier the District Court in Maryland had denied a similar emergency motion.
On December 23, 2008, the United States Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the executive branches’ authority to change key provisions of the Immigration and Nationality Act. Chamber of Commerce of the United States of America, et al. v. Chertoff, et al.,08-cv-03444-AW (D.C. M.D. 2008).The District Court in Maryland ruled in favor of the Federal Government defendants, resulting in the appeal to the Fourth Circuit Court of Appeals.
The final rule requires the insertion of the E-Verify clause into applicable federal contracts, committing government contractors to use E-Verify for their new hires and all employees (existing and new) assigned to a given federal contract, a requirement which began September 8, 2009. The rule requires the insertion of the E-Verify clause for prime federal contracts with a period of performance longer than 120 days and a value above the simplified acquisition threshold ($100,000). It covers subcontractors if the prime contract includes the clause.
The rule extends the E-Verify requirement to subcontracts for services or for construction with a value over $3,000. It exempts those contracts that include only commercially available off-the-shelf (COTS) items (or minor modifications to a COTS item) and related services; contracts of less than the simplified acquisition threshold ($100,000); contracts less than 120 days; and contracts where all work is performed outside the United States. Those employees who normally perform support work, such as indirect or overhead functions and do not perform any substantial duties applicable to the contract, are excluded from coverage.
The USCIS, the agency with primary authority over the E-Verify program has issued the E-Verify Supplemental Guidance for Federal Contractors which supplements the E-Verify Users Manual.
Congress will take up the funding and authorization extension of the E-Verify program, which is set to expire September 30, 2009. It is uncertain whether E-Verify will again be authorized for a limited number of years or be authorized as a permanent program.
Monday, August 31, 2009
CCH: Far E-Verify Rule to Start September 8, 2009
CCH Labor and Employment Law online reports that the District Court in Maryland upheld the E-Verify federal contractor rule, which will take effect September 8th. E-Verify employers sign a memorandum of understanding with the CIS that allows investigators to enter the workplace to examine I-9 forms and E-Verify records, similar to an audit but without any advance notice required. The FAR E-Verify regulation requires that federal contractors and certain subcontractors use the E-Verify system for both new employees and existing employees assigned to federal contracts. An estimated 3.8 million persons’ Form I-9 data will be processed electronically. The agencies estimated that in the initial fiscal year (2009) that there will be 168,324 contractors and subcontractors that will be required to use E-Verify
Use Either of the 2009 Form I-9 Versions
USCIS has republished the Form I-9 with an August 7, 2009 revision date to reflect OMB approval of the form until 2012. Employers may use the Form I-9 with the revision date of either August. 7, 2009 or February. 2, 2009. The revision dates are located on the bottom right-hand portion of the form. The latest I-9 form is available in our publications section.
Wednesday, August 19, 2009
IMMIGRATION REFORM NOW
by Charles M. Miller
President Obama’s Mexican trip brought disappointing news to the U.S. Hispanic community: Immigration reform action in Congress would be postponed until 2010. The President cited in his August 9,2009 Mexico City remarks that healthcare reform, energy legislation and financial reform would all come first in 2009. What the President forgot was that first on the American public’s 2009 wish list is economic recovery.
Four days later the Cato Institute, the libertarian, free-market think tank issued a report concerning the effect of immigration reform on the U.S. economy, finding that immigration reform efforts made by Congress and the president could have a major economic impact on the welfare of U.S. households. Debunking popularly held beliefs that the estimated 8.3 million unauthorized workers in the United States lower the incomes of U.S. households, the Cato Institute study concluded that legalization of these workers would actually result in income gains for American workers. The report found legalization would lead to potential gains to U.S. households represented in higher wages, investment income, employment, and government revenue. The report found the net effect to government spending to be manageable compared to the net gains for American workers and their households.
A Wall Street Journal editorial citing the Cato Institute report, found that “re-enforcing the deeply flawed immigration status quo, rather than reforming it, isn’t doing the economy any favors.” The WSJ may be understating the case for the economic need for immigration reform now.
Immigration reform as a phrase has come to mean a compromise between two apparently conflicting goals: The legalization of the estimated 13 million unauthorized persons in the U.S. and the institution of workplace and border enforcement measures that will discourage future illegal entries and employment. That was the grand compromise that was reached in 1986 when President Reagan signed IRCA, the last major immigration reform bill. IRCA legalized 1.7 million unauthorized workers and instituted the I-9 identity and authorization verification system with graduated penalties.
Much has changed since 1986. Hispanics are a major demographic for both the economy and the politics of the U.S. The economic downturn adversely affected the Hispanic worker in America in human terms and as part of the statistics that are now being analyzed. It is clear that one key factor in the return to consumer confidence will be measured by whether the Hispanic consumers return to retail stores in December. What is crystal clear for our country’s economic future is that our nation’s economy will not rebound without a recovery in California, Arizona, Nevada, Colorado, New Mexico and Texas, all states with substantial Hispanic populations.
The question for President Obama and Congress is whether they understand that immigration reform, the grand compromise, will drive the economic recovery. The 13 million persons are here and most of them are employed already. It is important that this segment of the work force be employed under the terms of the laws that affect other American workers: Taxes, Social Security, wage and hour laws need to be enforced. The best way to accomplish this is to provide humane and efficient employment authorization to those workers who deserve the opportunity to work hard and build their own version of the American dream.
Critics of immigration reform have traditionally raised the argument that the newly-legalized workers will take jobs away from U.S. workers. That criticism implies that the unfair hiring practices and exploitation of the undocumented workers do not already exist. The truth is that the undocumented workforce exists in far greater numbers than ever before. The best protection for the unemployed American worker is to make sure that unfair hiring practices do not continue.
An indication that the Obama administration has already made that enforcement decision was its continued support of the FAR E-Verify rule. The Bush administration in 2008 had published a final rule that required government contractors and subcontractors to place a clause in their government contracts requiring the use of the E-Verify electronic verification system. Homeland Security Secretary Janet Napolitano has recently signaled the Obama administration’s continuing support for the FAR rule and the E-Verify system for future U.S. hiring.
Bringing the millions of undocumented workers into the legal system will guarantee that employers who want to obey the law will be able to fill out the I-9 form, and if they are E-Verify member employers, secure confirmation of a legal hiring for compliance purposes.
The economic recovery will fuel more hiring by employers. But without a realistic way of employing a major segment of the U.S. workforce, the existing violations, and the exploitation of the undocumented will continue.
Immigration reform will end two forms of unfair economic advantage that lawbreaking employers currently hold-they hire the undocumented, pay them lower wages and fail to share the tax burden that their lawful competitors disproportionately shoulder. The unfair advantage of unscrupulous companies can only be eliminated by immigration reform in the earliest stages of the recovery. The economic recovery requires immigration reform now.
President Obama’s Mexican trip brought disappointing news to the U.S. Hispanic community: Immigration reform action in Congress would be postponed until 2010. The President cited in his August 9,2009 Mexico City remarks that healthcare reform, energy legislation and financial reform would all come first in 2009. What the President forgot was that first on the American public’s 2009 wish list is economic recovery.
Four days later the Cato Institute, the libertarian, free-market think tank issued a report concerning the effect of immigration reform on the U.S. economy, finding that immigration reform efforts made by Congress and the president could have a major economic impact on the welfare of U.S. households. Debunking popularly held beliefs that the estimated 8.3 million unauthorized workers in the United States lower the incomes of U.S. households, the Cato Institute study concluded that legalization of these workers would actually result in income gains for American workers. The report found legalization would lead to potential gains to U.S. households represented in higher wages, investment income, employment, and government revenue. The report found the net effect to government spending to be manageable compared to the net gains for American workers and their households.
A Wall Street Journal editorial citing the Cato Institute report, found that “re-enforcing the deeply flawed immigration status quo, rather than reforming it, isn’t doing the economy any favors.” The WSJ may be understating the case for the economic need for immigration reform now.
Immigration reform as a phrase has come to mean a compromise between two apparently conflicting goals: The legalization of the estimated 13 million unauthorized persons in the U.S. and the institution of workplace and border enforcement measures that will discourage future illegal entries and employment. That was the grand compromise that was reached in 1986 when President Reagan signed IRCA, the last major immigration reform bill. IRCA legalized 1.7 million unauthorized workers and instituted the I-9 identity and authorization verification system with graduated penalties.
Much has changed since 1986. Hispanics are a major demographic for both the economy and the politics of the U.S. The economic downturn adversely affected the Hispanic worker in America in human terms and as part of the statistics that are now being analyzed. It is clear that one key factor in the return to consumer confidence will be measured by whether the Hispanic consumers return to retail stores in December. What is crystal clear for our country’s economic future is that our nation’s economy will not rebound without a recovery in California, Arizona, Nevada, Colorado, New Mexico and Texas, all states with substantial Hispanic populations.
The question for President Obama and Congress is whether they understand that immigration reform, the grand compromise, will drive the economic recovery. The 13 million persons are here and most of them are employed already. It is important that this segment of the work force be employed under the terms of the laws that affect other American workers: Taxes, Social Security, wage and hour laws need to be enforced. The best way to accomplish this is to provide humane and efficient employment authorization to those workers who deserve the opportunity to work hard and build their own version of the American dream.
Critics of immigration reform have traditionally raised the argument that the newly-legalized workers will take jobs away from U.S. workers. That criticism implies that the unfair hiring practices and exploitation of the undocumented workers do not already exist. The truth is that the undocumented workforce exists in far greater numbers than ever before. The best protection for the unemployed American worker is to make sure that unfair hiring practices do not continue.
An indication that the Obama administration has already made that enforcement decision was its continued support of the FAR E-Verify rule. The Bush administration in 2008 had published a final rule that required government contractors and subcontractors to place a clause in their government contracts requiring the use of the E-Verify electronic verification system. Homeland Security Secretary Janet Napolitano has recently signaled the Obama administration’s continuing support for the FAR rule and the E-Verify system for future U.S. hiring.
Bringing the millions of undocumented workers into the legal system will guarantee that employers who want to obey the law will be able to fill out the I-9 form, and if they are E-Verify member employers, secure confirmation of a legal hiring for compliance purposes.
The economic recovery will fuel more hiring by employers. But without a realistic way of employing a major segment of the U.S. workforce, the existing violations, and the exploitation of the undocumented will continue.
Immigration reform will end two forms of unfair economic advantage that lawbreaking employers currently hold-they hire the undocumented, pay them lower wages and fail to share the tax burden that their lawful competitors disproportionately shoulder. The unfair advantage of unscrupulous companies can only be eliminated by immigration reform in the earliest stages of the recovery. The economic recovery requires immigration reform now.
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